18-002664 Marinemax, Inc. vs. Larry Lynn And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, March 28, 2019.

Summary: Mr. Lynn's installation of nine pilings off of his residential property does not create minimal or insignificant individual or cumulative impacts on the water resources, and, therefore, qualify for an exemption from an environmental resource permit.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARINEMAX, INC.,

Petitioner,

vs. Case No. 18 - 2664

LARRY LYNN AND DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondents.

_______________________________/

RECOMMENDED ORDER

On Janua ry 10, 2019, Administrative Law Judge Robert J.

Telfer III, of the Florida Division of Administrative Hearings

(Division), conducted a duly - noticed hearing in Tallahassee and

Fort Myers, Florida, by video teleconference, pursuant to

sections 120.569 and 12 0.57(1), Florida Statutes (2018).

APPEARANCES

For Petitioner MarineMax , Inc. :

Amelia A. Savage, Esquire

Richard S. Brightman, Esq uire

Felicia L. Kitzmiller, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, F lorida 32314 - 6526

For Re spondent Larry Lynn :

Larry Kenneth Lynn, p ro s e

111 Placid Drive

Fort Myers, Florida 33919

For Respondent Department o f Environmental Protection :

Lorraine M. Novak, Esq uire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth B oulevard

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to determine in this matter is whether Respondent

Department of Environmental Protection (DEP) properly issued its

proposed verification of an Environmental Resource Permit (ERP)

exemp tion , dated March 23, 2018, for the installation of nine

pilings off of Respondent Larry LynnÓs residential property, in

the direction of Petitioner MarineMax, Inc.Ós commercial property

(MarineMax), pursuant to section 373 .406(6), Florida Statutes ,

common ly known as the Ðde minimusÑ exemption.

PRELIMINARY STATEMENT

On March 8, 2018, Mr. Lynn applied for, and on March 23,

2018, DEP issued, a verification of exemption from obtaining an

ERP for the installation of nine pilings off his residential

propertyÓs s eawall. On April 13, 2018, MarineMax timely filed a

Petition for Formal Administrative Hearing with DEP, challenging

the issuance of verification of exemption. MarineMax ,

thereafter , filed a Motion to Amend Petition for Administrative

Hearing, dated June 14, 2018, and the previous Administrative Law

Judge (ALJ) assigned to this matter thereafter entered an Order

Granting PetitionerÓs Motion to Amend Petition for Formal

Administrative Hearing on June 15, 2018, accepting the Amended

Petition for Formal Admi nistrative Hearing as establishing the

issues to be tried in the instant proceeding.

On June 18, 2018, MarineMax filed an Unopposed Motion to

Continue Final Hearing. On July 3, 2018, the undersigned granted

the Unopposed Motion to Con tinue Final Hearing and scheduled the

final hearing for October 10 and 11, 2018. The parties filed a

Joint Pre - hearing Stipulation on October 3, 2018. However,

because of Hurricane Michael, the undersigned and parties

rescheduled the final hearing for January 10, 2019. Th e parties

submitted an Amended Joint Pre - hearing Stipulation on January 3,

2019.

Pursuant to a Second Notice of Hearing by Video

Teleconference, the undersigned conducted a final hearing on

January 10, 2019, by video teleconference with locations in

Tallah assee and Fort Myers, Florida. The parties offered the

following exhibits into evidence, which the undersigned admitted:

Joint Exhibits 1 through 7; MarineMax Exhibits P1 through P 10;

and DEP Exhibits DEP1 and DEP2. 1/

MarineMax presented the testimony of Sam Lowrey, its

corporat e vice president of real estate; and Captain Ralph S.

Robinson III, a U.S. Coast Guard - licensed boat captain , who the

undersigned accepted as an expert in marine navigation.

Respondents DEP and Mr. Lynn presented the testimony of

Megan Mills, the environmental specialist and program

administrator with DEPÓs South District Office, and Mr. Lynn.

The one - volume T ranscript of this final hearing was filed

with the Division on February 26, 2019. MarineMax, and DEP and

Mr. Lynn (jointly ), timely filed proposed recommended orders that

the undersigned considered in the preparation of this Recommended

Order.

All statutory references are to the 2018 codification of the

Florida Statutes unless otherwise indicated.

FINDING S OF FACT

1. Mr. Ly nn has owned the real property located at

111 Placid Drive, Fort Myers, Florida , since 1994. Mr. LynnÓs

residential property is a corner lot that fronts a canal on two

of the four sides of his property, and also contains his home.

2. MarineMax is a nati onal boat dealer with approximately

65 locations throughout the United States and the British Virgin

Islands. MarineMax has approximately 16 locations in Florida.

3. MarineMax, through subsidiary companies, acquired the

property at 14030 McGregor Bouleva rd, Fort Myers, Florida, in

December 2014 (MarineMax Property). Prior to MarineMaxÓs

acquisition, this property had been an active marina for more

than 30 years. MarineMax continues to operate this property as a

marina.

4. The MarineMax Property is a 26 - acre contiguous parcel

that runs north - south and that is surrounded by canals and a

larger waterway that connects to the Gulf of Mexico. The

ÐnorthernÑ parcel of the MarineMax Property is surrounded by two

canals and the larger waterway that connects t o the Gulf of

Mexico. The ÐsouthernÑ parcel is a separate peninsula that,

while contiguous to the northern parcel, is surrounded by a canal

that it shares with the northern parcel, along with another canal

that separates it from residential properties.

5. Mr. LynnÓs property is located directly south of the

northern parcel of the MarineMax Property, and the canal that

runs east - west. As his property is a corner lot, it also fronts

an eastern canal that is directly across from the southern parcel

of the M arineMax Property.

6. The eastern canal described above also serves as a

border between MarineMax and a residential community that

includes Mr. LynnÓs residential property.

7. Mr. Lynn has moored a boat to an existing dock on the

eastern canal described in paragraphs 5 and 6 for many years.

8. MarineMax holds ERPs for the business it conducts at its

MarineMax Property, including the canal between the northern

parcel of the MarineMax Property and Mr. LynnÓs property. For

example, these ERPs permit: (a) the docking of boats up to 85

feet in length with a 23 - foot beam; (b) boat slips up to 70 feet

in length; (c) up to 480 boats on the MarineMax Property; and

( d ) a boat lift and boat storage barn (located on the southern

parcel).

9. The MarineMax Property also contains a fueling facility

that is available for internal and public use. It is located on

the northern parcel of the MarineMax Property, directly across

the east - west canal from Mr. LynnÓs property. The prior owner of

the marina constructed this f ueling facility prior to 2003.

Request for Verification of Exemption from an ERP

10. Mr. Lynn testified that after MarineMax took over the

property from the prior owner, he noticed larger boats moving

through the canal that separates his property from th e MarineMax

Property. Concerned about the potential impact to his property,

including his personal boat, Mr. Lynn contracted with Hickox

Brothers Marine, Inc. (Hi ckox), to erect pilings off of his

property in this canal. 2/

11. On March 8, 2018, Hic k ox, o n behalf of Mr. Lynn,

submitted electronically a Request for Verification of Exemption

from an Environmental Resource Permit to DEP. The ÐProject

DescriptionÑ stated, ÐINSTALL NINE 10 INCH DIAMETER PILINGS AS

PER ATTACHED DRAWING FOR SAFETY OF HOMEOWNERÓS BOAT.Ñ The

attached drawing for this project depicted the installation of

these nine pilings 16 and 1/2 feet from Mr. LynnÓs seawall,

spaced 15 feet apart.

12. On March 23, 2018, DEP approved Mr. LynnÓs Request for

Verification of Exemption from an Env ironmental Resource Permit,

stating that the activity , as proposed , was e xempt under

section 373.406(6) from the need to obtain a regulatory perm it

under p art IV of chapter 373 . The Request for Verification of

Exemption from an Environmental Resource Per mit further stated:

This determination is made because the

activity, in consideration of its type, size,

nature, location, use and operation, is

expected to have only minimal or

insignificant or cumulative adverse impacts

on the water resources.

13. The Request for Verification of Exemption from an

Environmental Resource Permit further stated that DEP did not

require further authorization under chapter 253, Florida

Statutes, to engage in proprietary review of the activity because

it was not to take place on sovereign submerged lands. The

Request for Verification of Exemption from an Environmental

Resource Permit also stated that DEP approved an authorization

pursuant to the State Programmatic General Permit V, which

precluded the need for Mr. Lynn to seek a separate permit from

the U.S. Army Corps of Engineers.

14. Megan Mills, the environmental specialist and program

administrator with DEPÓs South District Office, testified that

DEPÓs granting of Mr. LynnÓs Request for Verification of

Exemption from an E nvironmental Resource Permit was routine, and

that his Request for Verification of Exemption from an

Environmental Resource Permit met the statutory criteria.

15. After DEP granted the Request for Verification of

Exemption from an Environmental Resource P ermit , Hic k ox, on

behalf of Mr. Lynn, installed the nine pilings in the canal at

various distances approximately 19 feet from Mr. LynnÓs seawall

and in the canal that divides Mr. LynnÓs property from the

MarineMax Property (and the fueling facility). 3/

16. MarineMax timely challenged DEPÓs Request for

Verification of Exemption from an Environmental Resource Permit .

Impact on Water Resources

17. MarineMax presented the testimony of Sam Lowrey, its

corporate vice president of real estate, who had detailed

k nowledge of the layout of the MarineMax Property.

18. Mr. Lowrey testified that the canal between the

MarineMax Property and Mr. LynnÓs residential property is active

with boating activity, noting that MarineMaxÓs ERP allows up to

480 vessels on - site. With the installation of the pilings, he

testified that he was concerned that MarineMax customers Ðwill be

uncomfortable navigating their boats through this portion of the

canal[,]Ñ which would be detrimental to Marin e MaxÓs business.

19. Mr. Lowery testifi ed that he had no personal knowledge

of whether MarineMax has lost any business since the installation

of the pilings.

20. MarineMax also presented the testimony of Captain

Ralph S. Robinson III, who the undersigned accepted as an expert

in marine naviga tion, without objection. 4/ Captain Robinson has

been a boat captain , licensed by the U.S. Coast Guard , since

1991. He has extensive experience captaining a variety of

vessels throughout the United States and the Bahamas. He is an

independent contractor and works for MarineMax and other marine

businesses. Captain Robinson is also a retired law enforcement

officer.

21. Captain Robinson testified that he was familiar with

the waterways surrounding the MarineMax Property, as he has

captained boats in those waterways several times a month for the

past 15 years.

22. Captain Robinson testified that he has observed a

number of boats with varying lengths and beams navigate these

waterways, and particularly, the canal between the MarineMax

Property and Mr. Lyn nÓs property. Captain Robinson estimated

that the beam of these boats range from eight to 22 feet. He

also testified that the most common boats h ave a beam between

eight and 10 feet.

23. Captain RobinsonÓs first experience with the pilings in

the canal occurred in April 2018, when he was captaining a 42 -

foot boat through the canal. He testified that an 85 - foot boat

was fueling on the fuel dock, and when he cleared the fueling

boat and pilings, he had approximately one and a half feet on

each side of his boat. He testified that Ð[i]t was very

concerning.Ñ

24. Captain Robinson testified that since this experience

in April 2018, he calls ahead to MarineMax to determine the

number and size of boats in the portion of this canal that

contains the pilings.

25 . On behalf of MarineMax, in December 2018, Captain

Robinson directed the recording of himself captaining a 59 - foot

Sea Ray boat with an approximately 15 - to 16 - foot beam through

the canal separating the MarineMax Property and Mr. LynnÓs

residential prope rty, with another boat of the same size parked

at MarineMaxÓs fueling dock. 5/ Captain Robinson testified that

these two boats were typical of the boats that he would operate

at the MarineMax Property and surrounding waterway.

26. The video demonstration, and Captain RobinsonÓs

commentary, showed that when he passed through the canal between

the fuel dock (with the boat docked) and Mr. LynnÓs residential

property (with the pilings), there was approximately four to five

feet on either side of his boat. Cap tain Robinson stated:

This is not an ideal situation for a boat

operator. Yes, it can be done. Should it be

done? Um, I wasnÓt happy or comfortable in

this depiction.

27. Captain Robinson testified that his Ðpersonal comfort

zoneÑ of distance between a boat he captains and obstacles in the

water is five or six feet.

28. Ultimately, Captain Robinson testified that he believed

the pilings in the canal between the MarineMax Property and

Mr. LynnÓs property were a Ðnavigational hazard.Ñ Specifically,

Ca ptain Robinson stated:

Q : In your expert opinion, has Mr. LynnÓs

pilings had more than a minimal, or

insignificant impact on navigation in the

canal, in which they are placed?

A : I believe theyÓre a navigational hazard.

The impact, to me personally, an d IÓm sure

thereÓs other yacht captains that move their

boat through there, or a yacht owner, not a

licensed captain, um, that has to take a

different approach in their operation and

diligence, um, taking due care that they can

safely go through. ItÓs bee n an impact.

Q: Is a navigational hazard a higher

standard for you as a boat captain, being

more than minimal or insignificant?

A: Yes. A navigational hazard is, in my

opinion, something that its position could be

a low bridge or something hanging off a

bridge, a bridge being painted, it could be a

marker, it could be a sandbar, anything that

is going to cause harm to a boat by its

position of normal operation that would cause

injury to your boat, or harm an occupant or

driver of that boat.

29. Ms. M ills, the environmental specialist and program

administrator with DEPÓs South District Office, testified that

after MarineMax filed the instant Petition, she and another DEP

employee visited Mr. LynnÓs residential property. Although not

qualified as an ex pert in marine navigation, Ms. Mills testified

that, even after observing the placement of the pilings and the

boating activity the day she visited, the pilings qualified for

an exemption from the ERP. 6/

CONCLUSIONS OF LAW

Jurisdiction

30. The Division h as jurisdiction over the subject

matter and the parties to this proceeding in accordance with

sections 120.569 and 120.57(1), Florida Statutes.

Standing

31. Section 120.52(13) defines a Ðparty,Ñ in pertinent

part, as a person Ðwhose substantial interests will be affected

by proposed agency action, and who makes an appearance as a

party.Ñ Section 120.569(1) further provides, in pertinent part,

that Ð[t]he provisions of this section apply in all proceedings

in which the substantial interests of a party are determined by

an agency.Ñ

32. In Agrico Chemical Corporation v. Department of

Environmental Regulation , 406 So. 2d 478, 482 (Fla. 2d DCA 1981),

the court held:

We believe that before one can be considered

to have a substantial interest in the outcome

of the proceeding, he must show 1) that he

will suffer an injury in fact which is of

sufficient immediacy to entitle him to a

section 120.57 hearing and 2) that his

substantial injury is of a type or nature

which the proceeding is designed to protect.

The fi rst aspect of the test deals with the

degree of injury. The second deals with the

nature of the injury.

33. Although DEP and Mr. Lynn disputed whether MarineMax

has standing to bring the instant administrative law challenge in

the Amended Joint Pre - hear ing Statement, neither presented

further argument at the final hearing, or in their Joint Proposed

Recommended Order, concerning MarineMaxÓs standing.

34. The undersigned concludes that MarineMax has standing

to bring this administrative challenge. Marin eMax has a

substantial interest in the safe operation of boats into and out

of the MarineMax Property. It has sufficiently alleged that the

pilings in the canal between the MarineMax Property and

Mr. LynnÓs property could potentially result in a navigati onal

hazard.

Nature of the Proceeding

35. This is a de novo proceeding, intended to formulate

final agency action, and not to review action taken earlier and

preliminarily. See Young v. DepÓt of Cmty. Aff. , 625 So. 2d 831,

833 (Fla. 1993); Hamilton Cnty. Bd. of Cnty. CommÓrs v. DepÓt of

En v tl. Reg. , 587 So. 2d 1378, 1387 (Fla. 1st DCA 1991); and

McDonald v. DepÓt of Banking & Fin. , 587 So. 2d 569, 584 (Fla.

1st DCA 1977).

36. DEP approved Mr. LynnÓs Request for Verification

of Exemption from an Environm ental Resource Permit pursuant

to chapter 373, Florida Statutes. Pursuant to

section 120.569(2)(p), the burden of proof is as follows:

For any proceeding arising under chapter 373,

chapter 378, or chapter 403, if a

nonapplicant petitions as a third part y to

challenge an agencyÓs issuance of a license,

permit, or conceptual approval, the order of

presentation in the proceeding is for the

permit applicant to present a prima facie

case demonstrating entitlement to the

license, permit, or conceptual approval ,

followed by the agency. This demonstration

may be made by entering into evidence the

application and relevant material submitted

to the agency in support of the application,

and the agencyÓs staff report or notice of

intent to approve the permit, licens e, or

conceptual approval. Subsequent to the

presentation of the applicantÓs prima facie

case and any direct evidence submitted by the

agency, the petitioner initiating the action

challenging the issuance of the permit,

license, or conceptual approval has the

burden of ultimate persuasion and has the

burden of going forward to prove the case in

opposition to the license, permit, or

conceptual approval through the presentation

of competent and substantial evidence.

37. In Pirtle v. Voss , Case No. 13 - 0515 (Fla. DOAH

Sept. 27, 2013; Fla. DEP Dec. 26, 2013), the ALJ applied

section 120.569(2)(p)Ós burden - shifting requirements to an

application for an exemption from an ERP to install mooring

pilings, concluding that the DEPÓs wri tten determination is a

licen sur e under chapter 373. The undersigned agrees that

section 120.569(2)(p) applies to this proceeding, and conducted

the final hearing in accordance with this statutory requirement.

Analysis

38. Mr. Lynn satisfied his prima facie case of entitlement

to t he Verification of Exemption from an Environmental Resource

Permit by entering into evidence the complete electronic

s ubmission Request for Verification of Exemption from an

Environmental Resource Permit, dated March 8, 2018, and DEPÓs

written approval of his Request for Verification of Exemption

from an Environmental Resource Permit, dated March 23, 2018.

Additionally, Mr. Lynn and DEP presented the testimony of

Mr. Lynn and Ms. Mills.

39. With Mr. Lynn having made his prima facie case, the

burden of ultimate persuasion falls to MarineMax to prove its

case in opposition to the approval of the Request for

Verification of Exemption from an ERP by a preponderance of the

competent and substantial evidence, and thereby prove that the

pilings in question are more than a minimal impact on navigation .

40. DEP issued the approval of Mr. LynnÓs Request

for Verification of Exemption from an ERP pursuant to

section 373.406(6), also known as the Ðde minimusÑ exemption,

which provides:

Any district of the departme nt may exempt

from regulation under this part those

activities that the district or department

determines will have only minimal or

insignificant individual or adverse impacts

on the water resources of the district. The

district and the department are aut horized to

determine, on a case - by - case basis, whether a

specific activity comes within this

exemption. Requests to qualify for this

exemption shall be submitted in writing to

the district or department, and such

activities shall not be commenced without a

written determination from the district or

department confirming that the activity

qualifies for the exemption.

41. Section 403.813(1)(b) , Florida Statutes, explain s the

criteria for an activity that is exempt from the need t o obtain

an ERP under p art IV of chapter 373. Section 403.813(1)(b)

states:

(1) A permit is not required under this

chapter, chapter 373, chapter 61 - 691, Laws of

Florida, or chapter 25214 or chapter 25270,

1949, Laws of Florida, for activities

associated with the following types o f

projects; however, except as otherwise

provided in this subsection, this subsection

does not relieve an applicant from any

requirement to obtain permission to use or

occupy lands owned by the Board of Trustees

of the Internal Improvement Trust Fund or a

water management district in its governmental

or proprietary capacity or from complying

with applicable local pollution control

programs authorized under this chapter or

other requirements of county and municipal

governments:

* * *

(b) The installatio n and repair of mooring

pilings and dolphins associated with private

docking facilities or piers and the

installation of private docks, piers and

recreational docking facilities, or piers and

recreational docking facilities of local

governmental entities w hen the local

governmental entityÓs activities will not

take place in any manatee habitat, any of

which docks:

1. Has 500 square feet or less of over - water

surface area for a dock which is located in

an area designated as Outstanding Florida

Waters or 1, 000 square feet or less of over -

water surface area for a dock which is

located in an area which is not designated as

Outstanding Florida Waters;

2. Is constructed on or held in place by

pilings or is a floating dock which is

constructed so as not to invo lve filling or

dredging other than that necessary to install

the pilings;

3. Shall not substantially impede the flow

of water or create a navigational hazard;

4. Is used for recreational, noncommercial

activities associated with the mooring or

storage of boats and boat paraphernalia; and

5. Is the sole dock constructed pursuant to

this exemption as measured along the

shoreline for a distance of 65 feet, unless

the parcel of land or individual lot as

platted is less than 65 feet in length along

the sho reline, in which case there may be one

exempt dock allowed per parcel or lot.

Nothing in this paragraph shall prohibit the

department from taking appropriate

enforcement action pursuant to this chapter

to abate or prohibit any activity otherwise

exempt fr om permitting pursuant to this

paragraph if the department can demonstrate

that the exempted activity has caused water

pollution in violation of this chapter.

42. MarineMax contends in its Proposed Recommended Order

that Ðnavigational hazardÑ is not the applicable standard for its

challenge, and that instead, the undersigned should apply the

Ðminimal or insignificant individual or cumulative adverse

impacts on the water resourcesÑ standard enunciated in

section 373.406(6). According to MarineMax, DEPÓs previous

interpretations of equating Ðminimal or insignificant individual

or cumulative impacts on the water resourcesÑ with the

Ðnavigational hazardÑ standard is not entitled to deference by

the undersigned, see A rt . V, § 21, Fla. Const., is inconsistent

with Pirtle , and would constitute an unadopted rule.

43. The undersigned notes that MarineMaxÓs expert, Captain

Robinson, when asked whether the pilings at issue have Ðminimal

or insignificant individual or cumulative impacts on the water

resources,Ñ inst ead opined that they constitute a Ðnavigational

hazard.Ñ

44. The undersigned further notes that

section 403.813(1)(b)3. specifically incorporates the

Ðnavigational hazardÑ prohibition as a criteria for DEP to

consider in determining whether an activity, such as the

installation of mooring pilings, is exempt from an ERP.

45. However, the undersigned also notes that DEPÓs written

approval of Mr. LynnÓs Request for Verification of Exemption from

an Environmental Resource Permit specifically states that DEPÓ s

determination is pursuant to section 373.406(6) and Ðis made

because the activity, in consideration of its type, size, nature,

location, use and operation, is expected to have only minimal or

insignificant individual or cumulative adverse impacts on the

water resources.Ñ

46. The undersigned concludes that MarineMax did not

establish, by a preponderance of the evidence, that the pilings

at issue have a significant impact on navigation. The gravamen

of Captain RobinsonÓs testimony was that the location of the

pilings were not ideal, not within his Ðpersonal comfort zone,Ñ

that he was not Ðhappy or comfortableÑ with the pilings, and

would require him, or other boat operators, to take a Ðdifferent

approach in their operation and diligence.Ñ Captain Robinson

also opined that, when he captained the 59 - foot Sea Ray boat with

a 15 - to 16 - foot beam through the canal, with another boat of the

same size parked at MarineMaxÓs fueling dock, there was

approximately four to five feet on either side of the boat, but

tha t he would prefer five or six feet on either side.

47. Pirtle is distinguishable and does not provide support

for MarineMaxÓs position. In Pirtle , the closest distance

between the T - shaped end of a dock (which operated as a marina)

and the nearest moorin g piling (that was the subject of an

exempti on from an ERP) was about eight and a half feet, meaning

that only boats with a beam less than eight and a half feet could

pass this point. Further, after DEP issued the authorization for

exemption, it conducted a site inspection. During this site

inspection, DEP employees had difficulty piloting their boat into

and out of the slips on the T - shaped end of the dock, and had to

be assisted by other DEP employees. Additionally, the ALJ found

that marina ownerÓs ab ility to operate his marina was

substantially impaired by the pilings.

48. In contrast, Mr. LynnÓs pilings, while being, at most,

an inconvenience to operators of larger boats, causing MarineMax

customers to exercise caution during ingress and egress thro ugh

the canal separating the MarineMax Property and Mr. LynnÓs

property, and invading a distinguished and credible boat

captainÓs Ðpersonal comfort zone,Ñ do not constitute the level of

adverse impacts that the ALJ considered in Pirtle . Additionally,

Mari neMax presented no direct evidence of substantial impairment

of its ability to operate its marina as a result of Mr. LynnÓs

pilings.

49. Further, the undersigned concludes that Mr. LynnÓs

pilings do not constitute a navigational hazard, as an

inconvenienc e does not constitute a navigational hazard. See

Shanosky v. Town of Ft. Myers Beach , Case No. 18 - 1940 ( Fla. DOAH

Nov. 2 0, 2018, Fla. DEP Jan. 2, 2019) (ÐWhile it may create an

inconvenience for Petitioners, or cause them to be more cautious

during ingres s and egress from their docks, the new dock will not

create a navigational hazard.Ñ); Woolshlager v. Rockman , Case

No. 06 - 3296 ( Fla. DOAH May 7 , 2007, Fla. DEP June 21, 2007) (Ðmere

inconvenience does not constitute the type of navigational hazard

contempla ted by the rule.Ñ); Scully v. Patterson , Case No. 05 -

0058 ( Fla. DOAH April 14, 2005, Fla. DEP May 12, 2005).

50. The undersigned further concludes that Mr. Lynn met his

burden and showed, by a preponderance of the evidence, that the

pilings met the criter ia set forth in section 373.406(6), and are

therefore exempt from the need to obtain an ERP.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, the undersigned recommends that DEP enter a final order

dismissing MarineMaxÓs chall enge to the determination that

Mr. LynnÓs pilings qualify for an exemption from an environmental

resources permit pursuant to its March 23, 2018 , approval of

Mr. LynnÓs Request for Verification of Exemption from an

Environmental Resources Permit.

DONE AN D ENTERED this 28th day of March, 2019 , in

Tallahassee, Leon County, Florida.

S

ROBERT J. TELFER III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 28th day of March, 2019 .

ENDNOTE S

1/ Mr. Lynn also sought to introduce a recent ly conducted survey

of hi s property at the final hearing. The undersigned declined

to admit this document, as it was not disclosed to the other

parties prior to the final hearing.

2/ Mr. Lynn testified that, after preliminary discussions with

representatives from MarineMax abou t these concerns, MarineMax

erected signs in the canal to direct boats to turn around in

other areas for safety purposes.

3/ At the final hearing, Ms. Mills testified that while DEPÓs

Verification was for installation of the pilings 16 1/2 feet

off of M r. LynnÓs property, her opinion would not change if

Mr. LynnÓs Request for Verification of Exemption from an

Environmental Resource Permit requested that the pilings be

placed 19 feet off his property. Ms. Mills stated that ÐitÓs

common for differences t o exist between plans and reality.

Things get installed slightly off based on installation

techniques and site conditions.Ñ She further testified, Ðafter

reviewing the site conditions that the activity still qualifies

for the exemption granted.Ñ

4/ Cap tain Robinson was the only expert witness to testify at the

final hearing.

5/ In addition to a video recording of Captain Robinson on the

boat for this presentation, Captain Robinson also utilized a

drone, operated by another person, which provided an ov erhead

video recording of this demonstration.

6/ Ms. Mills also explained DEPÓs process in concluding that

Mr. LynnÓs pilings project qualified for federal authorization

pursuant to the State Programmatic General Permit V (SPGP).

Although the parties, in their Amended Joint Pre - hearing

Stipulation, agreed that the pilings are not located in sovereign

submerged lands, and MarineMax and DEP agreed that the 25 - percent

rule with regard to encroachment in a navigable waterway as set

forth in Florida Administ rative Code C hapter 18 - 21, did not apply

to this case, the undersigned finds Ms. MillsÓs testimony

concerning SPGP authorization, which included an analysis of the

25 - percent rule, to be relevant to DEPÓs granting of the

exemption.

COPIES FURNISHED:

Ric hard S. Brightman, Esquire

Hopping, Green and Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

(eServed)

Larry Kenneth Lynn

111 Placid Drive

Fort Myers, Florida 33919

(eServed)

Lorraine Marie Novak, Esquire

Department of Environmental Protect ion

Mail St ation 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Amelia A. Savage, Esquire

Hopping, Green and Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

(eServed)

Felicia L. Kitzmiller, Esquire

Hopping Green & Sa ms, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

(eServed)

Lea Crandall, Agency C lerk

Department of Environmental Protection

Douglas Building, Mail St ation 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Noah Valenstei n, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Justin G. Wolfe, Interim General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Dou glas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.