13-000465 Diane Haskett And Bryan Fleming vs. Thomas Rosati And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, July 31, 2013.

Summary: Petition for hearing was timely to challenge the Letter of Consent because newspaper notice only mentioned the Noticed General Permit. Letter of Consent did not comply with the rules of the Board of Trustees because dock impairs navigation in the area.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANE HASKETT AND BRYAN FLEMING ,

Petitioners ,

vs. Case No. 13 - 0465

THOMAS ROSATI AND DEPARTMENT OF

ENVIRONMENTAL PROTECTION ,

Respondents .

/

RECOMME NDED ORDER

The f inal hearing in this case was held on June 11 - 12, 2013 ,

in Stuart, Florida, before Bram D. E. Canter, Administrative Law

Judge of the Division of Administrative Hearings ("DOAH").

AP P E A R A N C ES

F or Petitioners Diane Haskett and Bryan Fleming :

Howard K. Heims, Esquire

Virginia P. Sherlock, Esquire

Littman , Sherlock & Heims

618 East Ocean Boulevard, Suite 5

Stuart, Florida 34994

F or Respondent Thomas Rosati:

Nathan E. Nason, Esquire

Gregory Hyden, Esquire

Nason , Yeager , Gerson , White & Lioce , PA

1645 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33401

F or Respondent D e p a rtme n t of Environmental Protection:

Patricia E. Comer, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonw e a lth B o ulev a rd

T a ll a h a sse e , F lorida 32 3 9 9 - 3000

STATEMENT OF THE ISSUES

The issues to be determined in this case are wh e ther

Respondent Thomas Rosati is entitled to the Noticed Ge neral

Permit and the Letter of Con sent to use sovereignty submerged

Lands issued by the Department of Environmental Protection

("Department " ), which authorize the replacement of an existing

private dock with a new private dock in the St. Lucie River in

Martin County, Florida.

PRELIMINARY S TATEMENT

On September 19, 2012, the D e p a rtme n t issued a Noticed

General Permit and Letter of Consent to use sovereign submerged

lands ("Letter of Consent") to Thomas Rosati ("Rosati") for a dock

in the St. Lucie River. On January 23, 2012, Petitioners fil ed a

petition for hearing with the Department to challenge the

authorizations. The Department referred the petition to D O A H to

conduct an evidentiary hearing and issue a recommended order.

Rosati filed a motion to dismiss the petition as untimely,

which w as denied. Petitioners requested and were granted leave

to amend their petition twice.

At the final hearing, evidence was first taken on the issue

of whether the petition for hearing was timely. After hearing

the evidence, the Administrative Law Judge m ade a preliminary

ruling that the petition was timely and, therefore, the hearing

proceeded on the merits of the case.

Rosati presented the testimony of Thomas Rosati ,

Bruce Jerner , and Ed Weinberg. Rosati Exhibits 1A, 1G - 1I , 7B - 7C,

10M, and 10Q - 10U were admitted into evidence. The D e p a rtme n t

p r e s e nted t h e testimo n y of Jill King. Department Exhibits 8,

10 - 11, and 15 were admitted into evidence. P e tition e rs presented

the testimo n y o f Bryan Fleming, Diane Haskett, Thomas Rosati,

Bruce Jerner, Coral Veg a, and Leonard Nero. Petitioners'

Exhibits 2 - 3, 5, 6A, 7A - G, 8, 13, 25, 25B, 29, 31 , and 32 were

admitted into evidence.

Official recognition was taken of Florida Administrative

Code C hapters 18 - 20, 18 - 21, 62 - 113, 62 - 341, and 62 - 330, as well

as rules 62 - 1 10.106 and 62 - 343.090.

The three - volume Tr a nsc r ip t of the final h e a ri n g was filed

with DOAH. The parties submitted proposed recommended orders that

were considered by the Administrative Law Judge in preparing this

Recommended Order.

F IN D I N GS OF F A C T

The Parties

1. The Department is the state agency responsible for

regulating construction activities in waters of the State. The

Department also has responsibility to process and act on

applications for authorization to use sovereignty submerged lands

throug h a delegation of authority from the Board of Trustees of

the Internal Improvement Trust Fund ("Board of Trustees").

2. Rosati owns real property at 2391 S outhwest Riverside

Drive, Palm City, Florida. He is the applicant for the

authorizations at issue i n this case.

3. Rosati does not currently own a boat, but he wants to

obtain a boat that is large enough to use in the Atlantic Ocean.

4. Petitioner Bryan Fleming owns real property that borders

Danforth Creek. He also owns two nearby lots which entitle him

to undivided interests in a community dock on Danforth Creek.

5. Fleming owns several boats, including a 23 - foot Penn Yan

motorboat which he moored at docks on Danforth Creek.

6. Petitioner Diane Haskett owns property that borders

Danforth Creek. S he has been an avid boater most of her life,

but currently only co - owns, with Fleming, a 33 - foot sailboat

which they do not keep on Danforth Creek. She is a frequent

passenger on Fleming's Pen n Yan.

Notice of Agency Action

7. Rosati arranged for publica tion of a "Notice of General

Permit" in the October 30, 2012 , edition of The Stuart News . The

notice was in the exact form suggested by the Department in its

September 19, 2012 , letter to Rosati. The notice reads in

pertinent part:

STATE OF FLORIDA

DEPAR TMENT OF ENVIRONMENTAL PROTECTION

NOTICE OF GENERAL PERMIT

The Department of Environmental

Protection gives notice that the project to

remove an existing dock, and relocate and

construct a new dock with an access walkway

measuring 4 ft. by 392 ft. and en ding in an 8

ft. by 20 ft. terminal platform, including

two associated 12 ft. by 12 ft. boatlifts

(total 1,728 sq. ft. structure, total 2016

sq. ft. preempted area), has been determined

to qualify for a noticed general permit.

8. This is the form of publ ication regularly used by the

Department to notify the general public that the Department has

determined a proposed project qualifies for a Noticed General

Permit and a Letter of Consent.

9. The exact location of the Rosati property was also

included in t he newspaper notice.

10. Petitioners did not see the newspaper publication.

Fleming first became aware of the Rosati dock when he saw it

being constructed on January 13, 2013. He went to the

Department's offices and inquired about the dock.

11. Petitio ners filed their petition for hearing on

January 23, 2013, 1 0 days after receiving actual notice of the

Department's agency action on the Rosati dock.

Background Facts

12. The east side of Rosati's property borders the St.

Lucie River, which is designated a Class III water. The

submerged lands in the area of the Rosati property are sovereign

submerged lands of the State of Florida.

13. The river bottom in the area is sandy. There are no

corals, marine grass beds, or other significant aquatic

resources.

14. The south side of Rosati's property borders Danforth

Creek. Danforth Creek is a navigable waterbody with normal

depths of three feet or more.

15. Rosati's shoreline along the Creek is approximately 275

linear feet in length and his river shoreline i s approximately

125 feet.

16. Rosati has a dock on Danforth Creek. It is in a basin

that was created by excavating the private upland. The bottom of

the basin is not state - owned sovereign submerged lands.

17. Danforth Creek flows into the St. Lucie Riv er near the

southeast corner of the Rosati property. At its confluence with

the St. Lucie River, there is a shoal or sandbar that most likely

formed by the deposition of sediment carried out of the Creek.

18. Rosati had a small (32 feet long) dock on his shoreline

on the St. Lucie River. The Noticed General Permit and Letter of

Consent allow Rosati to remove this old dock, which he has

already done.

19. The shoal at the confluence of the Creek and River

restricts navigation in and out of Danforth Creek. Navigation in

and out of Danforth Creek is usually impossible during low tides,

except in a canoe, kayak, or other vessel requiring only a few

inches of water.

20. T he most reliable route between the Creek and the River

is a narrow channel only 2 to 3 f eet deep at higher tides . This

channel, which runs close to Rosati's eastern shoreline , shall be

referred to hereafter as the " deeper channel . "

21. For many years, Fleming regularly us ed the deeper

channel to take his 23 - foot Penn Yan motorboat from Danf orth

Creek into the St. Lucie River and back again. The Pen n Yan has

a draft of about 18 inches. Using the deeper channel, Fleming

could navigate in and out of Danforth Creek every day on the high

tides.

22. An unknown boater stuck a white PVC pipe into the river

bottom at the side of the deeper channel to indicate its

location.

The New Dock

23. Rosati's new dock was substantially completed at the

time of the final hearing in June 2013. The new dock is four

feet wide, 392 feet long, and terminates at a water depth of

minus four feet mean low water.

24. The other docks in the area are much shorter .

25. The St. Lucie River in this area is more than 2,000

feet wide. Therefore, the dock extends into the River less than

20 percent of the width of the Riv er.

26. The total dock square footage of Rosati's dock on

Danforth Creek and his new dock does not exceed 2,000 square

feet.

2 7 . The dock, terminal platform, and boat lifts "preempt"

2,016 square feet of sovereign submerged lands, meaning that the

dock e xcludes public use of this area of river bottom.

2 8 . Rosati's new dock crosses the deeper channel. It would

cross the deeper channel even if it were half as long. The

Letter of Consent authorizes Rosati to preempt from public use

that portion of the dee per channel that lies beneath the new

dock.

29 . Now, the only route that can be used by boaters wanting

to navigate in and out of Danforth Creek is a narrow channel

south of Rosati's new dock, between the dock and a spit of land

about 15 feet away. This route can become dry at low tide and is

only about a foot deep at high tides.

3 0 . This south route was used by Department staff during

high tide using a boat drawing 8 to 12 inches of water. At low

tide, they were unable to use this route to get from the St.

Lucie River into Danforth Creek, but were able to use the deeper

channel that now runs beneath the Rosati dock.

3 1 . Fleming would not be able to take his Pen n Yan through

the route on the south side of the Rosati dock except in rare

high water condit ions, such as may occur during or after

hurricanes or heavy storms. No member of the general public who

formerly used the deeper channel in a vessel drawing more than a

foot of water would be able to use the south route except in rare

high water condition s.

3 2 . In addition to the shallow character of the south

route, it is in a narrow space between the Rosati dock and the

sand spit. This route is only reasonably navigable by canoes,

kayaks, and similar small, shallow - draft vessels.

33 . The Department co ntends that the general public has not

been affected by the Rosati dock. However, a ll persons wishing

to navigate in and out of Danforth Creek, including Fleming,

other riparian landowners on Danforth Creek, and other members of

the boating public are pre vented from doing so in vessels which,

just prior to construction of the Rosati dock, they could have

used to navigate in and out of the Creek.

34 . Respondents further assert that the shoal may get worse

and the deeper channel may become more shallow . Th is was mere

speculation , with no timeframe offered. Furthermore, it was not

shown that the deeper channel would not remain the best means of

navigating in and out of Danforth Creek.

3 5 . Rosati's consultant did not make a site visit before

submitting the forms for the Noticed General Permit and no

Department employee made a site visit before the Department

issued its letter of September 19, 2012.

3 6 . In cluded in the materials submitted by Rosati's

consultant to the Department for the Noticed General Permi t is an

aerial photograph with a white arrow superimposed on the south

side of the proposed Rosati dock to indicate a channel or water

route from Danforth Creek into the St. Lucie River. The current

or historical elevation of the route indicated by the wh ite arrow

was not established in the record. It is now overgrown with

upland grass and is not an alternative water route for boaters

wanting to get in and out of Danforth Creek.

3 7 . Th e information submitted to the Department by Rosati's

consultant did n ot inform the Department that the best (deepest)

route in and out of Danforth Creek would be blocked by the Rosati

dock. The information implied that the proposed Rosati dock

would not imp air navigation in and out of Danforth Creek.

Although not shown to be intentional, t he information was

misleading because it failed to inform the Department of the true

site conditions and the impacts on navigation that would be

caused by the proposed dock.

CONCLUSION S OF LAW

3 8 . This is a de novo proceeding designed t o formulate

final agency action, not to review action taken preliminarily.

See Capeletti Bros. v. Dep't of Gen. Servs. , 432 So. 2d 1359,

1363 - 64 (Fla. 1st DCA 1983).

Standing

3 9 . In order to have standing to participate as a party, a

person must have sub stantial rights or interests that reasonably

could be affected by the agency action. See St. Johns

Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. , 54 So. 3d

1051, 1054, (Fla. 5th DCA 2011).

40 . Petitioners have a substantial interest in navigatin g

in the area of their riparian properties. That interest has been

affected by the Department's action and, therefore, they have

standing to initiate this proceeding.

Notice Regarding the General Permit

41 . The publication in The Stuart News constituted

constructive notice to Petitioners of the Department's action on

the Noticed General Permit. Petitioners waived their right to

petition for an administrative hearing to challenge the Noticed

General Permit when they failed to file their petition for

heari ng within 21 days of the publication. See Fla. Admin. Code

R. 62 - 110.106(3)(b).

Notice Regarding the Letter of Consent

4 2 . The newspaper publication did not name the Board of

Trustees or mention the Letter of Consent. A publication that

neither identifi es the authorizing agency or the action that was

taken is not adequate notice of agency action.

4 3 . If the newspaper notice had only failed to identify the

Board of Trustees as the agency for whom the Department was

acting in issuing the Letter of Consent , th at omission would not

have been fatal. However, failing to mention that Rosati had

been authorized by Letter of Consent to use sovereignty submerged

lands, an authorization governed by different statutes and rules,

is too fundamental an omission for t he newspaper notice to be

legally sufficient to bar injured persons from contesting the

authorization.

4 4 . Respondents argue that because the newspaper

publication mentioned "preempted area," a term that is used in

the context of the Board of Trustees' au thorization for private

use of sovereignty submerged lands, the publication provided

notice that such an authorization was also involved. However,

the use of a regulatory term is not an adequate substitute for

identifying the authorizing agency and its of ficial action.

4 5 . Respondents emphasize that because the published notice

described the dock in detail and provided its exact location,

Petitioners were not prejudiced by the omission of any reference

to the Board of Trustees or the Letter of Consent. H owever, if

there is no notice of agency action, the issue of prejudice is

immaterial.

4 6 . Petitioners claim that the newspaper publication was

also deficient for failing to conform to the requirements of the

"consolidated notice" described in rule 62 - 110. 106. However,

that rule only applies when a Letter of Consent is issued in

conjunction with an Environmental Resource Permit.

4 7 . Petitioners alternatively contend they were entitled to

written notice of the proposed dock because the dock required a

sove reign submerged lands lease from the Board of Trustees and

written notice of the issuance of such a lease must be provided

by mail to persons owning property within 500 feet. Showing that

a proposed project is ineligible for a Letter of Consent does not

t ransform the Letter of Consent that was issued into a submerged

lands lease. The Board of Trustees did not intend to issue a

submerged lands lease to Rosati and, therefore, Petitioners were

not entitled to written notice by mail of a submerged lands

lease .

4 8 . T here appears to be no published court opinion that

addresses a consolidated notice of agency actions and these

particular facts, but it is concluded that the October 30, 2012 ,

publication in The Stuart News was not notice of the Letter of

Consent a nd Rosati's authorization to use sovereignty submerged

lands. The public policies and purposes of chapter 120, Florida

Statutes, are better served by requiring such notices to identify

each official action taken, rather than imposing constructive

notice o f an agency action which was not mentioned in a newspaper

publication and terminat ing the rights of affected persons.

4 9 . Petitioners were not bound to file a petition for

hearing within 21 days of the newspaper publication to preserve

their right to chal lenge the Letter of Consent. Instead,

Petitioners were required to file a petition within a reasonable

time after receiving actual notice of the Letter of Consent. See

Wentworth v. Fla. Dep't of Envtl. Prot . , 771 So. 2d 1279

(Fla. 4th DCA 2000).

50 . Pet itioners filed their petition for hearing within 10

days of their actual notice that a Letter of Consent had been

issued to Rosati. The p etition was timely under these

circumstances .

Burden of Proof and Standard of Proof

51 . Rosati has the burden of pro of to demonstrate his

entitlement to the Letter of Consent. See Dep't of Transp. v.

J.W.C. Co., Inc. , 396 So. 2d 778, 789 (Fla. lst DCA 1981).

5 2 . The standard of proof is a preponderance of the

evidence. See § 120.57(1), Fla. Stat.

Compliance with Lett er of Consent Criteria

5 3 . Rule 18 - 21.005(1)(c)2. states that a Letter of Consent

can be issued for "one . . . dock . . . per parcel." Petitioners

claim that Rosati is not eligible for a Letter of Consent because

he already has a dock on Danforth Creek. The Department

interprets the rule as a limit to one dock per parcel on

sovereignty submerged lands. It does not treat Rosati's dock on

Danforth Creek in a private basin as disqualifying him from

obtaining a Letter of Consent for a new dock on sovereignt y

submerged lands . The Department's interpretation of the rules it

implements is entitled to some deference. See Bd . of Trs . of

Internal Impust Fund v. Levy , 656 So. 2d 1359 (Fla. 1st DCA

1995). The Department's interpretation of rule 18 - 21.005(1)(c )2.

is one reasonable interpretation of the rule and, therefore,

Rosati was not disqualified by the rule from receiving a Letter

of Consent for the new dock.

5 4 . Rule 18 - 21.005(1)(c)2. provides that a Letter of

Consent is available for private residential single - family dock

and existing and proposed structures that cumulatively preempt no

more than 10 square feet of sovereignty submerged land for each

foot of the applicant's "riparian shoreline on the affected

waterbody." Petitioners contend that, using o nly the length of

Rosati's shoreline on the St. Lucie River, about 125 feet, the

Rosati dock exceeds the rule criterion for a Letter of Consent.

The Department used the total of Rosati's shoreline along

Danforth Creek and the St. Lucie River, about 400 fe et, to

determine that the proposed dock met this limit and was eligible

for a L etter of C onsent.

5 5 . T he Department did not offer an explanation of the

policies that underlay its interpretation of rule 18 -

21.005(1)(c)2. or how including Rosati's shoreline on Danforth

Creek in its calculation is consistent with the wording "riparian

shoreline on the affected waterbody." The St. Lucie River is the

waterbody affected by the Rosati Dock, not Danforth Creek. The

interpretation of this rule by the Department w as not shown to be

reasonable and, therefore, does not justify use of a Letter of

Consent for the Rosati dock.

5 6 . The Department contends that, notwithstanding the

preempted area limit discussed above, rule 18 - 21.005(1)(c)2.

states that a Letter of Conse nt can be issued for a "minimum - size

private residential single - family dock or pier" as defined in

rule 18 - 21.003(39):

"Minimum - size dock or pier" means a dock or

pier that is the smallest size necessary to

provide reasonable access to the water for

naviga ting, fishing, or swimming based on

consideration of the immediate area's

physical and natural characteristics,

customary recreational and navigational

practices, and docks and piers previously

authorized under this chapter. The term

minimum - size dock or pier shall also include

a dock or pier constructed in conformance

with the exemption criteria in Section

403.813(1)(b), F.S. or in conformance with

the private residential single - family dock

criteria in subsection 18 - 20.004(5), F.A.C.

The Department conte nds the Rosati dock meets this definition

and, therefore, is eligible for a Letter of Consent.

5 7 . Rosati did not demonstrate that his dock is the

smallest size necessary to provide Rosati reasonable access to

the water for navigating, fishing, or swimmin g. Nor was the

Rosati dock constructed in conformance with the exemption

criteria in section 403.813(1)(b), because that section requires

that the dock have no more than 1,000 square feet of over - water

surface area. However, the dock meets the alternativ e definition

of minimum - size dock as one that is constructed in conformance

with the criteria in rule 18 - 20.004(5). Therefore, a L etter of

Consent is the appropriate form of authorization for the proposed

dock. That still leaves for determination the que stion whether

Rosati is entitled to a Letter of Consent.

5 8 . Rule 18 - 21.004 contains a list of management policies,

standards, and criteria for determining whether to issue a Letter

of Consent for a private, residential, single - family dock. Rule

18 - 21.00 4(1)(a) requires that activities on sovereignty submerged

lands not be contrary to the public interest. The Rosati dock,

by blocking public access to the deeper channel, permanently

eliminated navigation by the general boating public in and out of

Danfort h Creek by vessels that previously were able to do so.

That is a significant impairment to navigation in the area and is

contrary to the public interest. Therefore, the Rosati dock

violates rule 18 - 21.004(1)(a).

5 9 . The t itle to lands under navigable wa ters is held by

the S tate , by virtue of its sovereignty, in trust for all the

people. The p rivate use of sovereignty submerged lands may be

authorized by law, but only when such use is not contrary to the

public interest. See Fla . Const., Art. X, § 11 (2 013) . The most

fundamental public interest in sovereignty submerged lands is a

priori the character of the overlying waters as navigable .

60 . The Department argues that a person is not entitled to

use a preferred water route, ( citing Brooks v . Crum , DOAH Case

Nos. 06 - 2312, 2013, and 2014. (Recommended Order, December 22,

2006 ) ). However, i t was found in Brooks v. Crum that access to

an unnamed creek was not affected by the proposed dock, except

that boaters would have to take a different route to the mou th of

the creek. Th e case stands for the proposition that, if there

are two routes of equal depth to gain access to a creek, boaters

have no right to insist on the ir preferred route and prevent a

riparian landowner from improving his dock . In contrast, t he

riparian landowners on Danforth Creek and other boaters do not

have two routes of equal depth to access Danforth Creek from the

St. Lucie River. If they had an alternative route of equal

depth, they could not insist on using the channel that runs

benea th the Rosati dock.

6 1 . Respondents assert that Petitioners are not prohibited

from navigating in canoes and kayaks and, therefore, their right

to navigate ha s not been significantly impaired. However, a

material reduction in the public's ability to navi gate on a

navigable waterbody is a significant impairment. The immediate

and permanent blocking of the deeper channel so that many vessel

types that could have navigated in and out of Danforth Creek can

no longer do so is a material reduction in the publi c' s ability

to navigate .

6 2 . Petitioners contend that the length of the dock causes

it to be a navigation hazard to boaters in the St. Lucie River.

However, because the dock does not extend more than 20 percent of

the width of the waterbody as specified by Board of Trustees '

rules, it is presumed to not create a navigation hazard.

Petitioners' evidence was insufficient to rebut the presumption.

6 3 . Petitioners contend that the Rosati dock interferes

with their riparian rights. Riparian rights are defin ed in

section 253.141(1) as "rights of ingress, egress, boating,

bathing and fishing and such others as may be or have been

defined by law." In B oard of Tr ustees of the Internal

Improvement Trust Fund v. Sand Key Assocs., Ltd. , 512 So. 2d 934,

936 (Fla. 198 7 ), the court identified the following r iparian and

littoral property rights: (1) the right of access to the w ater,

including the right to have the property's contact with the water

remain intact; (2) the right to use the water for navigational

purposes; (3) the right to an unobstructed view of the water; and

(4) the right to receive accretions and relictions to t he

property." Id. , 936 .

64 . Other case s have recognized a riparian landowner's right

to "wharf out" or build a dock at the shoreline. See F erry Pass

Inspector s ' and Shippers' Ass'n v. White's River Inspectors' &

Shippers' Ass'n , 57 Fla. 399, 48 So. 643 (Fla. 1909). A riparian

landowner's rig ht of navigation is , likewise, associated with the

waterbody adjacent to his shoreline.

Riparian owners have no exclusive rights to

navigation in or commerce upon a navigable

stream opposite the riparian holdings, and

have no right to use the water or land under

it as to obstruct or unreasonably impede

lawful navigation and commerce by others, as

so as to unlawfully burden or monopolize

navigation or commerce. The exclusive rights

of a riparian owner are such as are necessary

for the use and enjoyment of h is abutting

property and the business lawfully conducted

thereon; and these rights may not be so

exercised as to injure others in their lawful

rights.

Id. , 402.

6 5 . Petitioners did not prove that their traditional,

common law riparian rights are affected by the Rosati dock.

6 6 . Rosati also asserts his rights as a riparian landowner ,

but he did not demonstrate that his riparian rights cannot be

e xercised without interfering with the navigation rights of the

general public. See F erry Pass Inspector s ' and Shippers' Ass'n ,

at 57 Fla. 399 , 48 So. 48 (Fla. 1909)(" Subject to the superior

rights of the public as to navigation . . . a riparian owner may

erect upon the bed and shores adjacent to his riparian holdings,

bath houses, wharves or other structures . . . but these

privileges are subject to the rights of the public to be enforced

by proper public authority or by individuals who are specially

and unlawfully injured.").

6 7 . The Letter of Con s ent does not contain terms or

conditions that would provide altern ative access to Danforth

Creek of equal depth so that public navigation was not

significantly impaired. Therefore the Letter of Con s ent violates

rule 18 - 21.004(1)(b) , which requires terms and conditions that

protect sovereignty submerged lands.

6 8 . The R osati dock was not constructed in a manner which

avoids or minimizes adverse impacts to sovereignty submerged

lands and, therefore, the dock violates rule 18 - 21.004(7).

Rosati did not show that it was impossible to provide the general

public and the ripar ian landowners on Danforth Creek a route of

equal depth in and out of Danforth Creek.

69 . Nothing stated herein is intended to indicate that the

Rosati dock must be torn down. It is only concluded that he is

not entitled to a Letter of Consent for his pr oject .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a Final Order

determining that Thomas Rosati qualifies for the Noticed General

Permit, and denying the Letter of Consent to use sovereignty

submerged lands.

DONE AND ENTERED this 31st day of July , 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 31st day of July , 2013 .

COPIES FURNISHED:

Patricia E . Comer, Esq uire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Nathan E. Nason, Esquire

Gregory Hyden, Esquire

Nason, Yeager, Gerson,

White and Lioce, P.A.

Suite 1200

1645 Palm Beach Lakes Boulev ard

West Palm Beach, Florida 33401

Howard K. Heims, Esquire

Virginia P. Sherlock, Esquire

Littman, Sherlock and Heims, P.A.

Post Office Box 1197

Stuart, Florida 34995 - 1197

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

De partment of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

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 Recomme nded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.