01-001541 Department Of Environmental Protection vs. John Lay And Janet Lay Status: Closed Recommended Order on Tuesday, August 14, 2001.

Summary: Department issued consents of use for exempt dock but later revoked them because of lack of riparian ownership. Department failed to prove lack of ownership to mean high water.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case Nos. 01-1541

) 01-1542

JOHN LAY and JANET LAY, )

)

Respondents. )

)

RECOMMENDED ORDER

On June 29, 2001, a final administrative hearing was held

in these cases before J. Lawrence Johnston, Administrative Law

Judge (ALJ), Division of Administrative Hearings (DOAH). The

hearing was conducted by televideo connecting hearing locations

in Tallahassee and Fort Myers, Florida.

APPEARANCES

For Petitioner : Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

For Respondents: John Lay and Janet Lay, pro se

3901 Southwest 27th Court

Cape Coral, Florida 33914

STATEMENT OF THE ISSUE

The issue is whether the Department of Environmental

Protection (DEP) should revoke two consents of use issued to the

Lays for construction of an exempt dock on Cayo Costa Island

near Pelican Bay in Lee County.

PRELIMINARY STATEMENT

On January 18, 2001, DEP gave notice of intent to revoke

the Lays' two consents of use. The next day, the Lays requested

administrative proceedings, which were referred to DOAH on

April 25, 2001. (The reason for the delay is not clear from the

record.) At DOAH, the two cases were consolidated and set for

final hearing on June 29, 2001. Later, final hearing was

converted to televideo.

At final hearing, DEP called Mark Miller, its environmental

manager in the submerged lands and environmental resources

program in DEP's South District office in Fort Myers, Florida.

DEP also had DEP Exhibits 1-16 admitted in evidence. The Lays

testified in their own behalf and had Respondents' Exhibits 1,

A, C, E, G, H, and I (the latter being photographs filed after

the hearing) admitted in evidence. DEP recalled Miller in

rebuttal.

DEP ordered a transcript of final hearing, and the parties

were given ten days from filing of the transcript in which to

file proposed recommended orders (PROs). The Transcript was

filed on July 9, 2001 . Only DEP filed a PRO, which has been

considered.

FINDINGS OF FACT

1. In spring 2000, after contracting to purchase Lots 16

and 17 in the Cayo Costa Subdivision on Cayo Costa Island in Lee

County, but before closing, the Lays contacted Peggy Grant, an

environmental specialist in DEP's South District office in Fort

Myers, Florida, to inquire whether it would be possible to

construct a single-family dock on and over sovereign submerged

land owned by the State of Florida in a lagoon west of Pelican

Bay. The Lays testified without contradiction that, in making

their inquiry, they showed Grant a boundary survey of the

property. The boundary survey showed that there was a strip of

road easement above the mean high water (MHW) line east of all

of Lots 16 and 17 except for the extreme southeast corner of the

lots. According to the Lays, again without direct

contradiction, Grant told them that it would be possible to

construct a dock into the lagoon because the lots were riparian

to the lagoon at least at the southeast corner. It was not

clear from the evidence whether Grant told the Lays that their

dock could emanate from parts of their lots other than the

southeast corner. The Lays subsequently closed on the property.

2. On July 12, 2000, the Lays filed a consolidated

application for exemption from the need to obtain an

environmental resource permit and for consent of use for a 208

square-foot single-family dock emanating from the easternmost

point of the boundary between Lots 16 and 17--a point from which

the dock would have to traverse approximately 10-15 feet of land

above MHW designated as roadway easement on the boundary survey.

3. The Lays testified that the boundary survey was part of

the application, but no boundary survey was contained in DEP's

files, and it is found that the application did not include the

boundary survey. It is found that the Lays, in testifying as

they did, confused the application submission with the inquiry

of Peggy Grant in spring 2000. There was no other information

in the application indicating a road easement or the location of

MHW.

4. After the Lays filed their application, DEP located the

site on an aerial produced by DEP's Geographic Information

System and conducted a site visit. During this phase, DEP and

the Lays focused on minimizing impact on mangroves bordering the

lagoon. Negotiations ensued, and the Lays eventually agreed to

submit additional information down-sizing their proposed dock to

58 square feet. The revised application was granted on

August 21, 2000, under DEP File No. 36-0172390-001.

5. The consent of use included General Consent Conditions.

Among other things, they stated: "The Letter of Consent

associated with these General Consent Conditions as well as

these conditions themselves are subject to modification after

five (5) years in order to reflect any applicable changes in

statutes, rule or policies of the Board [of Trustees of the

Internal Improvement Trust Fund] or its designated agent [DEP]."

There were no other conditions or statements regarding

modification or revocation of the consent of use.

6. After obtaining their exemption and consent of use, the

Lays realized they needed a larger dock. On September 11, 2000,

they applied for an exemption and consent of use for a 114

square-foot single-family dock. The Lays concede that the

boundary survey was not included in this application. This

application was granted on October 14, 2000, under DEP File No.

36-0172390-002. It included the same General Consent Conditions

as the first consent of use for the 58 square-foot dock and no

other conditions or statements regarding modification or

revocation of the consent of use.

7. The Lays next approached Lee County for a permit for

their dock. They showed Lee County their DEP exemption and

consent of use and their boundary survey. On November 13, 2000,

Lee County informed the Lays that the County permit could not be

issued due to County setback requirements from the road easement

shown on the boundary survey. The Lays then asked for

consideration of a variance from the setback requirements or

vacation of the road easement (which clearly could serve no

purpose or be of any use as a road).

8. At that point, the County referred the matter to the

County Attorney's office for a legal opinion. On December 29,

2000, a memorandum opinion was prepared to the effect that the

road easement, if implicitly offered for dedication by filing of

the Second Revised Plat of Cayo Costa Subdivision in the early

1910's, was never accepted by the County. The County surmised

that the road easement belonged to the State of Florida. For

that reason, no setback requirements from a road easement

applied, and the County permit could be issued.

9. The Lays were informed of the County's legal opinion in

early January 2001. They were told that the County informed DEP

of the legal opinion and the boundary survey and that the Lays

could expect to receive their County permit shortly.

10. When DEP was informed about the County's legal

opinion, DEP had a copy faxed to its Office of General Counsel

in Tallahassee on January 12, 2001, along with a copy of the

boundary survey. Upon review of the documentation, DEP came to

the conclusion that the Lays were not riparian owners at the

point of their proposed dock (at the southeast corner of Lot 16

and northeast corner of Lot 17) as a result of the road

easement. On January 18, 2001, DEP gave the Lays notice of

DEP's intent to revoke both consents of use (for the 58 and 114

square-foot docks).

11. DEP takes the position not only that it did not have

the benefit of the boundary survey in either application for

exemption and consent of use but also that it accepted at face

value the representations in the applications that the Lays were

riparian owners where they proposed to build their dock.

Actually, the Lays' applications did not contain explicit

representations to riparian ownership. But they did state that

the Lays owned "the property described," or had "legal authority

to allow access to the property," and did list only "Florida

Department of Parks and Recreation" as the only adjoining

property owner. In addition, they implicitly represented

entitlement to the exemptions and consent of use applied for.

CONCLUSIONS OF LAW

12. Since DEP seeks revocation of exemptions and consents

of use issued to the Lays, DEP has the burden to prove legal

grounds for revocation by preponderance of the evidence. See

Balino v. Dept. of Health & Rehabilitative Servs. , 348 So. 2d

349 (Fla. 1st DCA 1977).

13. DEP cites no statutory or even rule authority for

revocation of a consent of use issued under Rules Chapter 18-21.

(Rule citations are to the current Florida Administrative Code.

Statute citations are to sections of the 2000 codification of

Florida Statutes.) Contrast Walker v. Dept. of Business and

Prof. Reg. , 705 So. 2d 652 (Fla. 5th DCA 1998); Libby

Investigations v. Dept. of State, Div. of Licensing , 685 So. 2d

69 (Fla. 1st DCA 1986); Bill Salter Outdoor Advertising, Inc. v.

Dept. of Transp. , 492 So. 2d 408 (Fla. 1st DCA 1996); Farzad v.

Dept. of Prof. Reg. , 443 So. 2d 373 (Fla. 1st DCA 1983).

14. DEP's PRO implies that Rule 62-343.140(1) states

grounds for revocation of the Lays' consents of use. It

provides: "The Department shall revoke or suspend a permit when

necessary to protect the public health, safety or welfare." But

Rules Chapter 62-343 applies to environmental resource permits,

not to consents of use of sovereign submerged lands. Although

(in accordance with Sections 373.427 and 253.77(2) and Rules 62-

110.106 and 62-312.065) DEP combined the processing and review

of applications for both exemptions under Rules Chapter 62-343

and consents of use under Rules Chapter 18-21, this was done for

administrative convenience and efficiency. It did not make

exemption rules apply to consent of use applications (or vice

versa).

15. Assuming Rule 62-343.140(1) applied and established

the grounds for revocation of consents of use, DEP failed to

prove that revocation of the Lays' consents of use is "necessary

to protect the public health, safety or welfare."

16. In DEP v. Brotherton and Sportsman's Lodge Development

Corp. , DEP OGC Case No. 96-2581, DOAH Case No. 96-6070 1997 WL

594059, (Fla. Dept. Env. Prot. 1997), DEP addressed the

authority of an agency to modify final orders under somewhat

analogous circumstances. There, DEP's predecessor agency, the

Department of Environmental Regulation (DER), issued Brotherton

an exemption to repair a dock. Brotherton claimed ownership

based on a warranty deed to a condominium unit, together with an

undivided share in the common elements of the Condominium,

including "items of personal property . . . including the

private dock located thereon." In giving this warranty deed,

Brotherton's seller relied on a letter from the seller's

predecessor in title that "[y]our boat dock will remain

permanently assigned to your unit as a limited common element

reserved for use by your unit" in consideration of execution of

amended Condominium documents. In exempting the dock, DER

notified Brotherton that "the exemption determination may be

revoked 'if the basis for the exemption is determined to be

materially incorrect.'" Id. at page 2. When the effectiveness

of the conveyance of the dock to Brotherton was questioned, DEP

sent Brotherton a letter revoking Brotherton's exemption. But

in the Final Order, DEP rejected the letter based on the

doctrine of "administrative finality."

17. In the Brotherton Final Order, DEP stated at pages 4-

5:

In the landmark case of Peoples Gas

System, Inc. v. Mason, 187 So.2d 335 (Fla.

1966), the Florida Supreme Court recognized

that administrative agencies have inherent

authority to modify prior final orders still

under their control where it is demonstrated

that such modification "is necessary in the

public interest because of changed

circumstances." Id. at 339. Nevertheless,

in the Peoples Gas opinion, the court cited

a line of cases holding that this inherent

authority of an administrative agency to

modify a prior final order is a limited one

and concluded that:

The effect of these decisions is

that orders of administrative

agencies must eventually pass out

of the agency's control and become

final and no longer subject to

modification. This rule assures

that there will be a terminal

point at which the parties and the

public may rely on a decision of

such an agency as being final and

dispositive of the rights and

issues involved therein. This is,

of course, the same rule that

governs the finality of courts.

It is as essential with respect to

orders of administrative bodies as

with those of courts.

Id. at 339.

The court concluded in Peoples Gas that

an attempted modification by the Public

Service Commission of a final order four

years after it was entered was improper

based on the rule of finality of

administrative orders. This rule of

"administrative finality" was later

reaffirmed in Austin Tupler Trucking, Inc.

v. Hawkins, 377 So.2d 679 (Fla. 1979). In

the Austin Tupler case, the court held that

to allow the Public Service Commission to

revisit the issues decided in a final order

entered two years earlier would "contravene

the sound principles of finality enunciated

in People's Gas." [FN9] Id. at 681.

In this administrative proceeding, the

primary reason given for the Department's

attempted revocation of DER's 1993 Letter of

Exemption No. 092309393 was that the

information submitted by Brotherton in his

1993 application "has been determined to be

materially incorrect" in that:

In paragraph 14.A.1. of the

application you state that you are

the record owner or the record

easement holder of the property.

The Warranty Deed provided by you

does not indicate evidence of the

above. (DEP's Exhibit 4)

It is undisputed that Brotherton did

represent in his 1993 exemption application

form submitted to DER that he was "the

record owner ... of the property on which

the proposed project is to be undertaken, as

described in the attached legal document."

It is also undisputed that the attached

legal document (copy of an executed and

recorded warranty deed) purported to convey

to Brotherton fee simple title to

Condominium Unit No. 5, together with title

to the dock in question as personal

property. (DEP Exhibit 3, attachment "A").

The specific nature of the record ownership

interest received by Brotherton in the

upland property adjacent to the dock,

however, is unclear from the face of the

warranty deed attached to his application.

[FN10]

Even assuming that the warranty deed

attached to Brotherton's 1993 application

did not substantiate that he had sufficient

record ownership interest in the dock and

adjacent uplands to be entitled to the

requested regulatory exemption/consent of

use determination, these purported property

title defects were readily apparent on the

face of this deed. [FN11] Thus, the record

in this case does not demonstrate that the

Department's attempted revocation of DER's

Letter of Exemption No. 092309393 is based

on critical newly-discovered evidence not

included in Brotherton's 1993 exemption

application package.

There are no allegations or proof in

this proceeding that Brotherton willfully

falsified any representations in the

application forms and supporting documents

filed with DER in 1993. Neither are there

any allegations or proof that Brotherton

willfully concealed from DER relevant

information adverse to his exemption

application. If there were allegations and

proof in this case of such willful

misconduct on the part of Brotherton, this

may have been sufficient to support the

propriety of the Department's preliminary

action in 1996 seeking revocation of DER's

1993 regulatory exemption/consent of use

determination.

The Department's legal position

throughout these proceedings implies that

DER did not conduct an adequate review of

Brotherton's application in 1993 with

respect to his consent of use request. The

Department's contention suggests that DER

either overlooked or misconstrued the

provisions of Rule 18-21.004(3)(b), Florida

Administrative Code, in granting the consent

of use to Brotherton. I decline to rule on

the merits of such a proposition based on

the "administrative finality" doctrine

discussed above.

18. Comparing this case to the Brotherton case, DEP

contends essentially that the Lays' applications were

"materially incorrect." While the alleged defects in the

applications were not "readily apparent on the face of" the

applications, neither is there any evidence that the Lays

"willfully falsified any representations in the application

forms and supporting documents" or "willfully concealed from DEP

relevant information adverse to [their] exemption

application[s]." While the facts in this case are not identical

to those in Brotherton , it is concluded that the consents of use

in this case, like the exemption in Brotherton , should not be

revoked, based on the "administrative finality" doctrine

discussed above.

19. Beyond the doctrine of "administrative finality," it

is concluded that DEP did not prove that the representations in

the Lays' applications were false. Under Florida law, "in the

absence of a contrary showing," conveyance of Lots 16 and 17

included title to the centerline of the road east of the Lays'

property, subject to the easement dedicated to Lee County by

platting of the Cayo Costa Subdivision in the early 1910's; and,

since the County either did not accept or has abandoned the road

easement, the Lays own to the centerline of the road easement

free and clear of any easement. See Smith v. Horn , 70 Fla. 484,

489, 70 So. 435, 436 (1915); Calvert v. Morgan , 436 So. 2d 314

(Fla. 1st DCA 1983). DEP did not prove that MHW is to the west

of the centerline of the platted road easement at the point of

the Lays' proposed dock.

20. As suggested by Smith v. Horn , it was possible for the

conveyance of Lots 16 and 17 from the owner who platted the Cayo

Costa Subdivision to have excluded title to the road easement

(or to have retained a reversionary interest). If so, the Lays

would not own to the centerline of the road easement. See

Servando Bldg. Co. v. Zimmerman , 91 So. 2d 289, 291-292 (Fla.

1956); Peninsula Point, Inc. v. South Georgia Dairy Co -op, Inc. ,

251 So. 2d 690, 692-693 (Fla. 1st DCA 1971). But DEP did not

prove that the deeds to Lots 16 and 17 included such a

provision. For that reason, DEP did not prove that the Lays do

not own to the centerline of the platted road easement and did

not prove any misrepresentations in the Lays' applications for

consent of use.

21. Finally, in Bd. Of Trustees of Internal Improvement

Trust Fund v. Barnett , 533 So. 2d 1202, 1206-1207 (Fla. 3d DCA

1988), the court approved a lower court conclusion of law

rejecting a contention that "rights acquired from the State in

its proprietary capacity may be revoked at any time before the

holder changes his position in reliance on the right." DEP

properly has not taken such a position in this case. (Nor did

DEP prove that the Lays did not change position in reliance on

the consents of use.)

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that DEP enter a final order: (1) disapp roving

DEP's notice dated January 18, 2001, of intent to revoke the

Lays' two consents of use; and (2) dismissing this

administrative proceeding in which DEP seeks revocation of its

two consents of use.

DONE AND ENTERED this 14th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of August, 2001.

COPIES FURNISHED :

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

John and Janet Lay

3901 Southwest 27th Court

Cape Coral, Florida 33914

Kathy C. Carter, Agency Clerk

Office of General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

David B. Struhs, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.