88-002058 Fred Roth vs. Department Of Natural Resources Status: Closed Recommended Order on Monday, October 31, 1988.

Summary: Corrective action required where dock constructed over sovereign submerged land without obtaining required lease and without obtaining permit

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED ROTH, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2058

)

DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on August 24, 1988,

in Key West, Florida.

Petitioner Fred Roth was represented by David L. Manz, Esquire, Marathon,

Florida; and Respondent Department of Natural Resources was represented by Ross

S. Burnainan, Esquire, Tallahassee, Florida.

On March 17, 1988, Respondent issued a Notice of Violation and Order for

Corrective Action alleging that Petitioned was engaged in the unauthorized use

of sovereignty submerged lands adjacent to Fat Deer Key, Monroe County, Florida,

and that Petitioner had damaged, and was damaging, those lands. Petitioned

timely requested a formal hearing on the allegations contained within that

Notice of Violation and Order for Corrective Action. Accordingly, the issue for

determination herein is whether Petitioner is guilty of those allegations, and,

if so, what action should be taken against Petitioner, if any.

Petitioner testified on his own behalf and presented the testimony of

George Lawrence. Respondent presented the testimony of the Petitioner, Herbert

Grant Gelhardt IV, and James M. Marx. Additionally, Respondent's Exhibits

numbered 1-5 and 7-15 were admitted in evidence.

Although Petitioner requested and was granted leave to take and file the

deposition of Peter Jones after the conclusion of the final hearing, Petitioner

failed to do so.

Although both parties requested and were granted leave to file proposed

findings of fact in the form of proposed recommended orders, only Respondent did

so. Respondent's proposed findings of fact numbered 1-17 have been adopted in

substance in this Recommended Order.

FINDINGS OF FACT

1. Sunset Company of Wilton, Incorporated, is the record title owner of a

parcel of real property in Government Lot 1, Section 5, Township 66 South, Range

33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida.

2. A portion of that parcel has been conveyed by Sunset Company to

Whaler's Plaza, Incorporated, although that deed may not have been recorded.

3. Petitioner Fred Roth owns and controls both corporations and exerts

ownership and control over the entire parcel.

4. The submerged lands in Tarpon Creek which are waterward of the line of

mean high water contiguous to the parcel are sovereignty submerged lands.

5. Roth received "major development" approval from Monroe County to

develop the parcel by constructing a commercial/retail development known as

"Whaler's Plaza.' The major development plan submitted to and approved by Monroe

County includes a docking facility.

6. In 1979 Roth filed an application with the Florida Department of

Environmental Regulation for a private dock facility at Whaler's Plaza. The

Department of Environmental Regulation approved that application and issued to

Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking

facility, and the permit expired on August 1, 1980.

7. One of the agencies involved in reviewing that permit application was

the Respondent. On June 26, 1979, Respondent notified Roth that upon review of

the application in DER File No. 44-18542-5E, it had determined that the

submerged lands were state-owned but that no lease agreement with Respondent

would be required.

8. After Permit No. 44-18542-5E expired on August 1, 1980, the Department

of Environmental Regulation directed a letter to Petitioner advising him that

the permit had expired and further advising him that if he wished to pursue the

project he would have to obtain a new permit.

9. in October 1983 Roth sought new authorization from the Department of

Environmental Regulation and Respondent to construct a docking facility at

Whaler's Plaza. His application was assigned DER File No. 440774875.

10. On December 29, 1983, Respondent notified Roth that a lease would be

required for the use of state-owned lands contiguous to Whaler's Plaza, relative

to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's

docking facility would be required to meet new criteria.

11. The docking facility proposed by Roth in 1983 was similar to the

docking facility proposed in 1979. The 1983 proposed modified docking facility

was still represented to the Department of Environmental Regulation to be a

private boat dock. The Department of Environmental Regulation issued an intent

to deny the 1983 application under its then-existing rules, and Roth requested a

formal hearing on that preliminary denial. Before a final hearing could be

conducted, Roth again modified the proposed docking facility so that he

qualified for a dredge and fill permit exemption from DER, so that no DER permit

was needed for his project. A final order was entered by the Department of

Environmental Regulation on August 27, 1985.

12. While Roth's 1983 application was pending before the Department of

Environmental Regulation, Roth was processing his application with Respondent

for a submerged land lease for the docking facility. The documents he filed

with Respondent, however, indicated that the docking facility was not intended

to be a private dock but rather was a dock related to the commercial development

at Whaler's Plaza. Roth represented to Respondent that the proposed docking

facility would be for the convenience of patrons of the stores and restaurant at

Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985,

Roth directed a letter to Respondent pursuant to Respondent's request for

additional information. He described the Whaler's Plaza docking facility as

follows:

The wood dock will be used for arriving and

departing customers of the restaurant and

stores and my own personal use.

The upland land use and activities of the

property--will be developed into a shopping

center. At the present time, the first

phase is completed which is a one-story

building containing four units, housing six

retail stores, plus offices. The next

phase will consist of three more buildings

having five units each, 1,0000 [sic] sq.

ft. each unit which will be for retail

stores and offices, and the final phase

will be a 200 seat restaurant, a miniature

[sic] petting zoo and possibly a miniature

golf course.

... 70 percent of the slips will be open to the

general public for their convenience In

patronizing the restaurant and stores; the

remaining 30 percent of the slips will be for my

own personal use.

13. Roth never completed the lease application he filed with

Respondent, and he failed to obtain approval for the use of the sovereignty

submerged lands preempted by the docking facility proposed in DER File No.

440774875. Eventually, his pending application with Respondent was deactivated,

and the file was closed.

14. In late 1986, Roth initiated construction of his docking facility on

sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be

placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of

Respondent's enforcement officers, discovered the dock being constructed and

verbally instructed Roth, through Mrs. Roth, to immediately cease construction

activity. No further construction has taken place.

15. Despite the verbal notification, a subsequent warning notice sent by

certified mail, and Respondent's Notice of Violation and Order for Corrective

Action, Roth has failed to remove the pilings and/or to take corrective measures

regarding the partially completed docking facility.

16. Roth has allowed vessels to be moored at the partially completed

docking facility, has moored his own vessels at the partially completed docking

facility, and has failed to prevent other persons from mooring at the partially

completed docking facility. Roth's actions have resulted in damage to a benthic

seagrass community on the adjacent sovereignty submerged lands over which Roth's

partially completed docking facility is located, and over which vessels using

the facility have been and would be moored. Those submerged lands constitute a

benthic community of seagrass which supports various fauna and which would be

adversely affected by completion and operation of the docking facility. The

water depths in the area are shallow, with areas of less than -4 feet mean low

water.

17. The width of Tarpon Creek in the project area is approximately 100

feet.

18. The length of the partially completed docking facility is

approximately 150 feet.

19. Although the dock extends parallel to the shore, the distance the dock

extends into Tarpon Creek, as measured from the shoreline, is approximately 35

feet.

20. Roth knowingly trespassed on sovereignty submerged lands by initiating

construction of the docking facility, and he has willfully damaged those lands

by drilling holes and placing pilings, and by allowing moored vessels to shade

the seagrass.

21. Although Roth ceased construction of the docking facility when told to

stop, he has failed to attempt to resolve the violation, to remove the pilings,

to seek an after-the-fact approval, or to cease all mooring of vessels on

sovereignty submerged lands adjacent to the uplands, even subsequent to

receiving the Notice of Violation and Order for Corrective Action.

22. Respondent's June 26, 1979 letter to Roth authorized the activities

described in DER Permit No. 44-18542-5E, for the period authorized by that

permit. Roth knew that the DEP permit, and therefore Respondent's approval to

engage in the activity authorized by that permit, had expired. Roth further

knew that his new application filed in 1983, DER File No. 440774875, which was

approved by DER after Roth further modified it in order to qualify for an

exemption, did not exempt him from obtaining authorization from Respondent to

use sovereignty submerged lands for the project and further knew that when he

commenced construction of the docking facility in 1986 that he had not obtained

approval from Respondent to use state-owned submerged lands.

23. Roth offered no evidence to demonstrate any detrimental reliance upon

the June 26, 1979, DNR letter, and the letter did not create a vested right for

Roth to construct a different docking facility at a later time without

authorization from Respondent.

24. The uplands at the Whaler's Plaza commercial/retail development are

owned by for-profit corporations which Roth controls and which derive income

from the business and commercial activities at Whaler's Plaza. The docking

facility intended primarily for the use of customers of Whaler's Plaza would

therefore constitute a revenue generating/income related activity.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction over the subject

matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

25. Respondent is the state agency whose Division of State Lands serves as

staff to the Board of Trustees of the Internal Improvement Trust Fund, State of

Florida. Section 253.002 Florida Statutes (1987). The Trustees hold title to

sovereignty submerged lands in tidal waterbodies Article X, Section 11, Florida

Constitution (1968) and Sections 253.003 and 253.012, Florida Statutes (1987)

26. Section 253.77(1), Florida Statutes (1987), prohibits "excavation,

construction, or other activity involving the use of sovereign ... lands ...

until such person has received from the Board ... the required lease, license,

easement, or other form of consent authorizing the proposed use." Petitioner

willfully violated Section 253.77(1), Florida Statutes (1987).

27. Chapter 18-21, Florida Administrative Code, provides the procedures,

standards, policies, criteria and application requirements for the use of

sovereignty submerged lands. Roth's partially completed docking facility is not

eligible for a submerged land lease in that there are benthic communities

present where the boat mooring area is and would be located, there are depths of

less than -4 feet mean low water present, and its length Preempts greater than

20 percent of Tarpon Creek, the affected waterbody. Rule 18-21.0041(1)(b)3.,

4.b., and 9., Florida Administrative Code.

28. By initiating construction, excavating, and maintaining structures on

state-owned lands with actual knowledge that he lacked the requisite approval;

and by allowing vessels to moor on the unauthorized facility, resulting in

damage to the seagrass constituting a benthic community, Roth has willfully

violated Rules 18-14.003(4) and (6), Florida Administrative Code.

29. Rules 18-14.002 and 18-14.005, Florida Administrative Code, provide

for the assessment of fines for willfully damaging state land and for willfully

violating the provisions of Chapter 253, Florida Statutes, and they establish

the procedures for the imposition and collection of fines. Rule 18-14.002(4)

provides that a fine ranging between $1 and $2500 shall be imposed for a first

offense, although fines for first offenses may exceed $2500 upon approval by the

Board. in its proposed recommended order, Respondent recommends a fine of

$10,000. Respondent failed to offer any evidence in support of its position

that the normal guideline for first offenses should be exceeded; rather, the

only evidence offered by Respondent in this cause was the evidence necessary to

prove the statutory and rule violations found herein. On the other hand,

imposition of a fine at the top of the range for first offenses is appropriate

in view of the fact that Petitioner was not ignorant of the requirement that he

receive approval to construct his docking facility; rather, Petitioner is well

aware of the requirement and actually processed an application for approval

which he failed to complete. Lastly, although Petitioner ceased construction

when discovered by Respondent's enforcement officer, he has failed to take any

corrective action and continued to allow vessels to moor at the unauthorized

docking facility even after being served with Respondent's Notice of Violation

and Order for Corrective Action.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered requiring petitioner to:

(1) Remove the unauthorized structure within 20 days from the date on which

the Final Order is entered and in accordance with Respondent's supervision of

that removal;

(2) Immediately cease all mooring of vessels on sovereignty submerged lands

adjacent to the uplands of the parcel known as Whaler's Plaza until authorized

to use state-owned lands; and

(3) Pay a fine of $2500 within 15 days of receipt of a certified letter

from the Executive Director of the Department of Natural Resources demanding

payment to the internal improvement Trust Fund.

DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee,

Florida.

___________________________

LINDA M. RIGOT,

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of October, 1988.

COPIES FURNISHED:

David L. Manz, Esquire

Post Office Box 177

Marathon Florida 33050

Ross S. Burnaman, Esquire

Department of Natural Resources

3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Tom Gardner, Executive Director

Department of Natural Resources

3900 Commonwealth Boulevard

Tallahassee, Florida 32303