The Issue The issues are as follows: (a) whether Respondent William T. Lindemann, P.E., is guilty of violating Section 471.033(1)(g), Florida Statutes, by engaging in the negligent practice of engineering; and (b) if so, what discipline should be imposed.
Findings Of Fact Stipulated Facts Petitioner is charged with regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed engineer in the State of Florida, having been issued License No. PE 33577. On November 23, 1998, Respondent signed and sealed a dock post detail drawing and calculations directed to Norquist Construction Company, Inc. (Norquist Construction). The drawings and calculations signed and sealed by Respondent on November 23, 1998, do not show compression, moment and shear capacity, or limitation of the dock post. The Florida Legislature has not amended Section 471.033(1)(g), Florida Statues, since October 22, 1999. The Board of Professional Engineers has not amended Rule 61G15-30.005, Florida Administrative Code, since October 22, 1999. The Florida Legislature has not amended the investigative and prosecutorial powers granted to Petitioner in Section 471.038(3), Florida Statutes, since October 22, 1999. Joseph Dougherty furnished information to Petitioner, which was relied upon or referred to in FEMC Case No. 99-00092. Joseph Dougherty furnished information to Petitioner, which was relied upon or referred to in FEMC Case No. 01-0023. Respondent's drawing of November 23, 1998, was never used on the complainant Dougherty's dock. Petitioner's attorney, Douglas Sunshine, Esquire, stated to the Probable Cause Panel that the panel need only look at the four corners of the November 23, 1998, drawing to determine it deficient and negligent. FEMC Case No. 99-00092 against Respondent concerns the same splice joint at issue in the instant case. FEMC Case No. 99-00092 against Respondent was dismissed. Facts Determined at Hearing Respondent has been a professional engineer for over 50 years. Structural engineering always has been the focus of Respondent's professional practice. Mr. McCoy is a professional engineer whose engineering experience primarily involves land development with a focus on drainage, water, and sewers. Prior to signing and sealing the engineering documents at issue here, Mr. McCoy had never designed a structure as a licensed professional engineer. Ken Norquist owns Norquist Construction Company, Inc. Since its creation in 1972, the company has constructed approximately 200 boat docks in Lake County, Florida. In 1995, the Lake County Building Department (Building Department) started requiring contractors to present engineering plans in order to receive building permits for the construction of boat docks. The Building Department did not require the plans to identify a specific project. Instead, the Building Department required a contractor to identify the project when he pulled the building permit. The Building Department held the contractor and not the engineer responsible for project administration on such specific projects. In 1995, the Building Department requested Mr. Norquist to file some standard dock drawings. The Building Department made this request because Mr. Norquist was building the same kind of dock over and over again. In 1995, Mr. Norquist requested Mr. McCoy to review drawings that the construction company allegedly had utilized to build docks in Lake County, Florida, for several years. In fact, the construction company had not used any engineering drawings in the construction of the boat docks because, according to Mr. Norquist, they were "cookie cutter" stuff. By letter dated May 17, 1995, Mr. McCoy submitted a signed and sealed Standard Dock Design to the Building Department. The letter stated that the design had been developed in conjunction with Norquist Construction. The letter stated that Mr. Norquist had successfully constructed the design numerous times in the past. The letter requested the Building Department to place the design on file in an effort to simplify future permit requests for Norquist Construction. Mr. McCoy reviewed but did not create the drawings for the Standard Dock Design (master plan) that he signed, sealed, and submitted on May 17, 1995. There is no evidence that Mr. McCoy was ever retained to become the engineer of record for the construction of any specific boat dock that the Building Department permitted and that Mr. Norquist constructed using the master plans. Mr. McCoy never visited the site of any such construction; no one ever requested him to do so. Mr. McCoy considered the following in reviewing the master plan: (a) boat docks constructed consistent with the drawings would withstand a 100-mile per hour wind load and gravity loads of 100-pounds per square inch; (b) six-by-six inch posts would result in a safe structure; (c) the boat docks, if constructed pursuant to the master plan, would be safe because the displayed dock enclosure measured 10 by 24 feet and the largest boat that could fit in the enclosure was approximately 2,500 to 4,000 pounds; (d) the boat docks would withstand gravity loads of an 8,000-pound boat; and (e) an 8,000-pound boat stored in the dock would cause only a quarter-inch of deflection in the structure. Mr. McCoy reached these conclusions but did not show them on any of his plans. Mr. McCoy made several changes to Mr. Norquist's drawings. Mr. McCoy changed the drawing to show the posts being inserted into the lake bottom five feet, not three feet as originally shown and to show braces installed on the posts. Mr. McCoy's master plan did not show that the posts were spliced. The record is unclear as to when Mr. McCoy first became aware that the posts were spliced. Mr. McCoy did not provide a detail for the assembly of the boatlift on the drawings because it is a pre-engineered structure. Mr. McCoy knew that the owner of the dock would choose the boatlift on a specific project. Mr. Norquist did not request Mr. McCoy to design the details for optional boatlifts that might or might not be installed on a specific boat dock. In March of 1997, the Building Department issued a permit to Norquist Construction to build a boat dock for John Winner in Lake County, Florida. The master plan was included in the permit documents. There is no evidence that Mr. McCoy was aware of this particular permit in 1997. The construction of the Winner boat dock was completed in April 1997. In June 1997, the Building Department issued another permit to Norquist Construction to build a boat dock for Patricia Harvey, who subsequently married Joe Dougherty. Mr. McCoy was not aware of this permit when it was issued in 1997. The Winner and Dougherty boat docks subsequently were under water for approximately 96 days until the water in the lake receded. The owners of the docks became dissatisfied with the condition of their docks. On August 25, 1997, Mr. McCoy submitted a revision to the Standard Dock Design for Norquist Construction to the Building Department. In 1998, Mr. Norquist requested Mr. McCoy to analyze the way in which Mr. Norquist was using post splices in the construction of boat docks. Post splices were not shown on the master plan even though Mr. Norquist had been using them in the construction of boat docks for 15 years. In fact, every dock that Mr. Norquist constructed utilized such dock post splices. The post splices were necessary to allow for the elevation of the docks in the event that the lake had unusually high water. Mr. McCoy performed an analysis and concluded that Mr. Norquist's post splices were safe. However, in an abundance of caution, Mr. McCoy requested Respondent to review the post splice connection for Mr. Norquist. Mr. McCoy made it clear to Respondent that he would be performing the work for Mr. Norquist and not for Mr. McCoy. Before beginning his analysis, Respondent confirmed with Mr. Norquist that the dock post splice would be used to support an open pier, without a shelter, to which a 3,000 pound boat could tie up. Respondent then reviewed the dock post splice construction as requested. He tested the tension loads that could be sustained by the boat dock and concluded that a boat dock constructed with the splice would sustain more than 3,000 pounds of uplift. On April 15, 1998, Respondent signed and sealed the drawing of a post splice connection with a maximum uplift not to exceed 5,000 pounds. Respondent did not create the drawing but signed and sealed the one already in the possession of Mr. Norquist. On or about June 18, 1998, Mr. McCoy signed and sealed what appears to be Respondent's April 15, 1998, drawing. However, Mr. McCoy's drawing shows a maximum uplift not to exceed 3,000 pounds and contains some notes not included with Respondent's drawing. On August 28, 1998, Mr. McCoy submitted a standard post connection detail to the Building Department. The cover letter states that the post connection detail had been developed in conjunction with Norquist Construction. The drawing was an addendum to the dock design on file with the Building Department. In the Fall of 1998, Mr. Norquist requested Respondent to prepare additional post splice detail drawings and calculations for tension load capacity for a generic dock. Respondent once again made sure the post splice detail was not supposed to include columns for boat shelters. Thereafter, Respondent complied with this request, signing and sealing the drawings and calculations on November 23, 1998. The calculations show that the dock would withstand 11,900 pounds of uplift. There is no competent evidence that Respondent was ever retained to become the engineer of record or to perform any work for the construction of any specific boat dock that the Building Department permitted and that Mr. Norquist constructed using Mr. McCoy's master plans. Respondent never visited the site of any such construction; no one ever requested him to do so. By letter dated December 1, 1998, Mr. McCoy advised the Building Department that he was submitting revised detail for a typical dock post splice developed in conjunction with WTL Engineering, Respondent's firm. The letter stated that the documents were submitted as an addendum to the dock design currently on file. The Building Department received Mr. McCoy's December 1, 1998, letter on December 21, 1998. The December 1, 1998, letter covered the post splice detail drawings signed and sealed by Respondent on November 23, 1998. The documents did not identify a specific project or include other information such as load criteria, which is generally required on structural engineering documents. The documents became part of the master plan that was not site-specific. When Mr. McCoy submitted Respondent's November 23, 1998, post splice detail drawings and calculations to the Building Department, he adopted and incorporated Respondent's work into the master plan. However, Mr. McCoy's submittal of Respondent's work does not indicate that Mr. McCoy "delegated" responsibility for the drawings and calculations to Respondent or that Respondent was the "delegated engineer" for a component of the master plan. Instead, Respondent performed the work for Mr. Norquist, not Mr. McCoy. In February 1999, the Building Department wrote Mr. Dougherty a letter regarding his boat dock. The letter stated that the Building Department had requested and Mr. Norquist had submitted certain engineering documents for the boat dock. The letter advised that the Building Department could not complete inspections of the boat dock until Mr. Dougherty allowed Mr. Norquist on the property to finish the construction. In February 1999, a Circuit Judge conducted a civil trial in Winner v. Norquist Construction Company, Inc., Fifth Judicial Circuit in and for Lake County, Florida, Circuit Court Case No. 98-163-CA. In that trial, Respondent testified that he was only requested to design a splice that would withstand 3,000 pounds of uplift but he had designed one that would withstand 11,900 pounds of uplift. On April 22, 1999, the judge entered a Final Judgment finding that Mr. Winner was not entitled to damages. By letter dated May 7, 1999, an attorney representing Mr. Winner and Mr. Dougherty filed a complaint with Petitioner. The complaint alleged that Mr. McCoy's master plan did not show a splice joint detail and that such detail had been filed with the Building Department after the Winner boat dock had been completed. The letter raised engineering concerns regarding the engineering drawings, the splice joints including their ability to withstand 100-mile per hour wind, and the piling depth. Petitioner received this complaint on May 10, 1999. Under cover of a letter dated May 12, 1999, the attorney representing Mr. Winner and Mr. Doughtery sent Petitioner a report prepared by an engineering intern under the direction of Ted Holtz, P.E. According to the report, the intern had examined the Winner boat dock and concluded that it would not withstand 100 miles-per-hour wind. The report also discussed the adequacy or inadequacy of the structure in relation to moment, shear, and deflection, among other things. Based on the complaint filed on behalf of Mr. Winner and Mr. Dougherty, Petitioner initiated investigations to determine if Mr. McCoy and/or Respondent were guilty of negligence in the practice of engineering contrary to Section 471.033(1)(g), Florida Statutes. These investigations resulted in FEMC Case No. 99-00059 against Mr. McCoy and FEMC Case No. 99-00092 against Respondent. On or about July 14, 1999, Stanley Ink, P.E., one of Petitioner's consulting engineers, reported on his review of the case against Mr. McCoy. Mr. Ink reached the following conclusions: (a) the master plan did not show column splices or code criteria for live or wind loads; (b) anchors were noted in the plans but fasteners were not specified; (c) the plans specified No. 4 pine lumber, which is not an approved lumber grade; (d) Respondent's and Mr. McCoy's post splice drawings did not address moment, shear, height of the post or the maximum load on the post; (e) if a boatlift were installed as set forth in the master plan, it would increase loads and forces to the posts; (f) location and weight limitations on the boatlift should have been specified; (g) the master plans were not adequate for the pictured docks because they left too much for a contractor to assume; (h) the Building Department should not have allowed a permit to be issued with this master plan and post splice detail; and (i) both engineers should have placed limits on the splice detail. On or about August 12, 1999, Mr. Ink filed a report on his review of the case against Respondent. Mr. Ink reached the following conclusions: (a) it appears that Mr. McCoy is the project engineer with Respondent brought into the case because he signed a splice detail that was included in the file; (b) the splice detail signed by Respondent in April 1998 is the same detail that Mr. McCoy signed after removing Respondent's name and changing the date; (c) Respondent should not be charged with any violation but he should be cautioned to put a specific limitation on any future drawings; and (d) if Respondent had stated that the splice was to be used in tension only applications, it could not have been used on [the Winner or Dougherty] dock. On October 6, 1999, the Probable Cause Panel met to consider the FEMC Case No. 99-00092 against Respondent. The panel concluded that there was no probable cause to issue an administrative complaint against Respondent. On October 19, 1999, the Probable Cause Panel entered a Closing Order finding no probable cause and dismissing FEMC Case No. 99-00092 against Respondent. That same day, Petitioner sent Respondent a letter advising him that the case was being dismissed. This letter did not contain a caution for Respondent to place appropriate limitations on his drawings in the future. On October 22, 1999, Petitioner issued an Administrative Complaint against Mr. McCoy in FEMC Case No. 99-00059. This case subsequently became DOAH Case No. 99-5136. The 1999 Administrative Complaint against Mr. McCoy referenced Mr. McCoy's master plan as it existed in 1995 and as revised in 1997. The complaint alleged that Mr. McCoy has signed and sealed the design of a dock post splice detail to supplement the master plan in August 1998. It did not reference Respondent's November 23, 1998, dock post splice detail that Mr. McCoy submitted to the Building Department in December 1998. By letter dated November 15, 1999, Respondent offered his support to Mr. McCoy in defending himself before the Probable Cause Panel. Respondent's letter stated that he had reviewed the master plans, finding them structurally adequate and in conformance with the building code adopted by the Building Department. Respondent concurred with the master plan subject to its adaptation to a specific site with the owner specifying the boat load to be accommodated and subject to the Building Department performing inspections. On February 17, 2000, George Hovis, Esquire, representing Mr. McCoy, filed a Motion to Strike and Motion for Costs and Attorney's Fees pursuant to Section 120.569(2)(e), Florida Statutes, in DOAH Case No. 99-5136. The motion reviewed the following facts of the case: (a) Mr. McCoy did not design the splice used on the boatlift in question because the splice design was not created until after the boat dock was constructed; (b) the master plan dated May 17, 1995, did not contain a splice design and had never been questioned; (c) the August 25, 1997, master plan, which was filed months after the Winner dock was completed, had never been questioned; (d) August 28, 1998, was the date that the original L-splice design was filed with the Building Department; (e) Mr. Winner's attorney admitted during the civil trial against Norquist Construction that the November 23, 1998, drawing was prepared well after the Winner dock was constructed; and (f) Mr. McCoy was not named as a party in the Winner civil suit against Norquist Construction. The motion alleged that Petitioner had ignored the findings of the judge in the Winner's civil suit. On February 25, 2000, Petitioner filed a response in opposition to Mr. McCoy's Motion to Strike and Motion for Cost and Attorney's Fees in DOAH Case No. 99-5136. The response states that, based on additional evidence submitted subsequent to the finding of probable cause, Petitioner's counsel had agreed to resubmit DOAH Case No. 99-5136 against Mr. McCoy to the Probable Cause Panel. Subsequently, the Administrative Law Judge in DOAH Case No. 99-5136 placed the case in abeyance. In February 2000, Petitioner submitted the case against Mr. McCoy for review by James Power, P.E., another of Petitioner's consulting engineers. Mr. Power's report dated March 7, 2000, references Mr. McCoy's 1995 master plan and the 1997 revisions to the plan. The report also references Mr. McCoy's August 1998 standard post connection and his December 1998 submittal of a typical dock post splice developed in conjunction with Respondent. In his March 7, 2000, report, Mr. Power concluded that there was no evidence that Mr. McCoy ever accepted responsibility for the design, construction, or inspection of the Winner or Dougherty docks. He noted that none of the drawings signed and sealed by Mr. McCoy referred to a specific project. According to Mr. Power's report, Mr. McCoy was not responsible for the Building Department's issuance of improper permits. Finally, Mr. Power opined that he could find no evidence to justify a charge against Mr. McCoy. By letter dated April 5, 2000, Petitioner's counsel advised the Building Department that Petitioner had filed an Administrative Complaint against Mr. McCoy, alleging negligence in the practice of engineering due to structural deficiencies in the master plan. The letter stated that Petitioner was concerned because the Building Department was not requesting project-specific engineering plans but was issuing permits based on the master plan. Petitioner requested Mr. Power to review the case against Mr. McCoy for a second time. In a report dated June 6, 2000, Mr. Power referenced the standard dock drawings submitted by Mr. McCoy in May 1995, August 1997, and August 1998. Once again Mr. Power opined as follows: (a) Mr. McCoy's submissions to the Building Department were not sufficiently complete to justify the issuance of building permits; (b) it was regrettable that Mr. McCoy allowed his drawings to be used as he did but that the Building Department was responsible for issuing the permits; (c) Mr. McCoy's drawings were of marginal quality but acceptable if supplemented by complete drawings of a specific installation; (d) the splice detail does not specify where or under what circumstances it is to be used; (e) the splice detail contained a drafting error; (f) Mr. McCoy was not obligated to provide a design for any structure, which might make use of his splice detail; and (g) it was for an engineer of record, a role Mr. McCoy never undertook, to determine the suitability of the detail in a specific structure for which the engineer of record had assumed design responsibility. In sum, Mr. Power disapproved of the Building Department's permitting policy and the manner in which Mr. McCoy's drawings were used but he did not believe the evidence justified a charge of negligence against Mr. McCoy. After receiving Mr. Power's reports, Mr. McCoy's attorney and Petitioner's counsel agreed that Petitioner would resubmit the case against Mr. McCoy to the Probable Cause Panel with a recommendation to dismiss the case without further prosecution. Mr. McCoy agreed to withdraw his Motion for Costs and Attorney's Fees and to specify all limitations on the use of his future drawings. Upon learning that Petitioner might dismiss the Administrative Complaint against Mr. McCoy, Mr. Dougherty became concerned. Petitioner's former president responded to Mr. Dougherty's concerns in a letter dated June 15, 2000. The letter stated that Petitioner's consulting engineer had concluded that Mr. McCoy was not negligent in preparing and submitting the master plan to the Building Department. The letter also stated that the Winner and Dougherty docks were not the same or similar to the dock in the master plan. According to the letter, there was no evidence that Mr. McCoy designed the Winner and Dougherty docks. On July 13, 2000, the Probable Cause Panel discussed the case against Mr. McCoy. Based on the prosecutor's recommendation and review of the entire file including Mr. Power's reports, the panel decided to find no probable cause and to dismiss the case against Mr. McCoy without further prosecution. On July 28, 2000, the Probable Cause Panel issued a Closing Order in FEMC Case No. 99-00059. The order stated that the case would be dismissed with a letter to Mr. McCoy advising him in the future to specify on his plans conditions under which his seal was not valid. On August 2, 2000, Petitioner's counsel filed a Status Report in DOAH Case No. 99-5136. This pleading stated that the Probable Cause Panel had reconsidered the case, closing it without further prosecution. The pleading requested the Administrative Law Judge to close the file. By letter dated August 2, 2000, Petitioner advised Mr. McCoy that the Probable Cause Panel had reconsidered his case and directed the case to be dismissed without further prosecution. The letter also advised Mr. McCoy that in the future he should specify on the face of his plans any limitations or conditions under which his seal would not be valid. Mr. McCoy has complied with this request. The Administrative Law Judge entered an Order Closing File in DOAH Case No. 99-5136 on August 17, 2000. Subsequently, Mr. Dougherty contacted Petitioner's prosecuting attorney by telephone. The prosecuting attorney advised Mr. Dougherty that if Petitioner were presented with new evidence showing that Mr. McCoy was the engineer of record for his dock, Petitioner would reopen the case against Mr. McCoy. In February 2001, Mr. Dougherty furnished Petitioner with the deposition testimony of one of the Building Department's inspectors. The deposition testimony had been taken in August 22, 2000, in conjunction with a civil suit filed by Mr. Dougherty against Norquist Construction. See Joseph Dougherty and Patricia Dougherty v. Norquist Construction Company, Inc., Fifth Judicial Circuit in and for Lake County, Florida, Circuit Court Case No. 98-986 CA. The deposition testimony indicated that Mr. McCoy was the engineer of record for the Dougherty boat dock. This was the first time that the deposition testimony had been provided to Petitioner. Mr. Dougherty's second complaint also included the following: (a) a copy of Respondent's November 15, 1999, letter, offering to support Mr. McCoy in his defense of Petitioner's 1999 case against Mr. McCoy; (b) a report prepared by R. Alan Lougheed of Lougheed Resource Group, Inc.; and (c) a report prepared by Robert White. After receiving Mr. Dougherty's second complaint, Petitioner's investigator reviewed Mr. McCoy's and Respondent's files. He determined that, in the prior cases against Mr. McCoy and Respondent, Petitioner had overlooked whether the master plan and post splice detail contained information regarding the capacity of structures built pursuant to the plans to withstand a 100 mile-per-hour wind. Therefore, Petitioner's investigator concluded that Mr. Dougherty's second complaint did not represent an exact duplicate of the 1999 cases against Mr. McCoy and Respondent. Petitioner subsequently opened FEMC Cases No. 01-0022 and 01-0023 against Mr. McCoy and Respondent respectively. Petitioner's investigator referred Mr. McCoy's and Respondent's files to another consulting engineer, Iqbal Shaikh, P.E. The purpose of the referral was to determine once again if Mr. McCoy and/or Respondent had committed negligence in the practice of engineering. In a report dated August 16, 2001, Iqbal Shaikh, P.E., sets forth the documents that he reviewed in both cases. These documents included the following: (a) Mr. Dougherty's second complaint; (b) Mr. McCoy's 1995 master plan; (c) Mr. McCoy's August 28, 1998, post connection splice detail; (d) Respondent's November 15, 1999, letter; (e) Respondent's November 23, 1998, post splice drawings and calculations; (f) the August 22, 2000, deposition testimony of the Building Department's inspector; and an inspection report prepared by Lougheed Resource Group, Inc. Mr. Shaikh's report found that Mr. McCoy's work was deficient for the following reasons: (a) the 1995 master plan did not identify the project, show design load criteria for wind loads and gravity load, or show the details for the assembly of the laminated lift beam; and (b) the December 1998 submittal of Respondent's November 23, 1998, post splice detail drawings and calculations did not identify the project and only showed tension load without showing compression, moment, and shear capacity of the splice. Mr. Shaihk's report states that Respondent's November 23, 1998, drawings and calculations were deficient because they failed to identify the project and they did not show compression, moment, and shear capacity or limitation of the splice detail. Based on Mr. Shaikh's report, Petitioner issued the Administrative Complaint against the Mr. McCoy in FEMC Case No. 01-0022 (DOAH Case No. 01-4756PL). Petitioner also issued the Administrative Complaint against Respondent in FEMC Case No. 01-0023, which became the instant case. The parties agreed to present the deposition testimony of Mr. Power in lieu of testimony at hearing. Mr. Power testified that he would not rely solely on the testimony of a building inspector to determine whether Mr. McCoy was engineer of record for the Dougherty dock. Mr. Power reaffirmed his earlier opinions that Mr. McCoy was not the engineer or record for any specific dock and that he was not guilty of negligence or of violating a rule because the master plan and parts thereof were not site-specific. Mr. Power's testimony is credited here. On the other hand, Petitioner presented the testimony of Nasir Alam, P.E., another of Petitioner's consulting engineers and a member of Mr. Shaikh's firm. Mr. Alam testified that Mr. McCoy was the engineer of record for any projects constructed using the master plan signed and sealed by Mr. McCoy. Mr. Alam testified that Mr. McCoy was the engineer of record for the November 23, 1998, post splice detail drawings and calculations if Mr. McCoy had submitted those documents to the Building Department after delegating the responsibility for them to Respondent. Mr. Alam also testified that it was immaterial to this case whether Mr. McCoy or Respondent was engineer of record for the Dougherty dock because the master plan and post splice detail drawings and calculations on their face represented the negligent practice of engineering. Mr. Alam's testimony is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint and denying Respondent's motion for costs and attorney's fees pursuant to Section 120.595, Florida Statutes. DONE AND ENTERED this 9th day of July, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 9th day of July, 2002. COPIES FURNISHED: Michael C. Norvell, Esquire Michael C. Norvell, P.A. Post Office Box 491615 Leesburg, Florida 34749-1615 Douglas Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether Terry Carlson's application to construct and install a single-family dock in Lee County, Florida, is exempt from the need for an Environmental Resource Permit.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On April 27, 2007, Mr. Carlson filed with the Department an application to modify a single-family dock in a man-altered waterbody in Section 13, Township 46 South, Range 23 East, Lee County (County), Florida. In geographic terms, the property is located at 18570 Deep Passage Lane, which is at the base of a peninsula which extends for around one-half mile south of Siesta Drive, a roadway that appears to be in an unincorporated area of the County between the Cities of Fort Myers and Fort Myers Beach. See Carlson Exhibits 10A and 10B. Although Respondents have not stipulated to the facts necessary to establish Petitioner's standing, that issue is not identified in the parties' Joint Prehearing Stipulation as being in dispute. Because no member of the Association testified at final hearing, the number of members in the Association, the number who operate boats and their size, and the nature and purpose of the organization are not of record.5 It can be inferred from the record at the final hearing, however, that at least one member of the Association, Mr. Kowalski, who lives at 12228 Siesta Drive, operates a boat on the affected waterway. Carlson Exhibits 10A and 10B are maps of the general area and reflect that Siesta Drive begins at an intersection with San Carlos Boulevard (also known as County Road 865) to the east and terminates a few hundred yards to the west. (County Road 865 is a major roadway which connects Fort Myers and Fort Myers Beach.) On the south side of Siesta Drive are three man- made, finger-shaped canals, which extend to the south and provide access for boaters to the Gulf of Mexico. According to one expert, the finger canals are between one-fourth and three- quarters of a mile in length. The canals run in a straight line south for perhaps two-thirds of their length, then bend slightly to the southwest at "elbows" located a few hundred feet north of their outlets. Basins are located at the northern end of each canal. The third canal is the western most of the three canals and is at issue here. Carlson Exhibit 9 (an aerial photograph) reflects that a number of single-family residences, virtually all of whom have docks, are located on both sides of two peninsulas which lie between the three canals. Mr. Carlson owns property on the southern end of the peninsula between the second and third finger canals. It can be inferred from the record that Mr. Kowalski resides in or close to the basin in the third canal. Boaters wishing to depart the third canal must travel south to the end of the canal, make a ninety-degree turn to the east, pass through a channel which lies directly south of Mr. Carlson's proposed dock, head slightly northeast for a short distance, and then make another ninety-degree turn to the south in order to gain access to a channel (directly south of the second finger canal) leading into Pelican Bay and eventually the Gulf of Mexico, approximately one mile away. Boaters entering the third finger canal would travel in a reverse direction. At the point where the dock will be constructed, the channel appears to be around two-hundred fifty feet wide (from the applicant's shoreline to a cluster of mangrove trees to the south), but much of the channel, as well as the three canals themselves, have a soft bottom consisting of sand and silt, which limits the speed and accessibility of vessels. The original application requested authorization to construct a floating dock anchored by concrete pilings at the southern end of the finger canal in front of Mr. Carlson's property. (The proposed dock replaces an older wooden dock which has now been removed.) That application represented that the dock is private and less than 1,000 square feet; it is not located in Outstanding Florida Waters; it will be used for recreational, noncommercial activities associated with the mooring or storage of boats and boat paraphernalia; it is the sole dock constructed pursuant to the requested exemption as measured along the shoreline for a minimum distance of sixty- five feet; no dredging or filling will occur except that which is necessary to install the pilings necessary to secure the dock in place; and based upon the depth of the water shown in accompanying documents and the dock's location, the dock will not substantially impede the flow of water or create a navigational hazard. These representations, if true, qualify the dock for an exemption from permitting by the Department. See § 403.813(2)(b), Fla. Stat.6; Fla. Admin. Code R. 40E- 4.051(3)(b)1.-4. Based upon the information supplied in Mr. Carlson's application, Mark R. Miller, Submerged Lands and Environmental Resource Program Manager in the Department's South District Office (Fort Myers), issued a letter on May 8, 2007, advising Mr. Carlson that his application qualified for an exemption from Department permitting requirements and that the letter was his "authorization to use state owned submerged land (if applicable) for the construction of [his] project." After receiving the Department's first letter, Mr. Carlson elected not to publish notice of the Department's decision or provide notice by certified mail to any third parties.7 Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. The parties no longer dispute that after the Association received actual notice of the construction activities, it filed a request for a hearing within twenty-one days, or on December 26, 2007. Therefore, the request for a hearing is deemed to be timely. Section 403.813(2)(b)3., Florida Statutes, and Florida Administrative Code Rule 40E-4.051(3)(b)3. are identical in wording and provide that in order to qualify for an exemption, a dock "[s]hall not substantially impede the flow of water or create a navigation hazard." In its Petition, the Association contended that this requirement had not been satisfied. It also contended that the documents used in support of the initial application may not be valid. In the parties' Joint Prehearing Stipulation, the Association clarified this objection by contending that the exemption may have expired because site conditions have materially changed from those initially reviewed by the Department. This allegation is presumably based on the fact that during the course of this proceeding, Respondent submitted two revisions to its original construction plans. Sometime after the first letter was issued, new information came to light and on May 16, 2008, Mr. Miller issued a Revised Letter which stated that the Department had "determined that the proposed project as described in the above referenced application . . . does not involve the use of sovereignty submerged lands[,]" and that "no further authorization will be required from the Submerged lands and Environmental Resources Program." See Department Exhibit 2, which is a disclaimer for the relevant waters issued by the Board of Trustees of the Internal Improvement Trust Fund. The effect of the disclaimer was to render Florida Administrative Code Rule Chapter 18-21 inapplicable to this proceeding. By the time the Revised Letter had been issued, the original application had been revised twice, the last occurring sometime prior to the issuance of the Revised Letter. Among other things, the size of the dock has been increased to 997 square feet, and the dock will be placed nineteen feet landward and westward (or twenty-five feet east of Mr. Carlson's western property boundary) of the initial dock design for the purpose of improving navigation and creating less of an inconvenience to other boaters. The dock will now be located twenty-five feet from the seawall and is approximately seventy feet long and eight feet, five inches wide. A gangplank and floating platforms provide a walkway from the seawall to the proposed dock. On the western edge of the dock, running perpendicular to the seawall, will be pilings that will accommodate a boat lift for one of Mr. Carlson's boats. (The record reflects that Mr. Carlson intends to moor a forty-eight-foot Viking with a width of approximately sixteen feet, six inches, on the outside of the dock, parallel to the seawall, while a second boat will be stored in the boat lift.) A floating platform is located seaward of the main dock to allow access to the boat on the boat lift. After reviewing these changes, Mr. Miller reaffirmed his earlier determination and concluded that all criteria had still been met. In conjunction with the initial application, a Specific Purpose Survey of the channel dimensions was prepared by a professional surveyor, Mr. Timothy Mann, which reflects the bottom elevations of the channel in front of Mr. Carlson's property. The bottom elevations were calculated by taking manual and electronic readings using the national geodetic vertical datum (NGVD) of 1929. This method is accepted in the surveying and mapping industry to calculate bottom elevations. The survey was signed and sealed by Mr. Mann. The updated applications relied upon the same survey. In calculating the water depth, Mr. Mann subtracted the mean low tide in the Pelican Bay area from the bottom elevation survey. Mean low tide is an elevation of the average low tide over a nineteen year period. Mr. Mann obtained these average low tide records from the State. Mean low tide for the Pelican Bay area was determined to be approximately -0.5 NGVD. Therefore, if Mr. Mann's survey showed a depth of -7.77 feet, the water depth would be -7.27 feet. The survey reflects that there is at least a sixty-foot wide area beyond the proposed dock with depths at mean low water of between four and five feet. See Carlson Exhibits 7A and 7B. The mean low water survey adds further justification for the Department's determination because it is not required by the Department, and applicants do not normally submit one. It should be noted that although the Department has no rule for how deep a channel needs to be, a three-foot depth is typically used. To satisfy the navigation concern raised by Petitioner, Mr. Carlson engaged the services of two long-time licensed boat captains, both of whom were accepted as experts. Besides reviewing the dock design, on May 13, 2008, Captain Joe Verdino navigated the entire length of the third finger canal using a thirty-foot boat with a five-foot beam and twenty-four inch draft. The boat was equipped with a GPS sonar calibrated at the hull of the craft to verify the depth of the water shown in the Specific Purpose Survey. Based upon his measurements, Captain Verdino determined that there is at least another sixty feet beyond the proposed dock for other vessels to safely travel through the channel and that vessels with a draft of four to five feet would be able to safely navigate the area. Therefore, he concluded that a fifty-five-foot boat with a sixteen to eighteen-foot beam could safely navigate on the channel. Even though the measurements were taken when the canal was closer to high tide than low tide, the witness stated that this consideration would not alter his conclusions. He further opined that wind is not a major factor in this area because the channel is "well-guarded" by Fort Myers Beach, which essentially serves as a large barrier island to the southwest. He discounted the possibility of navigational concerns during nighttime hours since boats have lights for night travel. Significantly, he noted that the tightest navigable area in the third canal is at an elbow located several hundred feet north of Mr. Carlson's property, where a dock extends into the canal at the bend. Therefore, if vessels could navigate through a narrower passageway further north on the canal, then vessels would have no difficulty navigating safely in front of Mr. Carlson's proposed dock. After reviewing the plans for the proposed dock, Captain Michael Bailey also navigated the third canal and concluded that the canal can be safely traversed by a fifty-two- foot boat. This is the largest boat presently moored on the third canal. After Mr. Carlson's dock is constructed, he opined that there is at least "fifty plus" feet and probably sixty feet of width for other boats to navigate the channel, even if a forty-eight-foot boat is moored at Mr. Carlson's dock. In reaching these conclusions, Captain Bailey used a PVC pipe and staked out depths in the channel beyond the proposed dock to verify the figures reflected in the Specific Purpose Survey. PVC pipes provide the most accurate measurement of the actual distance from the water's surface to the bottom of the channel. Like Captain Verdino, he noted that the narrowest point on the canal was at the elbow several hundred feet north of the proposed dock where boats must navigate between a private dock on one side and mangrove trees on the other. Captain Bailey discounted the possibility of navigational hazards during nighttime hours since a prudent mariner always travels slowly and would not enter a finger canal at nighttime unless he had lights on the boat. Mr. Mark Miller also deemed the navigation issue to be satisfied. He did so after reviewing the Specific Purpose Survey, the aerial photograph, the location of the dock, the results of a site inspection, and other dock applications for that area that had been filed with his office. Based upon all of this information, Mr. Miller concluded that there is an approximate sixty-foot distance to the south, southeast, and southwest beyond Mr. Carlson's dock before the waters turn shallow (less than four to five feet deep), and that the dock would not pose a navigational hazard. In response to Petitioner's contention that the third set of drawings was not signed and sealed by a professional surveyor, Mr. Miller clarified that drawings for dock applications do not have to be signed and sealed. (The third set of drawings was based on the first set submitted to the Department, and which was signed and sealed by a professional surveyor.) He also responded to an objection that the Department's review did not take into account the size of the boat that Mr. Carlson intended to dock at his facility. As to this concern, Mr. Miller pointed out that the Department's inquiry is restricted to the installation of the dock only, and not the size of the boat that the owner may intend to use. Finally, even though the County requires that a building permit be secured before the dock can be constructed, and has its own standards, that issue is not a statutory or rule concern in the Department's exemption process.8 Petitioner further alleged that site conditions have materially changed since the original application was filed and that the exemption determination should automatically expire. (This allegation parrots boilerplate language used in the Rights of Affected Parties portion of the Department's two letters.) As to this contention, the evidence shows that the applicant revised its dock plans twice after its initial submission. The Association does not contend that it was unaware of these changes or that it did not have sufficient time to respond to them prior to final hearing. The third (and final) revision is attached to Respondents' Joint Exhibit 2 (the Revised Letter) and indicates that the dock will be 997 square feet, which is larger than that originally proposed, but is still "1000 square feet or less of surface area," which is within the size limitation allowed by the rule and statute. It will also be further west and closer to Mr. Carlson's seawall. These revisions do not constitute a substantial change in site conditions, as contemplated by the Department in its exemption process. In order to have materially changed site conditions, Mr. Miller explained that there must be an event such as a hurricane that substantially alters the nature of the channel. Therefore, there is no basis to find that a material change in site conditions has occurred and that the original determination of exemption, as revised, should automatically expire. Petitioner presented the testimony of Captain Marcus Carson, a licensed boat captain, who moved to the Fort Myers area in 2000. He noted that the three canals (known as "the three finger area") have always been a "little hazardous" and because of this he cautioned that only residents familiar with the waters should use them. On May 12, 2008, he accompanied Mr. Kowalski on a "brief trip" in Mr. Kowalski's boat up and down the third canal. Using a dock pole to measure depths, he found the deepest areas of the channel below Mr. Carlson's home to be between 4.6 and 5.0 feet. However, he conceded that a dock pole is not as accurate as a PVC pipe, which Captain Bailey used to take the same type of measurements. Based upon the first set of plans, which he used in formulating his opinions, Captain Carson criticized the dock as being "out of place," "overbearing," and not aesthetically pleasing. He also opined that once the dock is constructed, the channel would be too small for two fifty-foot boats to pass through the channel at the same time. However, these conclusions are based upon the assumption that the original dock plans and pilings would be used. The witness agreed that if the original plans have been modified, as they have, and the dock moved further west and closer to the seawall, he would have to reevaluate his opinions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Mr. Carlson's project is exempt from its permitting requirements. DONE AND ENTERED this 27th day of June, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2008.
The Issue The issues are whether Respondent, Bayhead Landings Property Owners Association, Inc.; Kimberly Lee, president; William Barthle, Architectural Review Committee (ARC) member; and Tony Kolka, ARC member, discriminated against John and Kimberly Whitt,1/ on the basis of Mr. Whitt's physical handicap in violation of the Florida Fair Housing Act (the Act), and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Bayhead Landings Subdivision (Bayhead) is a deed- restricted community for which the Bayhead Landings Property Owners Association, Inc., was organized to operate and administer. Deed restrictions have been in place since 1990 and will continue in place until at least January 2031.4/ It remains unclear how many Bayhead parcels front the lake in question. There are four to five existing docks in that lake; however, none of those existing docks extend more than 80 to 100 feet into the lake. The Declaration of Covenants, Conditions, and Restrictions for Bayhead provide in pertinent part: 6.(a) For the purpose of further insuring the development of said land as a residential/agricultural area of highest quality and standard, and in order that all improvements on each lot shall present an attractive and pleasing appearance from all sides of view, there shall be a Committee consisting of no less than three (3) persons appointed to review plans and specifications, . . . . (b) The Committee reserves the exclusive power and discretion to control and approve all of the buildings, structures and other improvements on each lot or parcel in the manner and to the extent set forth herein. No residence, . . . or other structure or improvement, regardless of size or purpose . . . shall be commenced, placed, erected or allowed to remain on any lot or parcel, . . . unless and until building plans and specifications covering same showing the shape, height, size, location and orientation on the lot, floor plans, square footage, front, side and rear elevations, materials to be incorporated and exterior color schemes . . . have been submitted to and approved in writing by the Committee. * * * (d) As a prerequisite to consideration for approval, and prior to commencement of the contemplated work, a complete set of plans and specifications must be submitted to the Committee. . . . . The purpose of the ARC is to ensure that any development in Bayhead maintains the "community standards and deed restrictions" and is of the "highest quality and standard." To ensure that goal is met, the ARC is to receive a complete set of plans and specifications prior to the work starting. Mr. Whitt has a physical handicap as defined by the Act, section 760.22(7)(a). Mr. Whitt is confined to a wheelchair for mobility. The Whitts' backyard property has a significant slope downhill or drop-off towards the lake. The area between the house and the lake is muddy for a long distance, the terrain is uneven, and it is not suitable for a wheelchair to traverse. No evidence was received as to the actual distances between the house and either the drop-off area or where the terrain becomes uneven in the Whitts' backyard. The water level in the lake has been relatively low for some time; however, there is some water in it now. On September 7, 2010, Mr. Whitt submitted a proposed estimate and architectural review application to Respondents' ARC, seeking approval to construct a stationary dock on the Whitts' property (dock application). This dock application was the first received by the ARC in many years, and there is no evidence of any prior applications to build a stationary dock.5/ The dock application (Petitioners' Exhibit 3) included a three-page proposal (Proposal) from Coastal Construction; Gulfside Docks6/ that included the following "SPECIFICATIONS": Timber Piles 2.5CCA • Frame/Stringers/Caps 2" x 8" • Dock Lumber Pressure Treated .40 • Dock Bolts 5/8" HDG • SS Nails/Screws The Proposal also contained the following "STATIONARY DOCK" information: Construct new 300' x 5' dock with 20 x 16 head. We will add 2" x 2" lumber along perimeter of dock to act as bumper system Decking will be #1 pressure treated decking. Stainless Steel Screws will be used to secure deck boards The dock application did not contain any specific references to the dock being "wheelchair accessible"; however, it did contain information about a bumper system. The second proposal (Petitioners' Exhibit 10) contained the same "SPECIFICATIONS." The second proposal contained similar information regarding the "STATIONARY DOCK"; however, the language regarding the bumper system was altered to reflect "Install 2" x 2" wheel chair safety bumper around entire perimeter of dock - Approx. 663'LF. Stainless steel screws will be used as fasteners." On September 19, 2010, William Barthle, a member of the ARC, sent an e-mail to Mr. Whitt. The e-mail provided Mr. Whitt with a portion of Bayhead's deed restrictions and requested "WE NEED A DIAGRAM OF DOCKS [sic] PLACEMENT ON PROPERTY AS REFERENCED IN DOCS." On September 27, 2010, Mr. Whitt sent a plat map to the ARC with a hand-drawn dock sketched on it. The hand-drawing was not to scale and failed to provide detailed measurements of where the dock was to begin in relation to the residence or shed that were already on the property. Further, there was no rendering of what the dock itself would look like. On October 10, 2010, the ARC sent Mr. Whitt a letter requesting four specific items in order for the ARC to consider the dock application, including: Square footage of dock Height of dock The exact location of the dock on your property (distance from your house and distance from property line on each side, distance from any setback easement, or wetlands buffer boundary) A letter from Southwest Florida Water Management District approving the placement, length and location (starting/ending) of the dock Mr. Whitt's June 22, 2011, response letter (eight months later) to the request failed to provide the requested information. As of December 12, 2012, the Whitts had not provided the requested information. Mr. Barthle and Graeme Woodbrook both served on the ARC when the Whitts' dock application was submitted. Both gentlemen credibly testified that the Whitts' dock application failed to provide enough information to allow them to make a decision about it. Further, Mr. Woodbrook admitted he has some physical limitations and is sympathetic to people who have disabilities. While both men knew Mr. Whitt was confined to a wheelchair, neither knew why Mr. Whitt had to use it. Other ARC applications were admitted into evidence. These ARC applications involved: painting the exterior of a primary residence (two separate requests); landscaping in the front yard of a residence for a non-permanent 6' x 8' fish pond; replacing a playground set; resurfacing a pool deck, patio, and front porch entry; resurfacing a driveway; and extending a present screen porch. Of the three ARC applications that involved some type of new construction (fish pond, playground set, and porch extension), each contained pictures, dimensions, and/or diagrams sufficient for the reviewer to appreciate where the project was being constructed in relation to the house and property lines.7/ As of December 12, 2012, Respondent had neither approved nor rejected the Whitts' dock application. That application is simply not complete without the requested information. The dock application remains "pending," awaiting receipt of the requested information. The Whitts' position that they have provided everything that the builder has provided them is insufficient to provide the ARC with the requisite information to know where the dock will begin on the Whitts' property; how far out the dock will extend into the lake; and what the structure will look like.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed on behalf of Mr. and Mrs. Whitt. DONE AND ENTERED this 15th day of February, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2013.
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 Parties Mr. Boynton has applied for a dredge and fill permit to construct a dock to allow him access to an island which he owns in Lake Iamonia in Leon County, Florida. Petitioners Wilkinson, Frye, Gary, Pennington, Dunlap and Buford 1/ are riparian landowners who use the waters of Lake Iamonia for recreation, fishing and duck hunting. The Respondent Department of Environmental Regulation is the state agency charged with the responsibility of enforcing the state statutes and rules regulating water quality and dredging and filling in the waters of the State of Florida. Nature of Project According to his application (as amended at the final hearing) Mr. Boynton requests a dredge and fill permit to construct a boat dock which will be 150 feet long and 10 feet wide. It will be strong enough to support a motor vehicle. Mr. Boynton owns a parcel of land on the west shore of Lake Iamonia just north of what is known as the North Meridian Road Bridge. He also owns Island #33, known locally as Live Oak Island, which is 300 feet east of the mainland. Between the mainland and the island is a neck of the lake which is a shallow slough. As proposed the dock will extend from the west side of the island toward Mr. Boynton's mainland parcel at approximately the narrowest portion of the slough. The dock will be constructed of creosoted pilings and planks. The pilings are to be sunk into the lake bottom by jetting to a depth of 10 to 12 feet. Mr. Boynton plans to construct a hunting cabin on his island. The purpose of the dock is to allow him to transport supplies to the cabin from the mainland by means of a small boat. In order to supply electric power to the planned cabin Mr. Boynton also applied for a permit to construct a subaqueous cable crossing between the mainland and the island. No objection to the cable crossing has been raised by Petitioners. In 1981 Mr. Boynton filed an application with both the Department of Environmental Regulation and the Department of Natural Resources for permits to construct a 300 foot long bridge from the mainland to his island in the same location as the proposed dock. The bridge application generated considerable opposition from adjacent landowners on the lake and as a result, Mr. Boynton stayed his application. In November 1981 he wrote a letter to the Department of Natural Resources which stated: November 2, 1981 Ted Forsgren Department of Natural Resources Tallahassee, Florida 32303 RE: Case #81-1910 Dear Ted: Please do not submit a report to the Cabinet for the bridge permit I had requested. I would prefer there be no position stated either pro or con about this project. Sincerely, /s/ Ben C Boynton Mr. Boynton later stated in a letter dated April 8, 1982 to Mr. William Williams at the Department of Natural Resources that: I have stopped the bridge application. This is not to be construed as a withdrawal of the application. I plan to resume the re- quest at a later date. I have earlier sent a letter to Mr. Ted Forestgren, permitting, DNR, stating the same. Should there be any other information requested, please let me know. Much of the opposition from Petitioners to the proposed dock application is founded in a fear that the dock is just a first step in later constructing a bridge. This fear is reasonable. The proposed dock is precisely half of the original proposed bridge. At the final hearing Mr. Boynton was unable to provide a reasonable explanation of why he needs such a large dock to service a simple hunting cabin. Water Quality and Wildlife Impact The impact of the proposed dock on water quality in Lake Iamonia is insignificant. Lake Iamonia is a Class III water of the State of Florida. The proposed placement of pilings in the lake bottom will cause some turbidity for a short duration. This turbidity can be adequately controlled by the use of turbidity curtains at the time of construction. Petitioners have raised no objection in their Petition for Formal Hearing to the dock on the basis of water quality and it did not became an issue at the final hearing. Some impact by the dock on wild ducks was alleged by Petitioners. Lake Iamonia is a wintering area for certain migratory waterfowl most notably, the ringneck duck. Most of the Petitioners are hunters who are concerned about preserving their recreational interest in killing the ringnecks. As with water quality, the impact of the dock on waterfowl will be de minimis. Ducks are wary of any new man-made structure and a dock of the size proposed here is certain to be noticed by them. They will initially be "blind shy" of the dock, but will readily adapt to its presence. Were there to be constant human activity on the dock, it would have a noticeable effect on the ducks' flight paths. The occasional off-loading of supplies for a hunting cabin will frighten few, if any ducks. There are other structures, such as the residences of other riparian owners, and docks along the lake shore which have not frightened the ducks away. The fearless ringnecks even tolerate being shot at, yet return to the lake annually. At the final hearing Petitioners recognized the de minimis impact of the proposed dock on wildlife and water quality. Their concern is that the dock is the first step toward constructing a bridge and that the permitting of such a bridge will unleash an avalanche of additional permit applications for the development of the numerous islands in Lake Iamonia. With respect to Lake Iamonia no evidence was presented at the final hearing of a significant number of dock permit applications or of any bridge applications before the Department of Environmental Regulation. If enough structures were permitted by the Department to begin serious consideration of cumulative impact on the lake, the precedent of having permitted the first few docks would not be binding upon the Department because the facts on which the first permits were based would be different from those facts before the Department on consideration of the later applications. Navigation The slough between the mainland and Live Oak island is navigable by only small craft such as johnboats and canoes. There is a "channel" which runs north-south through the slough at a depth of several feet. Even though the proposed dock projects halfway to the mainland it will not block the channel. DNR Consent The submerged land over which the proposed dock will be constructed belongs to the State of Florida. Mr. Boynton has requested permission from the Department of Natural Resources (DNR) to use the land. Permission for the construction of a dock longer than 100 feet long was conditionally granted by DNR in a letter dated June 4, 1982 which said in part: We recognize that the lake is very shallow in the proposed dock location and the length was designed to avoid dredging. However, we can not recommend approval of a 200 foot long dock across this 300 foot wide area of the lake. We would have no objections to a 100 foot long dock. Additionally, should you ob- tain written statements of no objection from the adjacent landowners currently living on Lake Iamonia for a 150 foot long dock, we would then have no objections to a dock of that length. Our approval of a docking facility does not in any way indicate a favorable Position to- wards your previous bridge easement request which you have withdrawn. The use of state owned lands to construct a bridge would be in conflict with current rules and policies. Our intent in approving the docking facility is to allow you to have reasonable ingress and egress to your island. Consider this the authority sought under Section 253.77, Florida Statutes, to pursue this project upon our receipt of the revised drawings indicating a reduced length of 100 feet or the no objection statements for a re- vised length of 150 feet. This letter in no way waives the authority and/or jurisdiction of any governmental entity nor does this letter disclaim any title in- terest that the State may have in this project site. Sincerely, /s/ Henry Dean Interim Director Division of State Lands (Emphasis added)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order issuing a permit to Ben C. Boynton for the construction of a 150 foot by 10 foot dock and subaqueous cable crossing in Lake Iamonia as requested in his permit application, subject however, to obtaining a letter from the Department of Natural Resources indicating that Mr. Boynton has satisfied the terms outlined in the letter dated June 4, 1982 granting consent to use state owned submerged lands. DONE and RECOMMENDED this 15th day of December, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 15th day of December, 1982.
The Issue Whether or not Petitioner should be granted a dredge and fill permit for construction of a multi-family dock in either of the two configurations proposed in its application filed pursuant to Section 403.918 Florida Statutes.
Findings Of Fact Petitioner Secret Oaks Owners' Association, Inc. is a not-for-profit Florida corporation with its principal place of business in First Cove, St. Johns County, Florida. DER is the State agency charged with the responsibility of reviewing permits under Chapter 403, Florida Statutes and its applicable rules. Martin Parlato and his wife Linda Parlato are the owners of, and reside on, Lot 10, Secret Oaks Subdivision, First Cove, St. Johns County, Florida. They have standing as Intervenors herein under the following facts as found. Petitioner claims rights to dredge and fill pursuant to an easement lying along the southerly boundary of Lot 10 in Secret Oaks Subdivision, which is a platted subdivision in St. Johns County, Florida. The easement runs up to and borders the St. Johns River, a tidal and navigable river in St. Johns County, Florida. Petitioner filed an application for dredge and fill permit with DER on September 18, 1992. The dock was proposed to be five feet wide and 620 feet long including a 20 foot by 10 foot terminal platform and six associated mooring pilings. On November 3, 1992, the Petitioner filed an alternative proposal with DER. That submission proposed construction of an "L" shaped walkway into the St. Johns River to connect the easement with an existing private dock to the north, which dock is owned by the Intervenors. The walkway is proposed to be five feet wide and may extend approximately 80 feet into the river, and then turn north and run parallel to the shoreline a distance of 41 feet to connect with the existing dock. Additionally, the existing dock would be reclassified as multi-family and four mooring pilings would be placed on the south side of the terminal platform. It is undisputed that a DER permit is necessary to construct either dock requested by Petitioner. While Petitioner sought to create an issue regarding a dock that once was located emanating from the easement and connecting with the present dock emanating from Lot 10 in a configuration similar to the Petitioner's proposed auxiliary dock configuration, the previous dock was never permitted and would be subject to DER rules and potential removal orders if it still existed, unless some "grandfathering" legislation or rule protected the structure. No such "grandfather" protections have been affirmatively demonstrated. Instead, it was orally asserted, without any corroborating circuit court orders, that after Petitioner prevailed over Intervenors in circuit court on various real property, riparian rights, and property damage issues due to Intervenors' removal of the old dock, the circuit court had conditioned further relief upon Petitioner obtaining the necessary DER permit. In its Notice of Permit Denial dated January 22, 1993, DER stated several reasons why reasonable assurances had not been given by Petitioners that water quality would not be violated and that the project was not contrary to the public interest, and further stated, by way of explaining how the permit might still be granted, that, "Compliance with Florida Administrative Code Rule 17- 312.080(1) and (2) can be achieved for either proposal by complying with the following requirements: Determine the legal status of the easement to establish ownership and control; Design a structure to provide a sufficient number of slips to accommodate all members in sufficient depth of water so that the grassbeds will not be disturbed by boating activity, or specifically limit only the area of the dock in water greater than three feet to be utilized for mooring boats or boating activity and record this action in a long-term and enforceable agreement with the Department; Obtain documentation from adjacent landowners that demonstrates they fully recognize and consent to the extent of activity which may occur in the water by either proposal (i.e., single dock or access walkway). Subsequent to the denial of Petitioner's application, Petitioner and DER representatives met and discussed DER's recommendations for reasonable assurances outlined in the Notice of Permit Denial. DER representatives have also orally recommended alternatives for hiring a dock-master or creating assigned boat slips, but DER has received no formal submissions of information from the Petitioner. All of Petitioner's and DER's proposals have not been reduced to writing. No long-term enforceable agreement as proposed by DER in the Notice of Permit Denial has been drafted. The project site is located on the eastern shore of the St. Johns River, three-quarters of a mile north of Cunningham Creek and one mile south of Julington Creek, at First Cove, a small residential community in the extreme northwest of St. Johns County, where the St. Johns River is approximately 2.5 miles wide. Located at the proposed project site are submerged grass beds (eel grass) that extend from approximately 100 feet to 450 feet into the St. Johns River in depths of two to three feet of water. The water at the proposed project site is classified as Class III Waters suitable for recreational use and fishing, but the area is not listed as an Outstanding Florida Water. The grass beds at the proposed project site are important for the conservation of fish and wildlife and the productivity of the St. Johns River. They provide detritus for support of the aquatic based food chain and they provide a unique, varied, and essential feeding and nursery habitat for aquatic organisms. They are valuable for the propagation of fish. Endangered West Indian manatees seasonally graze on the eel grass in this locale during their annual migrations. Absent the replacement of the auxiliary dock, lot owners' primary access to the larger dock is by swimming or boating from the upland of the pedestrian easement to the larger dock. This can mean sporadic interaction with the eel grass. However, DER's experts are not so much concerned with the individual and occasional usages of Petitioner's lot owners but with the type of activity common to human beings in congregate situations encouraged by multi- family docks. The proposed construction of the auxiliary dock does not intrude on the eel grass as the dock does not extend 100 feet from the upland. The grassbeds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with construction of either proposed configuration would have very minimal impact, but the continual increased turbidity of the water over the eel grass to be anticipated from multi-family use of either dock may detrimentally affect juvenile aquatic life and the Manatees' feeding ground. The auxiliary dock as proposed provides no facilities for docking watercraft. The permit application provides for a maximum of four facilities for docking watercraft, presumably by tying up to four end buoys. Petitioner intends or anticipates that only four boats would ever dock at one time under either configuration because of planned arrangements for them to tie up and due to an Easement and Homeowners Agreement and Declaration recorded in the public records of the county. Among other restrictions, the Agreement and Declaration limits dock use and forbids jet ski use.1 The permit application seeks a multi alternative dock construction. Petitioner intends to control the use of the dock(s) only by a "good neighbor policy" or "bringing the neighborhood conscience to bear." Such proposals are more aspirational than practical. Petitioner also cites its Secret Oaks Owners' Agreement, which only Petitioner (not DER) could enforce and which Petitioner would have to return to circuit court to enforce. Petitioner has proposed to DER that it will limit all boating and water activity to the westward fifty feet of the larger dock, prohibit all boating and water activity on the auxiliary dock, and place warning signs on the docks indicating the limits of permissible activity, but Petitioner has not demonstrated that it will provide any mechanism that would insure strict compliance with the limited use restrictions placed on the homeowners in Secret Oaks by their homeowners' restrictive covenant. Testimony was elicited on behalf of Petitioner that Petitioner has posted and will post warning signs and will agree to monitoring by DER but that employing a dock master is not contemplated by Petitioner, that creating individual assigned docking areas is not contemplated by Petitioner, and that there has been no attempt by Petitioner to draft a long term agreement with DER, enforceable by DER beyond the permit term. The purpose of the dock is to provide access to the St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all sixteen lots, their families, and social invitees. Although there are currently only three or four houses on the sixteen lots, there is the potential for sixteen families and their guests to simultaneously use any multi-family dock. Although all sixteen lot owners do not currently own or operate boats, that situation is subject to change at any time, whenever a boat owner buys a home or lot or whenever a lot owner buys a boat. All lots are subject to alienation by conveyance at any time. It is noted that this community is still developing and therefore anecdotal observations of boating inactivity among homeowners before the old dock was torn down are of little weight. No practical mechanism has been devised to limit homeowners' use of the dock(s) if a multi-family permit is issued. Also, no practical mechanism has been devised to exclude any part of the boating community at large from docking there. Thomas Wiley, a DER biologist, accepted without objection as an expert in the environmental impacts of dredge and fill activities, and Jeremy Tyler, Environmental Administrator for DER's Northeast District, also accepted without objection as an expert in environmental impacts of dredge and fill activities, each visited the site prior to formal hearing. They concurred that the application to construct the 620 foot long dock presented the potential for a number of boats to be moored or rafted at the pier at any one time, particularly weekends and holidays, and that multiple moorings might greatly exceed the capacity intended by Petitioner. Wiley and Tyler further testified, without refutation, that over-docking of boats could hinder or block the use of the waters landward of the terminal structures by adjoining property owners. Congregations of power boats at marinas and facilities designated for multi- family use also pose a threat to the endangered West Indian manatees. With regard to alternative two of the application to reconstruct the unpermitted "L" shaped walkway, such a configuration would extend 80 feet of the "mean high water line", then run 41 feet parallel to the shoreline of Lot 10 before attaching to the existing pier and that the parallel portion of the walkway lies immediately adjacent to, and inshore of, the extensive submerged grass beds. According to Wiley and Tyler, it can reasonably be expected that boaters would utilize this walkway as a convenient boat loading/off facility rather than walking to and from the terminal end of the existing 620 foot long dock. Water depths vary from two to three feet offshore of the proposed structure, and the operation of boats, jet-skis, and other watercraft would result in prop scouring of the silt/sand bottom and damage to grass bed areas, degrading water quality and adversely impacting important habitat areas. The DER experts concluded that the applicant had not provided reasonable assurances that the proposed structures would not cause hindrances to ingress and egress or the recreational use of State waters by adjacent property owners, including Intervenors at Lot 10, that grass habitat areas will not be adversely impacted or inshore water quality will not be degraded by boating and related activity. The potential for intensive use of either of the proposed docks could result in a large number of boats and/or water activity at and around the docks. Submerged grass beds occur in waters generally less than three feet deep in areas near the docks. Any boating activity landward of 450 feet from the shore could seriously damage the extensive grass beds that occur there. Boating activity is likely to occur in the areas of the grassbeds if a number of boats are using the dock(s) at the same time or if a boater desires to minimize the length of dock to be walked, in order to reach the uplands. That damage is expected to be from prop dredging and resuspension of bottom sediments onto adjacent grasses. Upon the evidence as a whole, the project is neutral as to the public health, safety, welfare, and property of others, except to the extent it impacts the Intervenors as set out above. The anticipated increase in water-based activities around the proposed dock(s) will cause shifting, erosion and souring that can be harmful to the adjacent grass beds. The anticipated increase in water based activities around the proposed dock will adversely affect marine productivity because the clarity of the water in the area of the grass beds will be decreased. The project may be either temporary or permanent but should be presumed permanent. The project does not affect any significant historical or archeological resources. The current condition of the eel grass beds in the area is lush and valuable as a fish and wildlife habitat. In the course of formal hearing, DER witnesses testified that absent any disturbance of the grassbeds, DER would have no complaints about either proposed project configuration. After considering and balancing the above criteria, it is found that Petitioner has not provided reasonable assurance that the proposed project in either form would not violate state water quality standards and that it would not be contrary to the public interest.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the permit application be denied without prejudice to future applications. RECOMMENDED this 28th day of July, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 28th day of July, 1993.
The Issue The issues to be determined are whether Respondent Roy Voss is entitled to an exemption from the requirement to obtain an Environmental Resource Permit (“ERP”) and entitled to “consent by rule” to use sovereignty submerged lands to install five mooring pilings next to his existing dock in Stuart, Florida.
Findings Of Fact The Parties Petitioner Pirtle is the owner of real property located at 4622 Southeast Boatyard Drive, Stuart, Florida. The property includes a dock that has been operating as a commercial marina for over 20 years. Respondent Voss is the recipient of the authorizations which are challenged by Petitioner. Voss owns the real property located at 4632 Southeast Boatyard Drive, Stuart, Florida, which is located immediately south of Petitioner’s property. Voss has a private dock. The Pirtle and Voss properties are riparian lots on Manatee Pocket, which connects to the St. Lucie River. Both lots have 50 feet of waterfront. The Department is the state agency with the power and duty to regulate construction activities in waters of the state pursuant to chapter 373, Florida Statutes. The Department also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on certain construction activities on state sovereignty submerged lands under chapter 253. The Pirtle and Voss Docks The Pirtle dock is 101 feet long and is T-shaped. The Pirtle marina operates under a 1991 sovereignty submerged land lease issued by the Board of Trustees. The lease authorizes up to ten boat slips within the leased area. Pirtle has five boat slips on the south side of his dock, which are configured so that boats are moored perpendicular to the dock, usually with their bows pointed toward the Voss dock. The Voss dock is 120 feet long and has an L-shaped waterward end. The “L” extends to the south, away from the Pirtle dock. The Voss dock was built sometime after the Pirtle dock. Voss has moored several boats at his dock, including a 26-foot Grady White with an 8.5-foot beam, a 38-foot boat with a 15-foot beam, and a 42-foot boat a 15-foot beam. The 38-foot and 42-foot boats have each been moored along the north side of the Voss dock (nearest the Pirtle dock) in the past. The parties did not dispute the location of an imaginary “riparian line” running parallel to and generally equidistant between the Pirtle and Voss docks. Before Voss installed the five pilings which are the subject of this case, boats maneuvering into or out of the slips that are on the south side of the Pirtle dock (“the south slips”) often crossed over the riparian line. The Mooring Pilings On August 29, 2012, Voss applied for the authorizations to install five mooring pilings spaced 20 feet apart on the north side of and parallel to his dock. Voss said he intended to use the pilings to moor a new 38-foot boat with a 15-foot beam. Voss could use three pilings to moor a 38-foot boat. The mooring pilings are also farther from Voss's dock than needed to moor a boat with a 15-foot beam. Voss originally proposed to install the pilings on the riparian line. The Department reviewed the proposal and asked Voss to set the pilings back about three feet farther away from the Pirtle dock. The Department issued the authorizations to Voss on October 25, 2012, and he installed the five mooring pilings where the Department directed him to, about three feet inside the riparian line and 20 feet from his dock. The closest distance between the T-shaped end of the Pirtle dock and the nearest mooring piling is about 8.5 feet. Therefore, only boats with a beam (maximum width) less than 8.5 feet can pass this point when attempting to maneuver into or out of the south slips. Pirtle found out about the Voss pilings early in December 2012. He filed his petition for hearing with the Department on December 20, 2012. The timeliness of the petition was not disputed. The authorizations were issued by the Department without first conducting a site inspection to determine what effect the mooring pilings would have on the ability of boats to maneuver into and out of Pirtle’s south slips. After Pirtle filed his petition, four Department employees went to the site in a 21.5-foot boat with a beam of about 7.8 feet. The pilot of the boat, Jason Storrs, had difficulty maneuvering into and out of Pirtle’s south slips and had to be assisted by the other Department employees who stood in the boat and pushed off from the pilings. Without their assistance, the boat would have bumped into the pilings. An inexperienced boater would have greater difficulty attempting to enter or leave one of the south slips. It would be more difficult to maneuver a boat in or out of one of the south slips if Voss had a boat moored along the pilings. In windy and choppy water conditions, a person attempting to maneuver a boat into one of the south slips would risk damage to the boat and possible injury. The proximity of the mooring pilings to the slips on the south side of the Pirtle dock creates an unsafe condition. It is the practice of the Department to treat boating conditions that create a potential for damage to boats and injury to boaters as a “navigational hazard.” Voss's mooring pilings create a navigational hazard. The difficult and unsafe situation created by the mooring pilings would be obvious to boat owners considering whether to lease one of the south slips at the Pirtle marina. The south slips would be unattractive to potential customers of the marina. Pirtle’s ability to operate the south side of his marina is substantially impaired by Voss's pilings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny the exemption and consent by rule. DONE AND ENTERED this 27th day of September, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2013.
