18-001174
Great American Life Insurance Company, Inc. vs.
The Buccaneer Commercial Unit A, Care Of Benjamin Sharfi, Trustee Of The Benjamin Sharfi Trust 2002, The State Of Florida Department Of Environmental Protection, And The Board Of Trustees Of The Internal Improvement Trust Fund
Status: Closed
Recommended Order on Thursday, January 10, 2019.
Recommended Order on Thursday, January 10, 2019.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8GREAT AMERICAN LIFE INSURANCE
12COMPANY, INC.,
14Petitioner,
15vs. Case No. 18 - 1174
21THE BUCCANEER COMMERCIAL UNIT A,
26CARE OF BENJAMIN SHARFI, TRUSTEE
31OF THE BENJAMIN SHARFI TRUST
362002; THE BUCCANEER CONDOMINIUM
40ASSOCIATION OF PALM BEACH
44SHORES, INC.; THE STATE OF
49FLORIDA DEPARTMENT OF
52ENVIRONMENTAL PROTECTION,
54ET AL.,
56Respondents.
57_______________________________/
58RECOMMENDED ORDER
60Pursuant to notice, a final hearin g was held in this case
72on August 14 and 15, 2018 , in West Palm Beach , Florida , before
84E. Gary Early, a designated A dministrative L aw J udge of the
97Division of Administrative Hearings .
102APPEARANCES
103For Petitioner Great American Life Insurance Company:
110Andrew J. Baumann, Esquire
114Lewis, Longman and Walker, P.A.
119Suite 1500
121515 North Flagler Drive
125West Palm Beach, Florida 33401
130a nd
132John W. Wallace, Esquire
136Lewis, Longman and Walker, P.A.
141Suite 150
143245 Riverside Avenue
146Jacksonville, Florida 32202
149For Respondents t he Buccaneer Commercial Unit A , C are o f
161Benjamin Sharfi, Trustee of the Benjamin Sharfi Trust 2002 ,
170and t he Buccaneer Condominium Association of Palm Beach
179Shores, Inc.:
181Joshua D. Miron, Esquire
185Shutts & Bowen, LLP
189Suite 2100
191200 East Broward Boulevard
195Fort Lauderdale, Florida 33301
199and
200Christopher Hamilton, Esquire
203Deborah Getzoff, Esquire
206Shutts & Bowen , LLP
2104301 West Boy Scout Boulevard
215Tampa, Florida 33607
218For Respondents State of Florida, Department of
225Environmental Protection , and the Board of Trustees of the
234Internal Improvement Trust Fund :
239Kirk Sanders White, Esquire
243Department of Environmental Protection
247Mail St ation 35
2513900 Commonwealth Boulevard
254Tallahassee, Florida 32399 - 3000
259STATEMENT OF THE ISSUE
263The issue to be determined is whether Consolidated
271Environmental Resource Permit No. 50 - 0 1 47856 - 00 3 - EI and
286State - owned Submerged Lands Lease No . 500 022746 for a commercial
299addition to the multi - family residential dock , known as the
310Buccaneer C ondominium Marina , should be issued as proposed in
320the December 27, 2017 , proposed agency action issued by the
330Department of Environmental Protection (ÐDEPÑ) in its own
338capacity and in its capacity as staff to the Board of Trustees
350of the Internal Improvement Trust Fund (ÐBTIITFÑ) . Unless
359individually identified, the DEP and the BTIITF will be
368collectively referred to as Ð the DEP . Ñ
377PRELIMINARY STATEMENT
379On December 27, 20 1 7 , the DEP issued a Consolidated
390Environmental Resource Permit (ÐERPÑ) and Recommended Intent to
398Grant State - owned Submerged Lands Authorization
405(ÐSSL AuthorizationÑ) , Permit No. 50 - 0 1 47856 - 00 3 - EI
419(collectively the ÐPermitÑ) , to the Applicant, the Buccaneer
427Commercial Unit A (ÐApplicantÑ or Ð Commercial Unit A Ñ ). The
439Permit authorizes the installation of a 2,370 square foot ,
44914 - slip dock addition (the ÐCommercial Unit A DockÑ) to an
461existing 2,643 square foot , 18 - slip multi - family residential
473docking facility (the ÐBuccaneer Condo minium DockÑ) that serves
482the Buccaneer Condominium Association of Palm Beach Shores, Inc.
491(the ÐBuccaneer Condominium). The resulting mixed
497commercial/residential docking facility will be a t otal of
5065,013 square f eet with 32 wetslips.
514On February 9, 2018 , Petitioner , Great American Life
522Insurance Company, Inc. ( Ð Petitioner Ñ or ÐGreat AmericanÑ) ,
532f iled a Petition for Administrative Hearing (ÐPetitionÑ) .
541Petitioner own s or has a property interest in a residential
552parcel at 144 Lake Drive, Palm Beach Shores, Florida
561(the Ð 144 Property Ñ ) , located north of and adjacent to property
574owned by the Buccaneer Condominium and the Applicant .
583PetitionerÓs property includes a single - family dock adjacent to
593the seawall (the Ð 144 DockÑ) .
600On March 5, 2018 , the Petition was referred to the Division
611of Administrative Hearings . On March 7, 2018, Petitioner filed
621an Amended Petition for Administrative Hearing which was
629accepted pursuant to Florida Administrative Code Rule 28 -
638106.202. On March 8, 2018, this case was assigned to the
649undersigned.
650The final hearing was scheduled for August 13 through 16,
6602018 . In the period leading up to the final hearing, a number
673of motions were filed, including a motion to add t he Buccaneer
685Condominium as an indispensable party . That motion was granted.
695Unless individually identified, Commercial Unit A and the
703Buccaneer Condo minium will be collectively referred to as Ð the
714Applicants Ñ or Ð Respondents .Ñ D isposition of the other motions
726is reflected o n the docket.
732On August 13, 2018 , the parties filed their Joint Pre -
743hearing Stipulation (ÐJPSÑ) . The J PS contained eight
752stipulations of fact and law , each of which is adopted and
763incorporated herein . The JPS also identified disputed issues of
773fact and law remaining for disposition as follows:
781I ssues of fact which remain to be litigated
7901. The impact upon navigation with regard
797to vessels navigating to and from 144 Lake
805Drive, Palm Beach Shores, Florida, which
811will be caused by the Expanded Buccaneer
818Dock.
8192. The impact upon PetitionerÓs riparian
825rights which will be caused by the Expanded
833Buccaneer Dock.
8353. The impac t upon navigation with regard
843to vessels navigating the Lake Worth
849Navigation Channel in the vicinity of the
856Expanded Buccaneer Dock.
8594. The impact that the project will have
867upon health, public safety, and welfare.
8735. The public benefit, or lack there of, of
882the Project.
8846. The ability of the Applicants to comply
892with the terms of the Permit and Lease.
900Issues of law which remain for determination
9071. Whether the Applicant carries the burden
914of ultimate persuasion with regard to
920matters related to the modification of its
927existing Submerged Lands Lease.
9312. Whether the Applicant has provided FDEP
938and the Board with reasonable assurances
944that the Expanded Buccaneer Dock will not
951adversely affect navigation within the Lake
957Worth Navigation Channel.
9603 . Whether the Applicant has provided FDEP
968and the Board with reasonable assurances
974that the Expanded Buccaneer Dock will not
981adversely affect navigation to and from the
988existing si ngle family dock located at
995144 Lake Drive, Palm Beach Shores, Florida.
10024. Whether the Applicant has provided FDEP
1009and the Board with reasonable assurances
1015that the Expanded Buccaneer Dock will not
1022create a navigational hazard for vessels
1028navigating within the Lake Worth Navigation
1034Channel.
10355. Whether the Applicant has provid ed FDEP
1043and the Board with reasonable assurances
1049that the Expanded Buccaneer Dock will not
1056create a navigational hazard for vessels
1062navigating to and from the existing single
1069family dock located at 144 L ake Drive,
1077Palm Beach Shores, Florida.
10816. Whether t he Applicant has provided FDEP
1089and the Board with reasonable assurances
1095that the Expanded Buccaneer Dock will not
1102unreasonably infringe upon PetitionerÓs
1106riparian rights.
11087. Whether the Applicant has provided FDEP
1115and the Board with reasonable assurances
1121that the Expanded Buccaneer Dock will not
1128threaten health, public safety or welfare,
1134or will not otherwise be in contravention of
1142public interest.
11448. Whether the Project should have been
1151submitted to the Cabinet and Board.
11579. Whether the Buccaneer Res pondents have
1164demonstrated a net public benefit to justify
1171the expansion of the Buccaneer Dock.
117710. Whether FDEP may issue a modification
1184to the existing, grandfathered Buccaneer
1189Dock which authorizes both a commercial and
1196multi - family residential use on the same
1204dock.
120511. Whether the proposed lease modification
1211includes an improperly expanded
1215grandfathered, multi - family docking
1220facility.
122112. Whether the existing Buccaneer Dock can
1228be expanded in excess of its grandfathered
1235footprint.
123613. Whether FDEP can issue a modification
1243to the existing, grandfathered Buccaneer
1248Dock which authorizes both a commercial and
1255multi - family residential use of the same
1263dock.
126414. Whether the Applicants possess
1269sufficient upland title interest/riparian
1273rights to authorize the extension of the
1280Buccaneer Dock.
128215. Whether the Project should have been
1289submitted to the Cabinet and Board.
1295[repeated from Issue of Law ¶ 8].
130216. Whether DEP should have considered the
1309ApplicantsÓ compliance history in issuing
1314the Permi t and Lease Modification.
132017. Whether Great American has standing
1326pursuant to Rule 28 - 106.201 F.A.C, and
1334Fla. Stat. §§ 120.569 and 120.57 to assert
1342claims relative to past agency action
1348relative to the BuccaneerÓs Lease.
135318. Whether the Court has subje ct matter
1361jurisdiction to determine PetitionerÓs
1365allegations relative to compliance and
1370enforcement.
1371Upon inquiry at the final hearing, Petitioner agreed that
1380the issue s in this case can be boiled down to whether the
1393construction of the Commercial Unit A Dock will affect
1402navigation under the ERP and SSL Lease (ÐSSLLÑ) criteria , and
1412whether the Buccaneer Condo minium DockÓs grandfathered
1419exceedance of the 40:1 ratio of shoreline to square feet of
1430multi - family residential dock affects the permitting of the
1440Commercial Unit A Dock . See Tr. Vol. 1, 39:18 through 40:2.
1452Petitioner also raised the related issue of whether the
1461Commercial Unit A Dock could be ÐappendedÑ to a grandfathered,
1471exempt private multi - family residential dock, and whether
1480Commercial Unit A has a sufficient upland interest to support
1490its entitlement to a permit for the Commercial Unit A Dock .
1502T he hearing convened on August 14, 2018 . At the
1513commencement of the hearing, the undersigned took up
1521Petitioner Ó s Emergency Motion for Continuance of Final Hearing
1531and Omnibus Motion in Limine , both of which were directed to
1542testimony of DEP employees related to whether the Buccaneer
1551Condominium or Commercial Unit A would be the appropriate
1560applicant for the Commercia l Unit A Dock. For reasons set forth
1572in the transcript, the motions were denied.
1579The ERP under review having been issued under the authority
1589of chapter 373, Florida Statutes, that element of the hearing
1599was subject to the modified burden of proof established in
1609section 120.569(2)(p), Florida Statutes. The SSL Authorization
1616was issued under the authority of chapter 253, Florida Statutes.
1626Thu s, the burden remains with the A pplicant to demonstrate
1637entitlement to the easement. The burden of proof pr ovisions are
1648discussed in the Conclusions of Law herein.
1655Joint Exhibits 1 through 9 , consisting of the application
1664file for the ERP and SSL Authorization , w ere received in
1675evidence by stipulation of the parties .
1682Respondents c alled the following witnesses: Benjamin K.
1690Sharfi, Trustee of the Benjamin K. Sharfi Trust 2002 and
1700President of The Buccaneer Condominium of Palm Beach Shores;
1709Daniel Blanton , who was tendered and accepted as an expert in
1720surveying and mapping ; Captain James Robertson, who was tendered
1729and accepted as an expert in boating safety, vessel
1738maneuverability, and navigation ; and Pete Peterson, P.E., who
1746was tendered and accepted as an expert in ocean engineering and
1757marina design and layout . RespondentsÓ Exhibits 5 through 7,
176720, and 2 1 were received in evidence.
1775The D EP called Jason Andreotta, assistant director of the
1785DEP Southwest District, and offered DEP Exhibits 1 thro u gh 14,
179716, 17, 19, 21, 22, 24, and 25 in evidence .
1808Petitioner called the following witnesses: Craig Wallace,
1815who was tendered and accepted as an expert in surveying and
1826mapping; Bryan Cheney; Jack Cox, who was tendered and accepted
1836as an expert in coastal engineering and marina design; and Dane
1847Fleming, who was tendered and accepted as an expert in
1857navigation, Ðrules of the road,Ñ and seamanship. Great American
1867Exhibit s 1, 5 through 9, and 33 were received in evidence.
1879A t wo - volume Transcript of the final hearing was filed ,
1891with the final volume being filed on September 19, 2018. The
1902parties were given 20 days from the filing of the Transcript
1913within which to file their proposed recommended orders , and were
1923telephonically granted additional time until October 15 , 2018 .
1932T he par ties filed p roposed r ecommended o rder s on October 15,
19472018 , each of which has been considered in the preparation of
1958this Recommended Order .
1962The law in effect at the time the D EP takes final agency
1975action on the application being operative, references to
1983statutes are to their current versions , unless otherwise noted.
1992Lavernia v. DepÓt of ProfÓl Reg. , 616 So. 2d 53 (Fla. 1st
2004DCA 1993).
2006FINDINGS OF FACT
2009Based upon the demeanor and credibility of the witnesses ,
2018the stipulations of the parties, and the evidentiary record of
2028this proceeding, the following Findings of Fact are made:
2037The Parties
20391 . Great American is a foreign for - profit corporation
2050doing business in the State of Florida. Great American owns the
2061144 Property . The 144 Property is located immediately north of,
2072and adjacent to, the Buccaneer Condominium , and shares a
2081riparian line (the Ðriparian lineÑ) extending waterward from the
2090line separating the upland propert ies . The location of the
2101riparian line between the Bu ccaneer Cond ominium and the
2111144 Property is as depicted on the proposed ERP and SSL
2122Author ization, and is not in dispute. The 144 Property has
213392 feet of shoreline on Lake Worth, and includes the small
2144residential 144 D ock .
21492 . The 144 Property is used annually by the family of
2161Great AmericanÓs principal shareholders . When not being
2169utilized by family members , Great American leases the
2177144 Property to various individuals. As a rule, all persons
2187using the 144 Property moor vessels at the 144 Dock , which are
2199gen er ally in the 50 - to 60 - foot range, but which c an be up to
221880 feet in length.
22223 . The Buccaneer Condominium is a Florida c ondominium
2232a ssociation establish ed pursuant to and governed by c hapter 718,
2244Florida Statutes, and subject to the Declaration of Condominium
2253recorded within the public records of Palm Beach County, Florida
2263(the ÐDeclarationÑ) .
22664 . The Buccaneer Condominium is a mixed - use condominium
2277facility located at 142 Lake Drive, West Palm Beach, Florida,
2287and is a waterfront ri parian owner. The Buccaneer Condominium
2297o ffers, as an amenity of its 18 condominium units, the 18 - slip
2311Buccaneer Condominium Dock that is a common element of t he
2322Buccaneer Condominium . The Buccaneer Condominium unit owners
2330each own an undivided interest in the common elements of the
2341condominium, and , therefore , an undivided interest in the
2349Buccaneer Dock. The Buccaneer Condominium designate s and
2357license s a dock space to each condominium owner, and each owner
2369has the irrevo cable and exclusive right to use of a dock space.
23825 . S ection 718.111(3) establishes that the Buccaneer
2391Condominium has the non - exclusive right to file suit on behalf
2403of the members of the Association relative to claims which
2413involve common elements , while reserving the statutory and
2421common law right for unit owners to bring any action without
2432participation by the Buccaneer Condominium .
24386 . Mr. Sharfi is the President of the Buccaneer
2448Condominium and is authorized to act on its behalf pursuant to
2459the Declaration a nd associated corporate bylaws.
24667 . Mr. Sharfi is a member of the Buccaneer Condominium by
2478virtue of his ownership of multiple condominium units , along
2487with the irrevocable and exclusive right to use Buccaneer D ock
2498spaces associated with his units.
25038 . Mr. Sharfi owns Commercial Unit A, which was purchased
2514from Great American in January 2017. The rights granted to
2524Commercial Unit A to use Buccaneer Condominium property and
2533common elements are established in s ection 5. 2.3 of the
2544Declaration. Pursuant to Article VIII, s ection 8.3 of the
2554Declaration :
2556T o the extent permitted by law, any and all
2566riparian rights to add additional dock
2572spaces is hereby reserved, granted and
2578assigned to Unit A and the Owner thereof
2586. . . . Wi thout limiting the foregoing, the
2596Owner of commercial Unit A shall have the
2604right, power, and authority, to the extent
2611permitted by law , to construct any
2617additional dock spaces in the waterway
2623contiguous to the Condominium property . . .
2631provided, howeve r, the use thereof shall be
2639deemed to be and have been designated and
2647assigned perpetually and exclusively to and
2653as an appurtenance to Commercial Unit A.
26609 . The Buccaneer Condominium and Commercial Unit A are
2670joint applicants for the Permit at issue , with the Buccaneer
2680Condominium being included as an applicant due to its status as
2691an upland riparian owner and current SSLL lessee.
269910 . DEP is an agency of the State of Florida pursuant to
2712s ection 20.255, Florida Statutes. The DEP is the permitting
2722authority in this proceeding and issued the proposed Permit .
273211 . The BTIITF is a collegial body established pursuant to
2743Article IV, s ection 4 (f) of the Florida Constitution , whose
2754existence is reaffirmed by s ection 253.001, Florida Statutes.
2763The B TIITF holds title to the sovereign ty submerged lands within
2775the State in trust for the use and benefit of the public
2787pursuant to Article X, s ection 11 of the Florida Constitution.
279812 . The D EP performs staff duties and functions on behalf
2810of the BTIITF related to the review of application s for
2821authorization to use sovereignty submerged lands necessary for
2829an activity regulated under part IV of chapter 373 for which the
2841D EP has permitting responsibility. § 253.002(1), Fla. Stat .
2851The D EP has been delegated the authority to take final agency
2863action, without any action by the BTIITF , on applications for
2873authorization to use sovereignty submerged lands for any
2881activity for which the D EP has permitting respo nsibility.
2891§ 253.002(2), Fla. Stat. ; Fla. Admin. Code R. 18 - 21.0051(2) .
2903The Buccaneer Condominium Dock
290713 . The Buccaneer Condominium D ock was constructed
2916in 1958 , prior to regulatory rules being in place , and is ,
2927therefore , a grandfathered structure. From a regulatory
2934perspective, it is a Ðprivate residential multi - family dock or
2945pierÑ as defined in Florida Administrative Code R ule
295418 - 21.003(47) , exclusively serving the 18 - unit Buccaneer
2964Condominium. Petitioner ha s not challeng ed the legality of the
2975existing lease or prior leases for the Buccaneer Condominium
2984Dock .
298614 . The Buccaneer Condominium Dock consists of 18 dock
2996spaces, nine of which face no rth in the direction of the
3008144 Dock, and nine of which face south . There is no use of the
3023Buccaneer Condominium Dock by the public.
302915 . The Buccaneer D ock extends 16 2 feet from the seawall.
3042The Buccaneer Dock includes a fueling facility at its
3051seaward end .
3054The Proposed Commercial Unit A Dock
306016 . The proposed Commercial Unit A Dock would be
3070constructed from the end of the Buccaneer Condominium Dock. It
3080is proposed to consist of 12 slips in a double - loaded fashion,
3093with six slips facing north (in the direction of the 144 Dock)
3105and six slips facing south , and tw o short - term or transient
3118T - head mooring position s for fueling for a total of
313014 commercial slips over 2,370 square feet. The T - head will
3143accommodate a fueling station, replacing the current fueling
3151platform at the end of the Buccaneer Condominium Dock. The
3161Commercial Unit A Dock will be approximately 140 feet in length,
3172resulting in a combined structure of 302 feet from the bulkhead
3183westerly towards the Singer Island C hannel.
319017 . The westernmost boundary of the proposed SSLL extends
320020 feet beyond the T - head to allow for vessels to tie up at the
3216fueling station. The SSLL will, according to the Permit
3225drawings, extend 324.5 feet into Lake Worth and the Singer
3235Island Channel . The total preempted area for the modified SSLL
3246will be 49,800 square feet.
325218 . The Commercial Unit A Dock will be open to the general
3265public for use on a first - come, first - served basis to serv e the
3281restaurant in Commercial Unit A.
3286Adverse Affects on Nav igation/Navigational Hazard
329219 . The Environmental Resource Permit ApplicantÓs Handbook
3300( Ð A.H. Ñ ) , z Vol. I , provides criteria to be considered in
3314conjunction with the standards established in section 373.414,
3322and Florida Administrative Code R ule 62 - 330.301, for issuance of
3334an ERP . 1 / Section 10.2.3.3 of the A.H. establishes that the DEP
3348is to evaluate and consider the current navigation uses of the
3359surface water in determining whether to issue a n ERP.
3369Singer Island Channel
337220 . The Singer Island Channel runs in a north/south
3382direction and is the navigational channel closest to the
3391Buccaneer Condominium Dock and proposed Commercial Unit A Dock,
3400the 144 Dock, Great American Ós Sailfish Marina to the south, and
3412the Cannonsport Mar ina to the north. The east side of the
3424Singer Island Channel is generally defined by the waterward ends
3434of the docks and marinas in the area, while the western side is
3447defined by the Peanut Island shoal . The Singer Island Channel
3458is widely used, but is not to be confused with the Intracoastal
3470Waterway (ÐICWÑ), which is the main navigational thoroughfare
3478for commercial and recreational vessels in the area, and which
3488runs to the west of nearby Peanut Island.
349621 . The eastern edge of the proposed SSLL exte nsion will
3508become a part of what is an essentially straight line from the
3520Sailfish Marina docks to the Cannonsport Marina docks.
352822 . T here will be approximately 97 feet of open water
3540between the northwestern corner of the proposed SSLL to the
3550closest point on a n imaginary straight line drawn from the
3561nearest Singer Island Channel markers located to the north and
3571south of the proposed SS L L . The visible edge of the Singer
3585Island Channel is , at a minimum, an additional 15 feet west of
3597tha t imaginary line. Thus, a preponderance of the evidence
3607establishes that the Ðpinch pointÑ between the SSLL and the
3617navigable edge of the Singer Island Channel is , at its
3627narrowest , 1 12 feet in width.
363323 . A preponderance of t he evidence establishes that
364397 f ee t of open water is sufficient to allow vessels of the size
3658that frequent the area to easily maneuver if they were to pass
3670at th e Singer Island ChannelÓs narrowest point. Given that
3680there is a minimum of 15 feet of additional open - water space to
3694the visible edge of the Singer Island Channel, there will be no
3706adverse impact to the navigation of the vessels transiting the
3716Singer Island C hannel.
372024 . Th e finding that the space be tween the Commercial
3732Unit A Dock SSLL and the edge of the Singer Island Channel is
3745sufficient to allow unimpeded navigation is substantiated by the
3754clearance deemed sufficient to allow for safe navigation beneath
3763t he nearby Blue Heron Bridge . The Blue Heron Bridge is north of
3777the proposed Buccaneer Commercial Dock on the I CW . The ICW is
3790the primary channel for commercial, recreational ( sport
3798fishermen, yachts, and pleasure craft) and Coast Guard vessels.
3807The passage beneath the bridge is flanked by fixed dolphins or
3818guardrails. T he clearance under the bridge is 90 feet, which is
3830sufficient for two vessels to pass in the federal ly - maintained
3842channel.
384325 . Petitioner argue d that the Blue Heron B ridge is not an
3857appropriate comparator for an evaluation of impediments or
3865hazards to navigation, since the passage beneath the bridge is
3875not in an environment comparable to what would be expected in
3886the vicinity of the proposed Commercial Unit A Dock , i.e. with
3897vessels tying up at the periphery of the channel for fueling,
3908and with vessels maneuvering into and out of nearby slips . The
3920evidence to that effect was disputed, and in any event was not
3932persuasive. The fact that vessels are able to maneuver and pass
3943one another without incide nt in a space of 90 feet is persuasive
3956evidence that they will be able to do so in a space of 97 feet
3971in width , and even more persuasive that they will be able to do
3984so in a space of 112 feet in width .
399426 . R ecreational vessels often pull up onto the Peanut
4005Island s hoal that extends to the north and east from Peanut
4017Island. The shoal has areas that are above water at low tide,
4029and is apparently a popular spot for small - craft boaters to pull
4042up and anchor. T h e evidence suggests that boaters more commonly
4054pull onto the shoal closer to the northwest corner of the
4065channel, near the Cannonsport Marina, or off to the west of
4076Peanut Island well away from the proposed Commercial Unit A
4086Dock , though there is nothing to prevent boats from pulling onto
4097the shoal in the vicinity of the proposed Commercial Unit A
4108Dock. However, it is illegal to anchor in or block a marked
4120navigational channel, as is the Singer Island Channel, and any
4130vessels doing so wou ld be required to move by the Marine Patrol
4143or the Coast Guard.
414727 . Finally, an argument was made that vessels standing
4157off while waiting to fuel at the proposed Commercial Unit A Dock
4169would create an impediment to navigation. It was established by
4179a p reponderance of the competent, substantial , and credible
4188evidence t hat there is sufficient space to stand off without
4199interfering with traffic in the Singer Island Channel ,
4207particularly in the open water area to the north of the proposed
4219Commercial Unit A Dock , but also to the significantly wider and
4230more open areas to the south of the proposed Commercial Unit A
4242Dock . Furthermore, t he area around the proposed Commercial
4252Unit A Dock is in a less congested area than th e fueling
4265facility at the center dock of the adjacent Sailfish Marina
4275which, as depicted on RespondentÓs Exhibit 20 , is flanked by
4285sizable docks . There was no evidence that the Sailfish Marina
4296has been a cause of navigational impediments as a result of
4307vessels standing off for fuel.
431228 . Based on the record as a whole, including evidence of
4324the existing commercial docks in the area, current channel
4333width , and boating traffic and use patterns in the area, a
4344preponderance of the evidence demonstrates that n either the
4353112 - foot width of open water from the northwest corner of the
4366proposed Commercial Unit A Dock to the edge of the Singer Island
4378Channel at its closest point , nor the 97 - foot width as measured
4391to the imaginary channel marker line, creates a condition that
4401is reasonably expected to s ignificantly impede navigability or
4410create a navigational hazard.
4414144 Property
441629 . The existing Buccaneer Condominium Dock is 162 feet in
4427length, with a fueling facility at its waterward end. As with
4438the proposed Commercial Unit A Dock fuel ing platform, an
4448additional 20 feet should be calculated from the end of the dock
4460to account for vessels tying up to fuel. There was no evidence
4472that the existing Buccaneer Condominium D ock impeded access to
4482the 144 Dock by persons affiliated with Petitioner or by the
4493more frequent renters of the 144 Property. The evidence was
4503co nvincing that the Buccaneer Condominium Dock does not create a
4514condition that is reasonably expected to significantly impede
4522navigability or create a navigational hazard.
452830 . The proposed Commercial Unit A Dock is designed to
4539extend 140 feet from the end of the Buccaneer Condominium Dock.
455031 . The proposed Commercial Unit A Dock complies with the
456125 - foot set back requirement from the 144 Property riparian line
4573as required by rule 18 - 21.004(3)(d).
458032 . The area to the north of the 144 Dock is wide open,
4594with more than enough space to maneuver any vessel that
4604currently uses the 144 Dock. Furthermore, the space available
4613for maneuvering in the waters south of the 14 4 dock will not be
4627appreciably more restricted than the restriction posed by the
4636Buccaneer Condominium Dock, and will be no more restricted than
4646the space for maneuvering between docks at the Sailfish Marina
4656or the Cannonade Marina.
466033 . Mr. Fleming agreed that there is no adverse
4670navigational condition , vis - à - vis the 144 Dock , resulting from
4682the Buccaneer Condominium Dock. His c oncern with navigation was
4692based on his assumption that the Commercial Unit A Dock would
4703increase vessel traffi c in the area , blocking the fairway to the
4715south of the 144 Dock and increasing the possibility of a
4726collision. That concern can only have merit if it is assumed
4737that the operators of vessels in the area are completely
4747unfamiliar with common maritime rule s of right - of - way and
4760maneuvering. The area around the Commercial Unit A Dock will
4770remain less congested than nearby facilities. It is simply
4779implausible, and unsupported by competent, substantial evidence,
4786that the proposed Commercial Unit A Dock will a dversely affect
4797navigation to or from the 144 Dock .
480534 . Petitioner holds a self - certification from the DEP
4816which acknowledges PetitionerÓs qualification for an exemption
4823for a residential dock of up to 1,000 square f eet at the
4837144 Property . Such docks are exempt by statute and rule.
4848§ 403.813(1)( b), Fla. Stat.; Fla. Admin. Code Rule 62 -
4859330.051 (5)(b). Despite the fact that Petitioner is allowed to
4869construct an exempt dock extending from the 144 Property into
4879the waterway , there was no persuasive evidence as to when, or
4890if, the dock would be built , or that the dock, if constructed,
4902would result in the proposed Commercial Unit A Dock being found
4913to adversely affect navigation or create a navigational hazard.
492235 . A preponderance of th e evidence establishes that the
4933proposed Commercial Unit A Dock will not adversely affect or
4943impede navigability , or create a navigational hazard for vessels
4952ingressing and egressing the 144 Dock.
495836 . In addition to the lack of credible evidence that the
4970Commercial Unit A Dock will ad versely affect or impede
4980navigation, the evidence is equally unpersuasive that riparian
4988rights incident to the 144 Property will be impaired. There was
4999no evidence, oth er than speculation and conjecture , regarding
5008the currently non - existen t future 144 Dock, that suggest that
5020Petitioner Ós riparian interests would be impaired to any
5029appreciably greater degree than they would be as a result of the
5041current 162 - f oot Buccaneer Condominium Dock and the additional
505220 - feet for vessels tying up to fuel. In addition, the
5064Commercial U nit A Dock is subject to the 25 - foot setback
5077required by rule. A preponderance of the evidence establishes
5086that the proposed Commercial Unit A Dock will not unreasonably
5096infringe upon PetitionerÓs riparian rights.
5101Commercial Unit A Dock as an Extension of the Buccaneer
5111Condominium Dock
511337 . The DEP established the propriety of having the
5123Buccaneer Condominium Association as a co - applicant with
5132Commercial Unit A since it is the holder of the existing lease
5144and an upland riparian interest. See , e.g. , Fla. Admin.
5153Code R. 18 - 21.004 (1)(c) and (d).
516138 . Rule 18 - 21.004(4) (b)2. , which establishes a ratio Ð of
5174no more than forty square feet of sovereignty submerged land for
5185each linear foot of the applicantÓs common riparian shoreline
5194. . . to square feet of multi - family residential dock [the Ð40:1
5208ruleÑ] Ñ applies only to private multi - family residential docking
5219facilities. The Buccaneer Condominium Dock is a grandfathered
5227dock based on its existence and configuration prior to the
5237promulgation of the 40:1 rule. There is no proposed extension
5247or material a lteration of the Buccaneer Condominium Dock . 2 /
525939 . The 40 :1 rule does not apply to t he Commercial Unit A
5274Dock because the rule applies only to p rivate residential multi -
5286family docks , and does not apply to commercial slips. Thus , the
5297DEP did not apply the 40:1 rule to the proposed Commercial
5308Unit A Dock.
531140 . The combined preempted area encompassed by the
5320modified SSLL will not exceed 50,000 square feet, or result in a
5333facility of more than 50 slips. The Buccaneer Condominium Dock,
5343as a grandfathered structure, does not require an exception to
5353the 40:1 rule.
535641 . There was no persuasive evidence that the Buccan eer
5367Condominium Dock and the Commercial Unit A Dock are part of a
5379common plan of development designed to operate as a single dock
5390for the Buccaneer C ondominium. T he Buccaneer Condominium Dock
5400will be materially unchanged in use and configuration, and will
5410remain dedicated to the owners of Buccaneer Condominium units .
5420The Commercial Unit A Dock will be a first - come, first - served
5434commercial dock for the primary purpose of allowing transient
5443dockage for patrons of the restaurant on Commercial Unit A.
5453CONCLUSIONS OF LAW
5456Jurisdiction
545742 . The Division of Administrative Hearings has
5465jurisdiction over the parties to and the subject matter of this
5476proceeding. §§ 120.569 and 120.57, Fla. Stat.
5483Standing
548443 . Section 120.52(13) defines a Ðparty , Ñ in pertinent
5494part, as a person Ð whose substantial interests will be affected
5505by proposed agency action, and who makes an appearance as a
5516party.Ñ Section 120.569(1) provides, in pertinent part, that
5524Ð[t]he provisions of this section apply in all proceedi ngs in
5535which the substantial interests of a party are determined by an
5546agency.Ñ
554744 . Standing under chapter 120 is guided by the two -
5559pronged test established in the seminal case of Agrico Chemical
5569Corporation v. Dep artment of Env ironmental Regulation ,
5577406 So. 2d 478 (Fla. 2d DCA 1981). In that case, the c ourt
5591held that:
5593We believe that before one can be considered
5601to have a substantial interest in the
5608outcome of the proceeding, he must show
56151) that he will suffer an injury in fact
5624which is of sufficie nt immediacy to entitle
5632him to a section 120.57 hearing and 2) that
5641his substantial injury is of a type or
5649nature which the proceeding is designed to
5656protect. The first aspect of the test deals
5664with the degree of injury. The second deals
5672with the natur e of the injury.
5679Id. at 482.
568245 . Agrico was not intended as a barrier to the
5693participation in proceedings under chapter 120 by persons who
5702are affected by the potential and foreseeable results of agency
5712action. Rather, Ð[t]he intent of Agrico was to p reclude parties
5723from intervening in a proceeding where those parties Ó
5732substantial interests are totally unrelated to the issues that
5741are to be resolved in the administrative proceedings. Ñ
5750Mid - Chattahoochee River Users v. Fla. Dep't of Envtl. Prot. ,
5761948 So. 2d 794, 797 (Fla. 1st DCA 2006)(citing Gregory v. Indian
5773River Cnty. , 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).
578446 . The standing requirement established by Agrico has
5793been refined, and now stands for the proposition that standing
5803to initiate an a dministrative proceeding is not dependent on
5813proving that the proposed agency action would violate applicable
5822law. Instead, standing requires proof that a petitioner has a
5832substantial interest and that the interest reasonably could be
5841affected by the proposed agency action. Whether the effect
5850would constitute a violation of applicable law is a separate
5860question.
5861Standing is Ða forward - looking conceptÑ and
5869Ðcannot ÒdisappearÓ based on the ultimate
5875outcome of the proceeding.Ñ . . . When
5883standing is challenged during an
5888administrative hearing, the petitioner must
5893offer proof of the elements of standing, and
5901it is sufficient that the petitioner
5907demonstrate b y such proof that his
5914substantial interests Ð could reasonably be
5920affected by . . . [the] proposed
5927activities.Ñ
5928Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of Envtl. Prot. ,
593914 So. 3d 1076, 1078 (Fla. 4th DCA 2009) (citing Peace
5950River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co . ,
596018 So. 3d 1079, 1083 (Fla. 2d DCA 2009) ; and Hamilton C nty . Bd.
5975of Cnty. Comm'rs v. State, Dep't of Envtl. Reg. , 587 So. 2d 1378
5988(Fla. 1st DCA 1991)); see also St. Johns Riverkeeper, Inc. v.
5999St. Johns River Water Mgmt. Dist. , 54 So. 3d 1051, 1055 (Fla.
60115th DCA 2011) (ÐUltimately, the ALJ's conclusion adopted by the
6021Governing Board that there was no proof of harm or that the harm
6034would be offset went to the merits of the challenge, not to
6046standing.Ñ).
604747 . Petitioner all eged standing based on its ownership of
6058riparian property adjacent to the site of proposed Commercial
6067Unit A Dock.
607048 . Petitioner alleged that the p roposed Permit and SSL
6081Authorization would affect navigation in the Si nger Island
6090Channel , would affect its ability to use its riparian area
6100adjacent to the p roposed Commercial Unit A Dock , and will result
6112in increased traffic and vessel queueing within PetitionerÓs
6120riparian area. These concerns over impacts to navigation
6128and riparian rights are pre cisely the type of injuries an
6139administrative hearing on the Application is designed
6146to protect .
614949 . The allegations of navigational impairment meet the
6158second prong of the Agrico test, that is, this proceeding is
6169designed to protect the adjacent owners from potential adverse
6178impacts on navigation caused by the p roposed Commercial Unit A
6189Dock , impacts that are the subject of chapter s 253 and 373 , and
6202the rules adopted thereunder.
620650 . The question for determination as to the first prong
6217of the Agrico test is whether Petitioner has alleged injuries in
6228fact of sufficient immediacy as a result of the proposed Permit
6239to entitle it to a section 120.57 hearing. Ð[T] he injury - in -
6253fact standard is met by a showing that the petitioner has
6264sustained actual or i mmediate threatened injury at the time the
6275petition was filed, and Ò[t]he injury or threat of injury must
6286be both real and immediate, not conjectural or hypothetical.ÓÑ
6295S. Broward Hosp. Dist. v. Ag. for Health Care Admin. , 141 So. 3d
6308678, 683 (Fla. 1st D C A 2014 ) ( citing Vill . Park Mobile Home Ass'n
6325v. Dep't of Bus. & Prof Ól Reg . , 506 So. 2d 426, 433 (Fla. 1st
6341DCA 1987) ) .
634551 . Petitioner has sufficiently alleged that the proposed
6354Commercial Unit A Dock has the potential to result in
6364navigational impairment sufficient to meet the standard of an
6373Ðinjury in fact which is of sufficient immediacy to entitle them
6384to a section 120.57 hearing . Ñ
639152 . Respondent s have standing as the a pplicant s for the
6404Permit. Ft. Myers Real Estate Holdings, LLC v. Dep't of Bus. &
6416Prof'l Reg. , 53 So. 3d 1158, 1162 (Fla. 1st DCA 2011); Maverick
6428Media Group v. DepÓt of Transp. , 791 So. 2d 491, 492 - 493
6441(Fla. 1st DCA 2001) .
6446Nature of the Proceeding
645053 . This is a de novo proceeding, intended to formulate
6461final agency action and not to review action taken earlier and
6472preliminarily. Young v. DepÓt of Cmty. Aff. , 625 So. 2d 831,
6483833 (Fla. 1993); Hamilton Cnty. Bd. of Cnty. Comm'rs v. Dep't of
6495Envtl. Reg . , 587 So. 2d at 1387; McDonald v. DepÓt of Banking &
6509Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA 1977).
6519B urden and Standard of Proof
652554 . Section 120.569(2)(p) provides that:
6531For any p roceeding arising under
6537chapter 373, chapter 378, or chapter 403, if
6545a nonapplicant petitions as a third party to
6553challenge an agency's issuance of a license,
6560permit, or conceptual approval, the order of
6567presentation in the proceeding is for the
6574permit applicant to present a prima facie
6581case demonstrating entitlement to the
6586license, permit, or conceptual approval,
6591followed by the agency. This demonstration
6597may be made by entering into evidence the
6605application and relevant material submitted
6610to the agency in support of the application,
6618an d the agency's staff report or notice of
6627intent to approve the permit, license, or
6634conceptual approval. Subsequent to the
6639presentation of the applicant's prima facie
6645case and any direct evidence submitted by
6652the agency, the petitioner initiating the
6658actio n challenging the issuance of the
6665permit, license, or conceptual approval has
6671the burden of ultimate persuasion and has
6678the burden of going forward to prove the
6686case in opposition to the license, permit,
6693or conceptual approval through the
6698presentation of competent and substantial
6703evidence.
670455 . The A pplicants made their prima facie case of
6715entitlement to the ERP by entering into evidence the complete
6725application files and supporting documentation , and the
6732D epartmentÓs Consolidated Environmental Resource Permit and
6739Recommended Intent to Grant State - owne d Submerged Lands
6749Authorization , Permit No. 50 - 0147856 - 003 - EI . In addition, the
6763A pplicants presented the testimony of expert and lay witnesses
6773in support of the application . With the A pplicants having m ade
6786their prima facie case, the burden of ultimate persuasion is on
6797Petitioner to prove its case in opposition to the ERP by a
6809preponderance of the competent and substantial evidence , and
6817thereby prove that the Applicants failed to provide r easonable
6827assur ance that the standards for issuance of the ERP were met.
683956 . A n authorization to use sovereignty lands is governed
6850by chapter 253 and is not a Ðlicense, permit, or conceptual
6861approvalÑ under chapter s 373, 378, or 403. Therefore, the
6871modified burden of proof established in section 120.569(2)(p)
6879does not apply to the SSL Authorization . Thus, the Applicants
6890bear the burden of demonstrating, by a preponderance of the
6900evidence, entitlement to sovereignty lands approval . Fla. Dep't
6909of Transp. v. J.W. C. Co. , 396 So. 2d 778, 788 (Fla. 1st DCA
69231981 ); Save O ur Creeks, Inc. v. Fla. Fish & Wildlife Conser.
6936CommÓn , Case No. 12 - 3427 (Fla. DOAH July 3, 2013; Fla. DEP
6949Jan. 14, 2014).
695257 . The standard of proof is the preponderance of the
6963evidence. § 120.57(1) (j) , Fla. Stat.
6969Reasonable Assurance Standard
697258 . I ssuance of the proposed Permit i s dependent upon
6984there being reasonable assurance that the activities authorized
6992will meet applicable standards.
699659 . Reasonable assurance means Ða substantial likelihood
7004that the project will be successfully implemented.Ñ
7011Metropolitan Dade Co. v. Coscan Fla., Inc. , 609 So. 2d 644,
7022648 (Fla. 3d DCA 1992). Reasonable assurance does not require
7032absolute guarantees that the applicable conditions for issuance
7040of a permit have been satisfied. Furthermore, speculation or
7049subjective beliefs are not sufficient to carry th e burden of
7060presenting contrary evidence or proving a lack of reasonable
7069assurance necessary to demonstrate that a permit should not be
7079issued. FINR II, Inc. v. CF Indus . , Inc. , Case No. 11 - 6495
7093( Fla. DOAH Apr . 30, 2012; Fla. DEP June 8, 2012).
7105ERP Permi tting Authority
710960 . Section 373.414(1) provides, as pertinent to the
7118issues in this proceeding, that:
7123As part of an applicantÓs demonstration that
7130an activity regulated under this part will
7137not be harmful to the water resources or
7145will not be inconsistent with the overall
7152objectives of the district, . . . the
7160department shall require the applicant to
7166provi de . . . reasonable assurance that such
7175activity in, on, or over surface waters or
7183wetlands, as delineated in s. 373.421(1), is
7190not contrary to the public interest . . . .
7200(a) In determining whether an activity,
7206which is in, on, or over surface waters or
7215wetlands, as delineated in s. 373.421(1),
7221and is regulated under this part, is not
7229contrary to the public interest . . . the
7238department shall consider and balance the
7244following criteria:
72461. Whether the activity will adversely
7252affect the public health, s afety, or welfare
7260or the property of others;
7265* * *
72683. Whether the activity will adversely
7274affect navigation or the flow of water or
7282cause harmful erosion or shoaling [.]
728861 . Pursuant to its rulemaking authority, the D EP adopted
7299rule 62 - 330.302 , which establish es the standards applicable to
7310this proceeding.
731262 . Rule 62 - 330.302(1)(a) provides, in pertinent part,
7322that:
7323(1) In addition to the conditions in
7330rule 62 - 330.301, F.A.C., to obtain an
7338individual or conceptual approval permit
7343under this chapter, an applicant must
7349provide reasonable assurance that the
7354construction, alteration, operation,
7357maintenance, repair, removal, and
7361abandonment of a project:
7365(a) Located in, on, or over wetlands or
7373other surface waters will not be contrary to
7381the pub lic interest, . . . a s determined by
7392balancing the following criteria as set
7398forth in sections 10.2.3 through 10.2.3.7 of
7405Volume I:
74071. Whether the activities will adversely
7413affect the public health, safety, or welfare
7420or the property of others;
7425* * *
74283. Whether the activities will adversely
7434affect navigation or the flow of water or
7442cause harmful erosion or shoaling [.]
744863 . The A.H. has been adopted for use by the DEP and the
7462S tateÓs five wa ter management districts. Fla. Admin. Code
7472R. 62 - 330.010(4 ). The A.H. was developed Ð to help persons
7485understand the rules, procedures, standards, and criteria that
7493apply to the environmental resource permit (ERP) program under
7502Part IV of Chapter 373 of the Florid a Statutes (F.S.).Ñ
7513A.H. § 1.0.
751664 . Section 10.2.3 of the A.H., entitled Public Interest
7526Test, provides guidance and elaboration for rule 62 -
7535330.302(1)(a) and provides, in pertinent part, that:
7542In determining whether a regulated activity
7548located in, on, or over wetlands or other
7556surface waters is no t contrary to the public
7565interest, . . . T he Agency shall consider
7574and balance, and an applicant must address,
7581the following criteria:
7584* * *
7587(a) Whether the regulated activity will
7593adversely affect the public health, safety,
7599or welfare or the property of others
7606(subparagraph 62 - 330.302(1)(a)1, F.A.C.);
7611* * *
7614(c) Whether the regulated activity will
7620adversely affect navigation or the flow of
7627water or cause harmful erosion or shoaling
7634(subparagraph 62 - 330.302(1)(a)3, F.A.C.) .
7640Public Health, Safety, or Welfare or the Property of Others
765065 . Section 10.2.3.1 of the A.H., entitled Public Health,
7660Safety, or Welfare or the Property of Others , provides , with
7670regard to the issues raised in this case, that:
7679In reviewing and balancing the criterion
7685regarding public health, safety, welfare and
7691the property of others in section 10.2.3(a),
7698above, the Agency will evaluate whether the
7705regulated activity located in, on, or over
7712wetlands or other surface waters will cause:
7719(a) An environmental hazard to public
7725heal th or safety or improvement to public
7733health or safety with respect to
7739environmental issues. Each applicant must
7744identify potential environmental public
7748health or safety issues resulting from their
7755project. Examples of these issues include:
7761. . . aids t o navigation; . . . and similar
7773environmentally related issues. For
7777example, the installation of navigational
7782aids may improve public safety and may
7789reduce impacts to public resources [.]
779566 . Although Ð[w]hether the Applicant has provided FDEP
7804and the Board with reasonable assurances that the Expanded
7813Buccaneer Dock will not threaten health, public safety or
7822welfare, or will not otherwise be in contravention of public
7832interestÑ was generally identified as an issue for disposition
7841in the JPS, that rule, and the corresponding provisions of the
7852A.H. section 10.2.3.1, are clearly directed towards
7859Ðenvironmental hazardsÑ and to Ðpublic health or safety with
7868respect to environmental issues.Ñ
787267 . Subs ection s 10.2.3.1(b), (c), and (d) are inapplicable
7883to this proceeding. As to sub section 1 0.2.3.1(a) , t here has
7895been no suggestion that navigational aids would remedy or
7904influence any of the navigational hazards alleged by
7912Petitioners . Thus, it is concluded that the proposed Commercial
7922Unit A Dock meets the standards established in r ule 62 -
7934330.302(1)(a)1. , and section 10.2.3.1 of the A.H. for issuance
7943of the ERP .
7947Navigation
794868 . Section 10.2.3.3 of the A.H., entitled Navigation,
7957Water Flow, Erosion and Shoaling, provides, in pertinent part,
7966as follows:
7968In reviewing and balancing the criterion on
7975navigation, erosion and shoaling in
7980section 10.2.3(c), above, the Agency will
7986evaluate whether the regulated activity
7991located in, on or over wetlands or other
7999surface waters will:
8002(a) Significantly impede navigability or
8007enhance navigability. The Agency will
8012consider the current navigational uses of
8018the surface waters and will not speculate on
8026uses t hat may occur in the future . . . .
8038Applicants proposing to construct docks,
8043piers and other works that extend into
8050surface waters must address the continued
8056navigability of these waters. An
8061encroachment into a marked or customarily
8067used navigation channe l is an example of a
8076significant impediment to navigability.
808069 . The proposed Commercial Unit A Dock will not encroach
8091into a marked or customarily used navigation channel.
809970 . Application of the ERP public interest navigation
8108standard has been appl ied as follows:
8115ÐNavigationÑ in terms of the public interest
8122criteria is primarily associated with the
8128use of publicly used shipping lanes or
8135channels. ÐNavigationÑ and ÐRecreationÑ do
8140not mean the preservation of usual
8146recreational routes or a guarantee of onesÓ
8153former ease of access to and from oneÓs
8161dock.
8162* * *
8165Each littoral property owner has a right,
8172equal to that of his neighbors, to wharf out
8181to navigable depths for the purpose of
8188ingress and egress by water. This right is
8196balanced by the publi c interest in
8203preventing . . . infringement on the general
8211rights of the public to use public bodies of
8220water for navigation and recreation.
8225Clarke v. Melton , DOAH Case No . 89 - 6051, RO at 20
8238( Fla. DOAH Oct. 16, 1990; Fla. DEP Nov. 30, 1990).
824971 . In the Clarke v. Melton Final Order, the Secretary of
8261the D EP established that :
8267ÐNavigation Ñ in terms of the public interest
8275criteria is primarily associated with the
8281use of publicly used shipping lanes or
8288channels. This conclusion properly reflects
8293the Department's legal interpretation of
8298Section 403.918(2)(a)3., Florida Statutes,
8302[now set fort h in section 373.414(1)(a)3. ]
8310as reflected in previous final orders of the
8318Department.
8319Id. , FO at 17 ; see also Rood v. Hecht and DepÓt of Envt l . Prot. ,
8335Case Nos. 98 - 3879 and 9 8 - 3880 ( Fla. DOAH Mar. 10, 1999; Fla.
8352DEP Apr. 23, 1999) .
835772 . Petitioner failed to prove, by a preponderance of
8367competent and substantial evidence that the proposed ERP would
8376be contrary to the public interest. The e vidence demonstrates
8386that the Commercial Unit A Dock will not adversely impact
8396navigation within t he Singer Island Channel, and will not
8406adversely impact public safety through creation of unsafe
8414conditions in the Singer Island Channel.
842073 . I t is concluded that the proposed Commercial Unit A
8432Dock , having no impact on publicly - used shipping lanes or
8443channels, meets the s tandards established in r ule 62 -
8454330.302(1)(a)3. and section 10.2.3.3 of the A.H. for issuance of
8464the ERP.
8466ERP Conclusion
846874 . Section 373.414(1)(a) requires that the DEP Ðshall
8477consider and balanceÑ seven factors, which include the e ffects
8487on navigation as described above . An adverse impact for one of
8499the seven factors does not necessarily require a determination
8508that the project is contrary to the public interest. Rather,
8518all of the seven factors must be collectively considered to
8528determine whether, on balance, a proposed project satisfies the
8537public interest test. 1800 Atlantic Developers v. DepÓt of
8546Envtl. Reg. , 552 So. 2d 946, 953, 957 (Fla. 1st DCA 1989);
8558Last Stand, Inc. v. Fury Mgmt., Inc. and DepÓt of Envtl. Prot. ,
8570Case No. 12 - 2574 ( Fla. DOAH Dec. 31, 2012; Fla. DEP Feb. 7,
85852013) . There was no dispute that the public interest criteria
8596unrelated to navigation have been met. There are no reasonably
8606anticipated adverse impacts on navigation from the construction
8614of the Commerc ial Unit A Dock.
862175 . For the reasons set forth herein, Petitioner did not
8632meet its burden of demonstrating that the ERP should not be
8643issued for the reasons identified in the Amended Petition and
8653the JPS.
8655SSL Authorization Standards
865876 . Pursuant to its rulemaking authority, the BTIITF
8667adopted rule 18 - 21.004, which establishes the applicable
8676standards for issuance of the SSL Authorization and which
8685provides, in pertinent part, as follows:
8691The following management policies,
8695standards, an d criteria shall be used in
8703determining whether to approve, approve with
8709conditions or modifications, or deny all
8715requests for activities on sovereignty
8720submerged lands . . . .
8726* * *
8729(3) Riparian Rights.
8732* * *
8735(c) All structures and other activi ties
8742must be designed and conducted in a manner
8750that will not unreasonably restrict or
8756infringe upon the riparian rights of
8762adjacent upland riparian owners.
8766(d) Except as provided herein, all
8772structures, including mooring pilings,
8776breakwaters, jetties an d groins, and
8782activities m ust be set back a minimum of
879125 feet inside the applicantÓs riparian
8797rights lines . . . .
8803* * *
8806(4) Standards and Criteria for Private
8812Residential Multi - family Docks and Piers.
8819* * *
8822(b) Private residential multi - family docks
8829with three or more wetslips . . . shall be
8839limited as follows.
8842* * *
88452. A cumulative preemption of no more than
8853forty square feet of sovereignty submerged
8859land for each linear foot of the applicantÓs
8867common riparian shoreline along sovereignty
8872submerged land on the affected waterbody
8878within a single plan of development.
8884However, an exception shall be granted for a
8892private residential multi - family dock to
8899exceed the maximum cumulative preemption
8904provided that all of the following
8910conditions are m et.
8914* * *
8917e. A net positive public benefit,
8923acceptable to the Board of Trustees as
8930beneficial to the public, is provided to
8937offset the increase in preempted area . . .
8946* * *
8949(7) General Conditions for Authorizations.
8954All authorizations granted by rule or in
8961writing under Rule 18 - 21.005, F.A.C., except
8969those for geophysical testing, shall be
8975subject to the general conditions as set
8982forth in paragraphs (a) through (i) below.
8989The general conditions shall be part of all
8997authorizations under this cha pter, shall be
9004binding upon the grantee, and shall be
9011enforceable under Chapter 253 or 258,
9017Part II, F.S.
9020* * *
9023(f) Structures or activities shall not
9029unreasonably interfere with riparian
9033rights . . . .
9038(g) Structures or activities shall not
9044crea te a navigational hazard.
9049Riparian Rights
905177 . Riparian rights are legal rights , incident to lands
9061bounded by navigable waters , and are derived from common law as
9072modified by statute. Haynes v. Carbonell , 532 So. 2d 746, 748
9083(Fla. 3d DCA 1988). While recognized as legal property rights,
9093riparian rights are distinguishable from classic real property
9101interests due to the underlying state ownership of the water
9111bottom adjacent to the private riparian upland property.
9119Consequently, riparian rights have been described by Florida
9127courts as qualified rights. Freed v. Miami Pier Corp. ,
9136112 So. 841, 844 (Fla. 1927). Appurtenant to ownership of the
9147waterfront upland, the riparian owner enjoys a right to an
9157unobs tructed view across the water and a superior right to
9168access the water from his property. The riparian owner
9177possesses a ÐqualifiedÑ right to erect wharves, piers , or docks
9187to facilitate access to navigable water from his or her riparian
9198property. Theise n v. Gulf F. & A. Ry. Co. , 78 So. 491, 501
9212(Fla. 1918). Finally, riparian owners possess a common law
9221right to make access to the navigable waters publicly available
9231in a commercial context. Board of Tr s . of Int. Impust Fund
9244v. Madeira Beach Nominee , Inc. , 272 So. 2d 209, 2 14, 744
9256(Fla. 2d DCA 1973).
926078 . PetitionerÓs and the Applicants Ó status as riparian
9270owners Ðhas historically entitled them to greater rights with
9279respect to the waters that border their land, than the public
9290generally. See Bd. of Tr s . of the Int. Impust Fund v.
9303Medeira Beach Nominee, Inc. , 272 So. 2d at 214. However,
9313neither have the exclusive right to use the water that borders
9324their respective properties. Each only has the right not to be
9335deprived of the ability to navig ate and conduct commerce from
9346their riparian property. Ferry Pass ShippersÓ & InspectorsÓ
9354Ass Ón v. White Ó s River InspectorsÓ & ShippersÓ AssÓn ,
936548 So. 643, 646 (Fla. 1909).
937179 . Both Petitioner and the Applicants are entitled to
9381share in a fair and reasonable opportunity to access the water s
9393of Lake Worth . Johnson v. McCowen , 348 So. 2d 357 (Fla. 1st
9406DCA 1977); 1010 Seaway Drive, Inc. v. Phifer , Case No. 82 - 3029
9419( Fla. DOAH Apr. 29, 1983; Fla. DER June 3, 1983 ) .
943280 . Petitioner and the Applicants have agreed upon the
9442location of the common riparian line for purposes of this case ,
9453and the DEP has not been asked to determine the riparian
9464boundary. Where boundary lines are not in dispute, the DEP has
9475the authority to determine whether an application for a dock
9485vio lates the rule requirements of c hapter 18 - 21, and whether a
9499proposal would Ðunreasonably infringe upon traditional, common
9506law riparian rightsÑ of adjacent riparian owners. See, e.g. ,
9515Pedicini v. Stuart Yacht Corp . , Case No. 07 - 4116 ( Fla. DOAH
9529Feb. 20, 2008 ; Fla. DEP May 19, 2008 ); Samuels v. Imhoof ,
9541Case No. 03 - 2586 ( Fla. DOAH Feb. 17, 2004 ; Fla. DEP May 28,
95562004 ).
955881 . A minimum 25 - foot setback is required of Petitioner
9570and Commercial Unit A pursuant to rule 18 - 21.004(3)(d).
9580Commercial Unit A has met the set back that is routinely accepted
9592as adequate to avoid a navigational hazard, proposing a 25 - foot
9604setback facing the 144 Property riparian line.
961182 . It is well - established, with regard to the riparian
9623right to build a dock, that:
9629The applicable rule is designed to prevent
9636ÐunreasonableÑ infringements on an upland
9641property owner's riparian rights. See Fla.
9647Admin. Code R. 18 - 21.004(3). However, some
9655infringement will occur and it is the trier -
9664of - fact (the ALJ) who is called upon to
9674weigh the specific facts regarding the
9680impact on riparian rights. See , e.g. , Shore
9687Village Property Owners' Assoc., Inc. v.
9693Fla. Dep't of Envtl. Protection , 824 So.2d
9700208, 210 - 211 (Fla. 4th DCA 2002)(stating
9708that the trial court heard testimony and
9715revie wed evidence to determine the existence
9722of riparian rights and whether those rights
9729included the building of a dock as
9736proposed).
9737Trump Plaza of the Palm Beaches Condo. AssÓn v. Palm Beach Cnty .
9750and DepÓt of Envtl. Prot. , Case No. 08 - 4752, FO at 17 - 18
9765( Fla. DOAH Sept. 24, 2009; Fla. DEP Nov. 6, 2009).
977683 . The proposed Commercial Unit A Dock will not
9786unreasonably restrict or infringe upon Petitioner Ós riparian
9794rights. It does not render the 144 Dock unusable or unsafe,
9805either in its current configuration or as it may be enlarged in
9817the future. In light of the facts and circumstances of this
9828case, any Ðrestrict[ion] or infringe[ment]Ñ on the use of the
9838144 Dock is not unreasonable, does not create a Ðnavigational
9848hazard, Ñ and does not have the effect of preventing reasonable
9859use of the waters in the vicinity of the 144 Dock. See , e.g. ,
9872Rosenblum v. Zimmet and DepÓt of Envtl. Prot. , Case No. 06 - 2859
9885( Fla. DOAH Oct. 23, 2007; Fla. DEP Dec 11, 2007).
989684 . Based on the fin dings of fact and the foregoing
9908conclusions of law, i t is concluded that the proposed Commercial
9919Unit A Dock will not unreasonably restrict or infringe upon
9929Petitioner Ós riparian rights attendant to the 144 Property , and
9939meets the standards established in r ule 18 - 21. 004(3)(c) for
9951issuance of the SSL Authorization .
9957Navigational Hazard
995985 . Unlike the Ðpublic interestÑ navigational standards
9967for obtaining an ERP, which are primarily associated with the
9977use of publicly - used shipping lanes or channels, the
9987Ðnavigational hazardÑ standard for obtaining a SSLL pursuant to
9996rule 18 - 21.004(7), tho ugh not defined, includes unsafe
10006conditions adjacent to docks and boat slips. Pirtle v. Voss and
10017DepÓt of Envtl. Prot. , Case No. 13 - 0515 ( Fla. DOAH Sep t . 23,
100332013; Fla. DEP Dec. 26, 2013). A mere inconvenience does not
10044constitute the type of navigational hazard contemplated by the
10053rule. Woolshlager v. Rockman and DepÓt of Envtl. Prot. , Case
10063No. 06 - 3296 ( Fla. DOAH May 5, 2007; Fla. DEP June 22, 2007).
1007886 . A preponderance of the evidence in this case supports
10089a conclusion that the proposed Commercial U nit A Dock does not
10101unreasonably interfere with PetitionerÓs riparian rights of
10108navigation and does not create a navigational hazard in the
10118vicinity of the 144 Dock or in the Singer Island Channel . Thus,
10131the Applicants have met the standards for issuance of the SSLL
10142Authorization. See Shore Vill. Prop. Owners' Assn . v. Fla.
10152Dep't of Envtl. Prot. , 824 So . 2d 208, 210 - 211 (Fla. 4th
10166DCA 2002).
10168Sufficient Upland Interest
1017187 . Rule 18 - 21.004(3)(b) provides , in pertinent pa rt, that
10183Ð[s]atisfactory evidence of sufficient upland interest is
10190required for activities on sovereignty submerged lands riparian
10198to uplands.Ñ
1020088 . Rule 18 - 21.003(60) provides that:
10208ÐSatisfactory evidence of sufficient upland
10213interestÑ shall be demonstrat ed by
10219documentation, such as . . . condominium,
10226homeowners or similar association documents
10231that clearly demonstrate that the holder has
10238control and interest in the riparian uplands
10245adjacent to the project area and the
10252riparian rights necessary to conduct the
10258proposed activity.
1026089 . Commercial Unit A relies on the rights granted to it
10272under the Declaration, which establishes Commercial Unit AÓs
10280rights to use Buccaneer Condominium property and common
10288elements. Pursuant to Article VIII, Section 8.3 of the
10297Declaration:
10298To the extent permitted by law, any and all
10307riparian rights to add additional dock
10313spaces is hereby reserved, granted and
10319assigned to Unit A and the Owner thereof
10327. . . . Without limiting the foregoing, the
10336Owner of C ommercial Unit A shall have the
10345right, power, and authority, to the extent
10352permitted by law, to construct any
10358additional dock spaces in the waterway
10364contiguous to the Condominium property . . .
10372provided, however, the use thereof shall be
10379deemed to be a nd have been designated and
10388assigned perpetually and exclusively to and
10394as an appurtenance to Commercial Unit A.
1040190 . Commercial Unit A has a sufficient upland interest for
10412the construction of the Commercial Unit A Dock over sovereignty
10422submerged lands .
10425Net Positive Public Benefit
1042991 . Petitioner has argued that the Permit should be denied
10440because the Applicants did not demonstrate that the Commercial
10449Unit A Dock would provide a net positive public benefit as
10460required by rule 1 8 - 21.004(4)(b)2.e. R ule 18 - 21.004(4)(b)2.e.
10472applies only to p rivate residential multi - family docks . The
10484Commercial Unit A Dock is not a private residential multi - family
10496dock . Thus, the Applicants were not required to demonstrate
10506that the permitted project would provide a net po sitive public
10517benefit .
10519BTIITF Approval
1052192 . The DEP in this case exercised its delegated authority
10532to take final agency action on the SSL Authorization , without
10542action by the BTIITF , as an activity for which the DEP has
10554permitting responsibility. § 253.002(2), Fla. Stat.;
10560Fla. Admin. Code R. 18 - 21.0051(2).
1056793 . Rule 18 - 21.0051(2) provides, in pertinent part, that:
10578The Secretary of the Department of
10584Environmental Protection . . . [is]
10590delegated the authority to review and take
10597final agency action on applications to use
10604sovereignty submerged lands when the
10609application involves an activity for which
10615that agency has per mitting responsibility,
10621. . . unless the final agency action is to
10631approve any of the following proposed
10637activities:
10638(a) Docki ng fa cilities with more than
1064650 slips, and additions to existing docking
10653facilities where the number of proposed new
10660slips exceeds 10% of the existing slips and
10668the total number of existing and proposed
10675additional slips exceeds 50;
10679(b) Docking facilities havi ng a preempted
10686area, as defined in Rule 18 - 21.003, F.A.C.,
10695of more than 50,000 square feet, and
10703additions to existing docking facilities
10708where the size of the proposed additional
10715preempted area exceeds 10% of the existing
10722preempted area and the total of ex isting and
10731proposed additional preempted area exceeds
1073650,000 square feet;
10740* * *
10743(e) Applications involving approval of an
10749exception to the maximum cumulative
10754preemption for a private residential multi -
10761family dock or pier in accordance with
10768subparagraph 18 - 21.004(4)(b)2., F.A.C.
10773(emphasis added).
1077594 . The Buccaneer Dock is a Ðprivate residential multi -
10786family dock or pierÑ as defined in rule 18 - 21.003(47),
10797exclusively serving the 18 - unit Buccaneer Condominium.
10805Or iginally constructed in 1958, it is a grandfathered structure.
10815Although the Buccaneer Dock was brought under lease
10823( see rule 18 - 21.002), it is not required to meet the management
10837policies, standards, and criteria standards for multi - family
10846residential doc k facilities pursuant to rule 18 - 21.004(4),
10856including the 40:1 preempted area to shoreline ratio. There is
10866no proposed extension or material alteration of the Buccaneer
10875Condominium Dock.
1087795 . Rule 18 - 21.004(4) (b)2. , which establishes the 40:1
10888rule , does not apply to the Commercial Unit A Dock because the
10900rule does not apply to commercial slips.
1090796 . The combined Buccaneer Condominium Dock and Commercial
10916Unit A Dock will have fewer than 50 slips. The preempted area
10928encompassed by the SSLL , as modi fied , will not exceed 50,000
10940square feet .
1094397 . There was no persuasive evidence that the Buccaneer
10953Condominium Dock and the Commercial Unit A Dock are part of a
10965common plan of development designed to operate as a single dock
10976for the Buccaneer Condominium. The Buccaneer Condominium Dock
10984will remain as dedicated to the owners of Buccaneer Condominium
10994units. The Commercial Unit A Dock , which will be under legally
11005separate ownership, will be a first - come, first - served
11016commercial dock for the primary purpose of allowing transient
11025dockage for patrons of the restaurant on Commercial Unit A.
1103598 . None of the instances that require BTIITF approval,
11045rather than delegated DEP approval, ar e present in this case.
11056Thus, the SSL Authorization was not required to be presented to
11067the BTIITF pursuant to rule 18 - 21.00 5 1 (2) .
11079SSL Authorization Conclusion
1108299 . For the reasons set forth herein, the Applicants met
11093their burden of demonstrating entitlement to SSL Authorization
11101and addressed and countered each of the reasons warranting
11110denial alleged by Petitioner in the Amended Petition and
11119the JPS.
11121Conclusion
11122100 . Petitioner did not meet its burden of ultimate
11132persuasion that the proposed Commercial Unit A Dock, as
11141permitted, will adversely affect the public health, safety, or
11150welfare or the property of others in violation of
11159rule 62 - 330.302(1)(a)1 . , or w i ll adversely affect navigation in
11172violation of rule 62 - 330.302(1)(a)3 .
111791 0 1 . The Applicants met their burden of demonstrating, by
11191a preponderance of the evidence, the proposed Commercial
11199Unit A Dock, as permitted, will not unreasonably interfere
11208with Petitioner Ós riparian rights in violation of rule s 18 -
1122021.004(3)(c) and (d) and 18 - 21.004(7)(f), and will not create a
11232navigational hazard in violation of rule 18 - 21.004(7)(g) . The
11243Applicants further demonstrated, by a preponderance of the
11251evidence, that the proposed Per mit will not violate the
1126140:1 rule established in rule 18 - 2 1.004(4)(b)2 . ; that Commercial
11273Unit A has a sufficient upland interest to support the issuance
11284of the SSL Authorization pursuant to r ule 18 - 21.004(3)(b) ; that
11296Commercial Unit A was not required to demonstrate a net positive
11307public benefit pursuant to rule 18 - 21.004(4)(b)2.e. ; and that
11317the DEP was not required to cede its delegated authority to take
11329final agency action on the SSL Authorization to the BTIITF
11339pursuant to rule 18 - 21.0051(2) .
11346102 . Applying the standards of reasonable assurance to the
11356Findin gs of Fact in this case, it is concluded that reasonable
11368assurances have been provided by the Applicants that the
11377activities to be authorized by the Permit will meet the
11387applicable standards applied by the D EP , including section
11396373.41 4 ; r ule s 62 - 330. 302 , 18 - 2 1 .00 3 , and 18 - 2 1 .004 , and
1141818 - 21.0051 ; and the corresponding provisions of the ERP
11428ApplicantÓs Handbook - Volume I .
11434R ECOMMENDATION
11436Based on the foregoing Findings of Fact and Conclusions of
11446Law , it is RECOMMENDED that the Department of Environmental
11455Protection enter a final order approving the Consolidated
11463Environmental Resource Permit and Recommended Intent to Grant
11471State - owned Submerged Lands Authorization, Permit No. 50 -
114810147856 - 003 - EI to the Applicant s , the Buccaneer Commercial
11493Unit A , care of Benjamin Sharfi, Trustee of the Benjamin Sharfi
11504Trust 2002, and the Buccaneer Condominium Association of Palm
11513Beach Shores, Inc. , subject to the general and specific
11522conditions set forth therein .
11527DONE AND ENTERED this 10th day of January , 201 9 , in
11538Tallahassee, Leon County, Florida.
11542S
11543E. GARY EARLY
11546Administrative Law Judge
11549Division of Administrative Hearings
11553The DeSoto Building
115561230 Apalachee Parkway
11559Tallahassee, Florida 32399 - 3060
11564(850) 488 - 9675
11568Fax Filing (850) 921 - 6847
11574www.doah.state.fl.us
11575Filed with the Clerk of the
11581Division of Administrative Hearings
11585this 10th day of January , 201 9 .
11593ENDNOTE S
115951 / The A.H. has been adopted by reference and is , therefore , a
11608ÐruleÑ in and of itself.
116132 / Petitioner argues that Ð[t]he former T - head/fueling facility
11624will become additional dock space within the multi - family
11634portion of the Buccaneer SSLL, and be used exclusively for
11644multi - family docking. Therefore, the multi - family portion of
11655the lease Î which already exceeds the 40:1 rule Î will expand
11667even further to encompass the area of the former T - head and fuel
11681dock. Ñ To the contrary, the Permit application and drawings
11691indicate that the Buccaneer Condominium will lose the fo rmer
11701T - head, which will instead become the landward terminus of the
11713Commercial Unit A Dock. T he Buccaneer Condominium Dock will not
11724expand and will not materially change in its configuration.
11733Therefore, it does not lose its status as a grandfathered mu lti -
11746family residential dock.
11749COPIES FURNISHED :
11752John W. Wallace, Esquire
11756Lewis, Longman & Walker , P.A.
11761Suite 150
11763245 Riverside Avenue
11766Jacksonville, Florida 32202
11769(eServed)
11770Andrew J. Baumann, Esquire
11774Rachael B. Santana, Esquire
11778Lewis, Longman & Walker, P.A.
11783Suite 1500
11785515 North Flagler Drive
11789West Palm Beach, Florida 33401
11794(eServed)
11795Richard Green, Esquire
11798Lewis, Longman & Walker, P.A.
11803Suite 501 - S
11807100 Second Avenue South
11811St. Petersburg, Florida 33701
11815(eServed)
11816Joshua D. Miron, Esquire
11820Shutts & Bowen, LLP
11824Suite 2100
11826200 East Broward Boulevard
11830Fort Lauderdale, Florida 33301
11834(eServed)
11835Christopher Hamilton, Esquire
11838Deborah Getzoff, Esquire
11841Shutts & Bowen , LLP
118454301 West Boy Scout Boulevard
11850Tampa, Florida 33607
11853(eServed)
11854Jason B. Gonzalez, Esquir e
11859Shutts & Bowen, LLP
11863Suite 804
11865215 South Monroe Street
11869Tallahassee, Florida 32301
11872(eServed)
11873Kirk Sanders White, Esquire
11877Department of Environmental Protection
11881Mail St ation 35
118853900 Commonwealth Boulevard
11888Tallahassee, Florida 32399 - 3000
11893(eServed)
11894Lea Crandall, Agency Clerk
11898Department of Environmental Protection
11902Douglas Building, Mail Station 35
119073900 Commonwealth Boulevard
11910Tallahassee, Florida 32399 - 3000
11915(eServed )
11917Robert A. Williams, General Counsel
11922Department of Environmental Protection
11926Legal Department, Suite 1051 - J
11932Douglas Building, Mail Station 35
119373900 Commonwealth Boulevard
11940Tallahassee, Florida 32399 - 3000
11945(eServed)
11946Noah Valenstein, Secretary
11949Department of Environmental Protection
11953Douglas Building
119553900 Commonwealth Boulevard
11958Tallahassee, Florida 32399 - 3000
11963(eServed)
11964NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
11970All parties have the right to submit written exceptions within
1198015 days from the date of this Recommended Order. Any exceptions
11991to this Recommended Order should be filed with the agency that
12002will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 02/25/2019
- Proceedings: Respondent's, The Bucaneer Commercial Unit A, Care of Benjamin Sharif, Trustee of the Benjamin Sharifi Trust 2002, and Buccaneer Condominium Association of Palm Shores, Inc., Responses to Petitioner's Exceptions to Recommended Order filed.
- PDF:
- Date: 02/25/2019
- Proceedings: Department of Environmental Protection and Board of Trustees of the Internal Improvement Trust Fund's Responses to Petitioner's Exceptions to Recommended Order filed.
- PDF:
- Date: 01/10/2019
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 01/10/2019
- Proceedings: Recommended Order (hearing held Augusrt 14 and 15, 2018). CASE CLOSED.
- PDF:
- Date: 10/15/2018
- Proceedings: Department of Environmental Protection and Board of Trustees of the Internal Improvement Trust Fund's Proposed Recommended Order filed.
- Date: 09/19/2018
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 09/17/2018
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 08/14/2018
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 08/13/2018
- Proceedings: Petitioner Great American Life Insurance Company's Emergency Motion for Continuance of Final Hearing filed.
- PDF:
- Date: 08/10/2018
- Proceedings: Respondents' State of Florida Department of Environmental Protection and the Board of Trustees of the Internal Improvement Trust Fund's Notice of Filing Priviledge Log along with Response to Great American Life Insurance Company's Notice of Taking Deposition Duces Tecum filed.
- Date: 08/09/2018
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 08/09/2018
- Proceedings: Notice of Filing Supplemental Authority in Support of Motion for Continuance filed.
- PDF:
- Date: 08/08/2018
- Proceedings: Respondent, The Buccaneer Condominium Unit A, Care of Benjamin Sharfi, Trustee of the Benjamin Sharfi 2002 Trust's Omnibus Motion in Limine or in the alternative Motion to Strike filed.
- PDF:
- Date: 08/08/2018
- Proceedings: Notice of Telephonic Motion Hearing and Pre-hearing Conference (motion hearing set for August 9, 2018; 11:00 a.m.).
- PDF:
- Date: 08/08/2018
- Proceedings: Respondent, The Buccaneer Condominium Unit A, Care of Benjamin Sharfi, Trustee of the Benjamin Sharfi 2002 Trust, Unopposed Motion to Add Indispensable Party filed.
- PDF:
- Date: 08/08/2018
- Proceedings: Respondents State of Florida Department of Environmental Protection and the Board of Trustees of the Internal Imrpovement Trust Fund Motion to Strike Petitioners Amended Witness Disclosure filed.
- PDF:
- Date: 08/08/2018
- Proceedings: Respondent, The Buccaneer Condominium Unit A, Care of Benjamin Sharfi, Trustee of the Benjamin Sharfi 2002 Trust's Objection to Petitioner, Great American Life Insurance Company's Motion for Continuance of Final Hearing filed.
- PDF:
- Date: 08/07/2018
- Proceedings: Petitioners' Motion to Amend Citations in Their Proposed Recommended Order filed. (Filed in the wrong case.)
- PDF:
- Date: 08/07/2018
- Proceedings: Petitioner, Great American Life Insurance Company's Amended Final Witness Disclosure filed.
- PDF:
- Date: 08/07/2018
- Proceedings: Petitioner Great American Life Insurance Company's Motion for Continuance for Final Hearing filed.
- PDF:
- Date: 08/06/2018
- Proceedings: Notice of Filing Addedum to Environmental Resource Permit and State-Owned Submerged Lands Application/Authorization filed.
- PDF:
- Date: 08/02/2018
- Proceedings: Petitioner, Great American Life Insurance Company's, Emergency Motion for Protective Order filed.
- PDF:
- Date: 08/01/2018
- Proceedings: Respondents State of Florida Department of Environmental Protection and the Board of Trustees of the Internal Improvement Trust Fund Emergency Motion for Protective Order filed.
- PDF:
- Date: 08/01/2018
- Proceedings: Notice of Taking Deposition - Duces Tecum (Monica Sovacool) filed.
- PDF:
- Date: 07/30/2018
- Proceedings: Notice of Taking Telephonic Deposition Duces Tecum (Jack Cox) filed.
- PDF:
- Date: 07/27/2018
- Proceedings: Petitioner, Great American Life Insurance Company's, Motion to Compel Production of John Hook's Duces Tecum Documents filed.
- PDF:
- Date: 07/27/2018
- Proceedings: Respondent's Amended Response to Petitioner's First Request for Production filed.
- PDF:
- Date: 07/27/2018
- Proceedings: Respondent, Benjamin Sharfi, Trustee of the Benjamin Sharfi 2002 Trust's Affirmative Defense filed.
- PDF:
- Date: 07/27/2018
- Proceedings: The Florida Department of Environmental Protection's Responses to Great American Life Insurance Company's Interrogatories filed.
- PDF:
- Date: 07/27/2018
- Proceedings: The Florida Department of Environmental Protection's Response to Respondents' First Request for Production of Documents filed.
- PDF:
- Date: 07/27/2018
- Proceedings: The Florida Department of Environmental Protection's Responses to Great American Life Insurance Company's Requests for Admissions filed.
- PDF:
- Date: 07/27/2018
- Proceedings: Florida Department of Environmental Protection's Privilege Log filed.
- PDF:
- Date: 07/27/2018
- Proceedings: Notice and Certificate of Service of Respondent DEP's First Set of Interrogatories to Petitioner Great American Life Insurance Company, Inc. filed.
- PDF:
- Date: 07/26/2018
- Proceedings: Respondent's Response to Petitioner's First Request for Production filed.
- PDF:
- Date: 07/26/2018
- Proceedings: Respondent's Notice of Serving Answers to Petitioner's First Set of Interrogatories filed.
- PDF:
- Date: 07/23/2018
- Proceedings: Respondents State of Florida Department of Environmental Protection and the Board of Trustees of the Internal Improvement Trust Fund Final Disclosure of Witnesses filed.
- PDF:
- Date: 07/23/2018
- Proceedings: Petitioner, Great American Life Insurance Company's Final Witness Disclosure filed.
- PDF:
- Date: 07/23/2018
- Proceedings: Respondent, Benjamin K. Sharfi, as Trustee of the Benjamin Sharfi 2002 Trust, Final Witness Disclosure filed.
- PDF:
- Date: 07/16/2018
- Proceedings: Respondents' State of Florida Department of Environmental Protection and the Board of Trustees of the Internal Improvement Trust Fund Disclosure of Potential Expert Witnesses filed.
- PDF:
- Date: 07/13/2018
- Proceedings: Petitioner, Great American Life Insurance Company's Expert Witness Disclosure filed.
- PDF:
- Date: 07/13/2018
- Proceedings: Respondent, Benjamin K. Sharfi, as Trustee of the Benjamin Sharfi 2002 Trust, Expert Witness Disclosure filed.
- PDF:
- Date: 06/27/2018
- Proceedings: Petitioner, Great American Life Insurance Company's Request for Copies filed.
- PDF:
- Date: 06/27/2018
- Proceedings: Respondent, Benjamin K. Sharfi, as Trustee of the Benjamin Sharfi 2002 Trust's First Request for Production to Respondent, State of Florida Department of Environmental Protection filed.
- PDF:
- Date: 06/26/2018
- Proceedings: Petitioner, Great American Life Insurance Company's First Requests for Production of Documents to Respondent, Benjamin Sharfi, Trustee of the Benjamin Sharfi Trust 2002 filed.
- PDF:
- Date: 06/26/2018
- Proceedings: Petitioner, Great American Life Insurance Company's First Requests of Admissions to Respondent, Department of Environmental Protection filed.
- PDF:
- Date: 06/26/2018
- Proceedings: Notice of Serving Petitioner, Great American Life Insurance Company's First Set of Interrogatories to Respondent Buccaneer Commerical Unit A, Care of Benjamin Sharfi, Trustee of the Benjamin Sharfi Trust 2002 filed.
- PDF:
- Date: 06/26/2018
- Proceedings: Notice of Serving Petitioner, Great American Life Insurance Company's First Set of Interrogatories to Respondent the Florida Department of Environmental Protection and the Board of Trustees of the Internal Improvement Trust Fund filed.
- PDF:
- Date: 06/05/2018
- Proceedings: Respondent's Motion to Compel Court Ordered Mediation and Briefly Stay Final Hearing Pending Mediation filed.
- PDF:
- Date: 05/21/2018
- Proceedings: Amended Cross-Notice of Taking Deposition (Jason Andreotta) filed.
- PDF:
- Date: 05/18/2018
- Proceedings: Respondents' State of Florida Department of Environmental Protection and the Board of Trustees of the Internal Improvement Trust Fund Disclosure of Potential Expert Witnesses filed. FILED IN ERROR.
- PDF:
- Date: 05/14/2018
- Proceedings: Notice of Serving Petitioner, Great American Life Insurance Company's Answers to Respondent Buccaneer Commercial Unit A, Care of Benjamin Sharfi, Trustee of the Benjamin Sharfi Trust 2002's First Set of Interrogatories filed.
- PDF:
- Date: 05/14/2018
- Proceedings: Petitioner Great American Life Insurance Company's Response to Respondent Buccaneer Commercial Unit A, Care of Benjamin Sharfi, Trustee of the Benjamin Sharfi Trust 2002's First Request for Admissions filed.
- PDF:
- Date: 05/14/2018
- Proceedings: Petitioner Great American Life Insurance Company's Response to Respondent Buccaneer Commercial Unit A, Care of Benjamin Sharfi, Trustee of the Benjamin Sharfi Trust 2002's First Request for Production filed.
- PDF:
- Date: 05/04/2018
- Proceedings: Notice of Taking Deposition - Duces Tecum (Richard Bright) filed.
- PDF:
- Date: 05/04/2018
- Proceedings: Notice of Taking Video Deposition for Use at Trial--Subpoena Duces Tecum (F. Cohen) filed.
- PDF:
- Date: 04/25/2018
- Proceedings: Notice of Taking Deposition Duces Tecum (Charles Isiminger) filed.
- PDF:
- Date: 04/24/2018
- Proceedings: Notice of Taking Deposition - Subpoena Duces Tecum (John Hook) filed.
- PDF:
- Date: 04/23/2018
- Proceedings: Notice of Taking Deposition - Duces Tecum (Benjamin Sharfi) filed.
- PDF:
- Date: 04/20/2018
- Proceedings: Notice of Taking Deposition - Duces Tecum (Capt John Adams) filed.
- PDF:
- Date: 04/13/2018
- Proceedings: Respondent's First Request for Admissions to Petitioner, Great American Life Insurance Company filed.
- PDF:
- Date: 04/13/2018
- Proceedings: Notice of Service of Respondents' First Set of Interrogatories to Petitioner, Great American Life Insurance Company filed.
- PDF:
- Date: 04/13/2018
- Proceedings: Respondent's First Request for Production to Petitioner, Great American Life Insurance Company filed.
- PDF:
- Date: 04/04/2018
- Proceedings: Notice of Hearing (hearing set for August 13 through 16, 2018; 9:30 a.m.; West Palm Beach, FL).
- PDF:
- Date: 03/09/2018
- Proceedings: Joint Motion for Extension of Time to File Response to Initial Order filed.
- PDF:
- Date: 03/07/2018
- Proceedings: Petitioner, Great American Life Insurance Company, Inc.'s Amended Petition for Administrative Hearing filed.
Case Information
- Judge:
- E. GARY EARLY
- Date Filed:
- 03/05/2018
- Date Assignment:
- 03/08/2018
- Last Docket Entry:
- 02/25/2019
- Location:
- West Palm Beach, Florida
- District:
- Southern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Andrew J. Baumann, Esquire
Suite 1500
515 North Flagler Drive
West Palm Beach, FL 33401
(561) 640-0820 -
Jason B. Gonzalez, Esquire
Suite 804
215 South Monroe Street
Tallahassee, FL 32301
(850) 521-0600 -
Christopher Hamilton, Esquire
4301 West Boy Scout Boulevard
Tampa, FL 33607
(813) 227-8126 -
Joshua D. Miron, Esquire
200 East Broward Boulevard
Fort Lauderdale, FL 33301
(954) 847-3866 -
Mary Lou Richman
142 Lake Drive
Palm Beach Shores, FL 33404
(407) 842-1620 -
Rachael B. Santana, Esquire
Suite 1500
515 North Flagler Drive
West Palm Beach, FL 33401
(561) 640-0820 -
John W. Wallace, Esquire
Suite 150
245 Riverside Avenue
Jacksonville, FL 32202
(904) 353-6410 -
Kirk Sanders White, Esquire
Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, FL 323993000
(850) 245-2258 -
Richard Green, Esquire
Suite 501-S
100 Second Avenue South
St. Petersburg, FL 33701
(727) 245-0820 -
Ashley Cox, Esquire
Address of Record -
Kirk S White, Esquire
Address of Record -
Richard P. Green, Esquire
Address of Record