08-000510 Old Pelican Bay Iii Association, Inc. vs. Terry Carlson And Department Of Environmental Protection Status: Closed Recommended Order on Friday, June 27, 2008.

Summary: Applicant`s dock qualified for exemption from DEP permit requirements; the dock did not create navigational hazard, as claimed by Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLD PELICAN BAY III )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 08-0510

)

TERRY CARLSON and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on June 12, 2008,

in Fort Myers, Florida.

APPEARANCES

For Petitioner: Joseph Kowalski, Qualified Representative

Old Pelican Bay III Association, Inc.

12228 Siesta Drive

Fort Myers, Florida 33931-2328

For Respondent: Frank E. Matthews, Esquire

(Carlson) Amelia A. Savage, Esquire

Hopping Green & Sams, P.A.

Post Office Drawer 6526

Tallahassee, Florida 32314-6526

For Respondent: Ronald W. Hoenstine, III, Esquire

(Department) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

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.

BACKGROUND

This matter began on May 8, 2007, when Respondent,

Department of Environmental Protection (Department), issued a

letter advising Mr. Carlson that based upon information supplied

in his application to modify a single-family dock in a man-

altered waterbody in Lee County, Florida, the project was

determined to be exempt from Department permit requirements.

The letter also constituted "authorization to use state owned

submerged land for the construction of [his] project."

On December 26, 2007, Petitioner, Old Pelican Bay III

Association, Inc. (Association), apparently an association of

property owners who reside near Mr. Carlson's property, through

its President, Stephen Miller, filed a letter (Petition)

requesting a hearing to contest the Department's preliminary

determination on several grounds, including allegations that the

dock and pilings would create a navigational hazard and that the

project had changed from what was originally submitted to the

Department and was no longer exempt. (The Petition did not

provide any information about the organization or its members

except that it included a "group of our residents" who

presumably resided near the site of the proposed activity.)

The matter was forwarded by the Department to the Division

of Administrative Hearings (DOAH) on January 28, 2008, with a

request that an administrative law judge be assigned to conduct

a hearing.

By Notice of Hearing dated February 6, 2008, the matter was

scheduled for final hearing on April 7 and 8, 2008, in Fort

Myers, Florida. On March 27, 2008, the parties filed a Joint

Motion for Continuance. The matter was then rescheduled to

May 22 and 23, 2008, at the same location. On May 16, 2008,

Petitioner filed a Motion for Continuance on the ground its

qualified representative had recently undergone surgery and

could not attend the hearing. By Order dated May 19, 2008, the

matter was rescheduled to June 12, 2008, at the same location. 1

A Joint Prehearing Stipulation was filed by the parties on

May 23, 2008, and a status conference was conducted by telephone

on June 10, 2008.

On January 8, 2008, Mr. Carlson filed with the Department a

Motion to Dismiss (Motion) the Petition on the ground it was

untimely filed. The Motion was forwarded to DOAH on January 28,

2008, and Petitioner was given until February 7, 2008, in which

to file a response. A response was filed on February 4, 2008.

The Motion was denied by Order dated February 6, 2008, on the

ground the matters asserted in support of the Motion were not of

record and were beyond the four corners of the Petition. After

discovery was conducted, and relying upon the same ground, a

Second Motion to Dismiss was filed by Mr. Carlson on May 22,

2008. An Answer was filed by Petitioner on May 23, 2008, and a

Response was filed by the Department on May 28, 2008. The

Second Motion to Dismiss was denied by Order dated June 2, 2008.

On May 16, 2008, the Department issued a Revised Letter to

Reflect Modified Dock and Sovereignty Submerged Lands

Determination. The second letter was issued because of a

determination by the Department that "the project, as described,

does not involve the use of sovereignty submerged lands" and

therefore proprietary authorization was no longer required.

At the final hearing, Petitioner was represented by its

qualified representative, Joseph Kowalski, a member of the

Association, who presented the testimony of Captain Marcus

Carson, a licensed pilot and accepted as an expert. 2 Also, it

offered Petitioner's Exhibits 1 and 2. A ruling was reserved on

Exhibit 1, while an objection to Exhibit 2 (a DVD described as

being a composite of three videos of boat trips on the canal)

was sustained on the ground the exhibit was not timely disclosed

nor listed on the parties' Joint Prehearing Stipulation. 3 See

Order dated May 19, 2008. Exhibit 1, a copy of an email

communication between Petitioner and the Department dated

March 27, 2008, is hereby received. The Department presented

the testimony of Mark R. Miller, Submerged Lands and

Environmental Resource Program Manager in the South District

Office and accepted as an expert, and offered Department

Exhibits 1 and 2, which were received in evidence. Respondent

Terry Carlson presented the testimony of Timothy L. Mann, a

professional surveyor and accepted as an expert; V. Allen

Hoffacker, an environmental consultant and accepted as an

expert; Captain Joe Verdino, a licensed boat pilot and accepted

as an expert; and Captain Michael W. Bailey, a licensed boat

pilot and accepted as an expert. Also, he offered Carlson's

Exhibits 1-5, 7A, 7B, 8, 9, 10A, and 10B, which were received in

evidence. Finally, the Department and Mr. Carlson jointly

offered Respondents' Joint Exhibit 2, which was received in

evidence.

There is no transcript of the hearing. Proposed Findings

of Fact and Conclusions of Law were filed by Petitioner on

June 20, 2008, and by the Department and Mr. Carlson on June 23,

2008, and they have been considered in the preparation of this

Recommended Order. On June 23, 2008, Petitioner refiled its

proposed order, together with documents marked as (Petitioner's)

Exhibits 2, 3, 5, and 6, which were referred to at hearing but

never marked for identification or moved into evidence, and a

copy of the DVD previously marked at hearing as Petitioner's

Exhibit 2, which was accepted on a proffer basis only. 4

FINDINGS OF FACT

Based on the evidence presented by the parties, the

following findings of fact are made:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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."

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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.

20. 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.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

22. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal. See ,

e.g. , Balino v. Department of Health & Rehabilitative Servs. ,

348 So. 2d 349, 350 (Fla. 1st DCA 1977). Therefore, Mr. Carlson

has the burden of proving by a preponderance of the evidence

that the proposed activity is exempt from Department permitting

requirements.

23. Florida Administrative Code Rule 40E-4.051(3)(b)

provides in relevant part that no permit shall be required for

the following type of docking facility:

(b) The installation or repair of private

docks . . . of which docks have 1000 square

feet or less of surface area over wetlands or

other surface waters, or 500 square feet or

less of surface area over wetlands or other

surface waters for docks which are located in

Outstanding Florida Waters. . . . To qualify

for this exemption, any such structure:

1. Shall be used for recreational, non-

commercial activities;

2. Shall be constructed or held in place by

pilings, including floating docks, so as not

to involve filling or dredging other than

that necessary to install the pilings;

3. Shall not substantially impede the flow

of water or create a navigational hazard; and

4. Shall be the sole dock constructed

pursuant to this exemption as measured along

shoreline for a minimum distance of 65 feet,

unless the parcel of land or individual lot

as platted is less than 65 feet in length

along the shoreline, in which case there may

be one exempt dock allowed per parcel or lot

. . . .

See also § 403.813(2)(b), Fla. Stat.

24. By a preponderance of the evidence, Mr. Carlson has

established that the project will not create a navigational

hazard within the meaning of the statute and rule. 9 The

remaining criteria are not in dispute, and they are deemed to

have been satisfied. The evidence further supports a conclusion

that there has not been a material change in site conditions so

as to warrant the automatic expiration of the exemption. This

being so, the Department's determination that the project is

exempt from permitting requirements should be sustained.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of June, 2008.

ENDNOTES

1/ By Order dated May 19, 2008, the matter was continued with

the specific condition that no further discovery would be

conducted, and absent an agreement by all parties, no party

could supplement its witness and exhibit lists set forth in the

parties' Joint Prehearing Stipulation. By that time, the

parties had conferred and agreed upon their respective witnesses

and exhibits. The actual stipulation was later filed on May 23,

2008. The DVD was not on the exhibit list.

2/ By agreement of the parties, Mr. Stephen Miller, also a non-

attorney and President of the Association, was allowed to

question two witnesses at the hearing.

3/ According to the Association's proposed recommended order,

the video reflects the "actual conditions at the site" and the

difficulties encountered when a 52-foot vessel was navigated

through the passage near Mr. Carlson's dock. At hearing, it was

described as being a composite of three videos lasting a total

of six minutes, two of which were taken by Mr. Kowalski and one

by a Mr. McGuigan, who is not a party to this proceeding.

4/ Because Mr. Kowalski did not have extra copies of the video

(marked as Petitioner's Exhibit 2 for proffer purposes) at the

hearing, he was given five days in which to submit a copy to the

undersigned and all parties. A copy was filed on June 23, 2008.

On June 24, 2008, Mr. Carlson filed a Motion to Object to Video

Evidence on the grounds (a) the video provided is a single video

lasting one minute twenty-six seconds and is not a composite of

three videos lasting six minutes as described at hearing; (b)

Petitioner has not indicated who filmed the proffered video or

provided the name of the person speaking on the video; and (c)

the video was not listed on the Pre-Hearing Stipulation or

otherwise timely disclosed as an exhibit prior to hearing. A

Response to Motion on Video Evidence was filed by Petitioner on

April 25, 2008, essentially arguing that the exhibit should not

be excluded for technical reasons and if it not admitted, it

will be provided to members of the Legislature, Congress, and

major news media.

5/ In his deposition taken on May 15, 2008, which was attached

to Mr. Carlson's Second Motion to Dismiss but was not made a

part of this record at the hearing, Mr. Kowalski indicated that

in order to join the Association, one needed "to own property in

the association," "pay your quarterly dues," and "register"

one's boat with the Association.

6/ All references to Florida Statutes are to the 2007 version.

7/ The Department's letter stated in part that "[t]he

Department will not publish notice of this determination.

Publication of this notice by you is optional and is not

required for you to proceed. However, in the event that an

administrative hearing is held and the Department's

determination is reversed, proceeding with the proposed activity

before the time period for requesting an administrative hearing

has expired would mean that the activity was conducted without

the required permit."

8/ In its proposed recommended order, the Association cites the

case of Rosenblum v. Zimmet and Department of Environmental

Protection , DOAH Case No. 06-2859, 2007 Fla. Div. Adm. Hear.

LEXIS 577 (DOAH Oct. 23, 2007; DEP Dec. 11, 2007), for the

proposition that evidence of a local government regulation has

been used "in referencing a navigational hazard." A review of

the Recommended and Final Orders in that case, however, reveals

no such language. Instead, the exemption was denied because the

location of the dock would not provide "a reasonable amount of

clearance for navigating," and not because of a local government

regulation. Id. at *7.

9/ Even if the dock created a slight inconvenience for other

mariners, including Mr. Kowalski, that would not constitute the

type of navigational hazard contemplated by the rule. See ,

e.g. , Scully v. Patterson and Department of Environmental

Protection , DOAH Case No. 05-0058 (DOAH April 14, 2005, DEP May

23, 2005), 2005 Fla. Div. Adm. Hear. LEXIS 948 at *12, and cases

cited therein.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Joseph Kowalski

Old Pelican Bay III Association, Inc.

12228 Siesta Drive

Fort Myers Beach, Florida 33931-2328

Frank E. Matthews, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314-6526

Ronald W. Hoenstine, III, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Gregory M. Munson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.