90-004286 Robert A. Knuck vs. Board Of Trustees Of The Internal Improvement Trust Fund Status: Closed Recommended Order on Monday, February 10, 1992.

Summary: Dock authorized as pre-1967 structure in Pennekamp State Park where entire dock existed in 1938 and where pilings remained in original location

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT A. KNUCK, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4286

)

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 October 31, 1991,

in Homestead, Florida.

APPEARANCES

For Petitioner: James H. Burgess, Jr., Esquire

Syprett, Meshad, Resnick

& Lieb, P.A.

Post Office Box 1238

Sarasota, FL 34230-1238

For Respondent: Suzanne B. Brantley, Esquire

Department of Natural Resources

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's dock should receive authorized

structure status or whether it should be modified or removed.

PRELIMINARY STATEMENT

By letter dated May 18, 1990, Respondent notified Petitioner that his dock

did not qualify as a pre-1967 structure and needed, therefore, to be modified,

and Petitioner timely requested a formal hearing regarding that determination.

This matter was thereafter transferred to the Division of Administrative

Hearings for the conduct of a formal proceeding.

Petitioner testified on his own behalf and presented the testimony of

Joseph T. Lance, Louie Johnston, and Rebecca Russell McFee. Respondent

presented the testimony of Carl R. Nielsen, John A. Baust, Herbert Grant

Gelhardt IV, Rod A. Maddox, and Anne S. Deaton. Additionally, Petitioner's

Exhibits numbered 1-13, 15, 16, and Respondent's Exhibits numbered 1-10 were

admitted in evidence.

Both parties submitted posthearing proposed findings of fact in the form of

proposed recommended orders. A specific ruling of each proposed finding of fact

can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the owner of real property known as Lot 6, Block 10,

Angler's Park, in Key Largo, Florida. He purchased that property in November of

1986.

2. Petitioner's property is contiguous to sovereign submerged lands in

Largo Sound, a sound of the Atlantic Ocean. The Board of Trustees of the

Internal Improvement Trust Fund of the State of Florida holds title to submerged

lands waterward of the mean high water line contiguous to Petitioner's property.

3. The submerged lands contiguous to Petitioner's property lie within the

boundaries of John Pennekamp Coral Reef State Park. The Board of Trustees

dedicated the submerged lands contiguous to what is now Petitioner's property to

the Florida Board of Parks and Historical Memorials, now the Division of

Recreation and Parks of the Department of Natural Resources, on September 21,

1967.

4. A dock existed on the submerged lands contiguous to Petitioner's

property prior to 1967. The entire dock existed at least by 1938. The historic

dock was probably one of the oldest docks in Largo Sound. Due to the passage of

time and hurricanes, only the pilings and a concrete pad near shore still

existed as of 1967. The dock was not rebuilt until 1988.

5. Throughout the years, boats were moored at the dock. After the

planking on the dock no longer existed, people still moored their boats to

individual pilings. The dock was considered an excellent location for fishing,

and people travelled by boat to the location, tying their boats to the pilings

to fish.

6. When Petitioner purchased his property, the only structures left on the

contiguous submerged lands were thirteen concrete pilings and the concrete pad

near shore. Only four of the pilings were sticking up out of the water. The

remaining pilings were submerged. The original configuration of the historic

dock was easily ascertained by the pilings and concrete pad.

7. After Petitioner purchased his property, he began constructing a

residence. He would travel from elsewhere in the Key Largo area by boat, would

tie his boat to one of the pilings, and would wade ashore.

8. Petitioner applied to Monroe County for a permit to rebuild portions of

the dock. Although Monroe County accepted and retained his permit application

fee, he was not issued a permit. Instead, he was told that he should contact

the people at Pennekamp State Park.

9. Petitioner then contacted Respondent's employees at Pennekamp State

Park about reconstructing portions of the dock. In response to that inquiry

Petitioner received a letter dated June 10, 1987, advising him that Respondent

was not a permitting agency. That letter further recited two of Respondent's

rules prohibiting the removal or destruction of natural features and marine life

and construction activities in that state park.

10. Having been frustrated by his attempts to obtain a permit to rebuild

the dock from both Monroe County and from Respondent's employees at Pennekamp

State Park, Petitioner made no further effort to obtain a permit or

authorization from any other state, local, or federal government agency to

reconstruct his dock. One day he backed a pickup truck to the edge of the

water, hooked up, and raised the closest piling up in the air. Utilizing the

existing pilings and adding additional ones, Petitioner rebuilt the dock "going

a step at a time." In the course of his rebuilding the dock, Petitioner

replaced the wooden decking and fasteners, replaced the wooden stringers and

fasteners, added seven new concrete pilings, raised and repositioned several

existing concrete pilings, and poured concrete footings for the new pilings.

11. He completed rebuilding the dock in 1989. During the almost one year

that he was rebuilding the dock, he worked in plain view of employees of local

and state agencies. He was easily observed by the Coast Guard, the Marine

Patrol, and the Park Service boats travelling to and through the Marvin D. Adams

Waterway located approximately seventy-five feet from his property. No one told

Petitioner to stop his construction activities.

12. When it was completed, his dock was 12 feet wide and 84 feet long, 28

feet shorter than the historic dock. Petitioner's entire dock consists of 1018

square feet. Petitioner's dock is in the same location as the historic dock.

Petitioner's dock is a private dock, used only by him when he moors his boat

there occasionally.

13. In re-building his dock, Petitioner extended it to a distance so that

the water depth at the end of Petitioner's dock is four feet mean low water.

Additionally, Petitioner left an open space of one to two inches between each

plank on the deck so that sunlight could penetrate between the deck planking the

entire distance of the dock.

14. Pilings are an integral part of a dock.

15. In 1988 Respondent began conducting a survey of private docks,

commercial marinas, and fills, both authorized and unauthorized, within the

boundaries of Pennekamp State Park as those boundaries were extended in 1967 to

Key Largo. The survey was to be utilized in developing a policy regarding

structures within the extended park boundaries. Petitioner's dock was included

in that survey. The information which Respondent transmitted to the Governor

and Cabinet regarding Petitioner's dock was that it was not authorized, that it

was built in 1990, and that the water depth at the mooring area, considered by

Respondent to be the terminal end of the dock, was two feet.

16. Respondent did not advise the Governor and Cabinet that a dock had

been in existence at Petitioner's property prior to 1967 and as far back as at

least 1938, that the concrete pad and thirteen pilings from the historic dock

still existed, or that Petitioner had rebuilt the dock in the same location, but

shorter, than the historic dock. Further, Respondent did not advise the

Governor and Cabinet that its water depth measurement of two feet was not taken

at the waterward end of the dock, the way such a measurement is normally done.

Respondent did advise the Governor and Cabinet that the access channel to the

dock was four feet deep.

17. On April 12, 1990, the Governor and Cabinet, sitting as the head of

Respondent, approved a policy regarding development encroachments in Pennekamp

State Park. The portion of that policy which relates to private docks provides

as follows:

Private docks must (1) be in existence prior

to 1967 within state park waters to receive

authorized structure status; (2) all docks

within state park waters legally authorized

by the Department of Natural Resources or the

Board of Trustees during or after 1967 receive

status as authorized structures; (3) that all

other private docks in existence since 1967

within state park waters that are not legally

authorized by Department of Natural Resources

or the Board of Trustees have been evaluated

on a case-by-case basis, taking into

consideration any authorization issued by

state and federal environmental agencies and,

using the Florida Keys Marina and Dock Siting

Policies and Criteria - 18-21.0041 Florida

Administrative Code, as a guideline for

reviewing environmental impact on marine

communities, designate the structure as either

authorized or require removal or modification;

and (4) that no future authorizations will be

issued for the construction of new private

docks in state park waters.

18. Respondent subsequently notified Petitioner that his dock fell into

category (3), that it had been evaluated on an individual basis using the

Florida Keys Marina and Dock Siting Policies and Criteria, that his dock had an

impact on marine communities because it exceeded the size and dimension

requirements and did not meet the water depth requirements, and that

Petitioner's dock needed to be "modified." Respondent further advised

Petitioner that the modifications required included reconstructing his dock to a

T-shaped structure rather than Petitioner's rectangular-shaped structure. The

new structure would be required to have a four-foot wide walkway with a terminal

platform of no more than 160 square feet. Further, Respondent's proposed dock

would also extend an additional 28 feet further into Largo Sound than

Petitioner's dock. Respondent also required that Petitioner install permanent

handrails along the dock in order to convert it to only a swimming/fishing pier,

and the mooring of any water craft to the structure would be prohibited.

Petitioner has not so modified his dock.

19. There are algae, sea grasses, sponges, coral, and other vegetation and

marine life beneath and adjacent to Petitioner's dock, constituting a marine

community.

20. Shading has an adverse impact on the growth of sea grasses and marine

vegetation. Where shading exists under Petitioner's dock, the submerged land

under the dock is nearly barren. However, Petitioner rebuilt the dock in a

manner so as to reduce the effect of shading. The dock is 41 inches above water

at high tide. The spacing between planks on the deck also allows sunlight to

penetrate the water below Petitioner's dock. An underwater videotape of the

area beneath and around Petitioner's dock reveals an extensive marine life

habitat and nursery. The pilings which have been under water for such a long

time have an extensive buildup of sponges and coral which, in turn, provide a

habitat for an enormous number of fish. Spiny Florida lobsters live under

Petitioner's dock, as do mangrove snapper, barracuda, porkfish, damselfish, reef

fish, sea cucumbers, and urchins.

21. In effect, Petitioner has created an artificial reef. Some of the

barren areas beneath Petitioner's dock are a result of the halo effect, i.e.,

the crustaceans and fish living under the dock and in the sponges and soft

corals on the pilings only graze so far from their homes in order to avoid

predators. This halo effect can also be seen around the free-standing pilings

outside of Petitioner's dock area. Even if the planking on Petitioner's dock

were removed, the sea grasses would not grow back around the pilings since the

grazing organisms would still be present.

22. Although there may be less shading beneath Respondent's proposed dock

than exists underneath Petitioner's dock, substantial damage to the marine

community beneath Petitioner's dock would be caused by the removal of

Petitioner's dock and the building of a new one. It is not clear that the long-

term effect of Respondent's proposed dock would have less adverse impact than

Petitioner's dock. It is likely, however, that the removal of the present dock,

with or without the subsequent construction of Respondent's proposed dock, would

have a substantial adverse effect on the healthy marine community now existing

beneath and around Petitioner's dock.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has jurisdiction over the

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

Statutes.

24. This is not an enforcement action. Respondent does not seek to

require removal of Petitioner's dock and does not seek the imposition of any

sanction for Petitioner's failure to obtain a permit or authorization prior to

rebuilding his dock. The policy under consideration in this cause specifically

allows certain unauthorized private docks to remain. The clear intent of the

policy is to regulate construction within the extended boundaries of Pennekamp

State Park. In development of its policy, the Department inventoried existing

private docks within the extended boundaries. That inventory included

authorized and unauthorized private docks. The policy adopted by the Governor

and Cabinet considered all existing private docks, placed those structures into

three different categories, and then prohibited the future construction of new

private docks within the extended boundaries of Pennekamp State Park.

25. The three categories for existing private docks are as follows: (1)

those in existence prior to 1967 receive authorized structure status; (2) those

legally authorized by Respondent or the Board of Trustees during or after 1967

receive status as authorized structures; and (3) all other private docks in

existence since 1967 not legally authorized by the Department or the Board of

Trustees are evaluated on a case-by-case basis, taking into consideration any

authorization issued by state and federal environmental agencies and using the

Florida Keys Marina and Dock Siting Policies and Criteria found in Section 18-

21.0041, Florida Administrative Code, as a guide for reviewing environmental

impact on marine communities. Based upon that review, a structure within

category (3) shall be designated as authorized or its removal or modification

shall be required. In the case at bar, Petitioner contends that his dock falls

within category (1), but Respondent contends that Petitioner's dock falls within

category (3). In arguing its position that the dock falls into category (3),

Respondent ignores the language in the policy that states that even a dock

within category (3) can be designated as an authorized structure. Instead,

Respondent argues that the dock must be "modified," also ignoring the fact that

the "modification" it requires includes removing Petitioner's dock in order to

build a different one.

26. The policy itself does not define what is a "dock." However,

Respondent's rules do contain a definition for the word "dock." Chapter 18-21,

Florida Administrative Code, regulates the management of sovereignty submerged

lands. Section 18-21.003(16) defines dock as ". . . a fixed or floating

structure, including moorings, used for the purpose of berthing buoyant

vessels." Similarly, Section 18-20.003(13), Florida Administrative Code,

another section of the rules of the Board of Trustees of the Internal

Improvement Trust Fund, defines dock as ". . . a fixed or floating structure,

including moorings, used for the purpose of berthing buoyant vessels either

temporarily or indefinitely."

27. In their Prehearing Stipulation the parties stipulated that: "A dock

existed on the submerged lands contiguous to Petitioner's property prior to

1967. The entire dock existed in or about 1938. Only the pilings and a

concrete pad near shore still existed as of 1967."

28. Respondent argues that for a number of years prior to 1967 there was

no decking on the dock, that the pilings and concrete pad alone do not

constitute a dock, and that, therefore, Petitioner's dock did not exist prior to

1967. Respondent's argument is in error. Respondent does admit that pilings

are an integral part of a dock. Under Respondent's own rules the pilings and

the concrete pad constitute a dock. Each of the pilings was a fixed structure

used for the purpose of berthing buoyant vessels. The evidence is

uncontroverted that even after the historic dock fell into disrepair, people

fishing in the area would tie their boats to a piling, and fish. Petitioner has

now replaced the planking between those pilings and has rebuilt the dock. It is

clear that Petitioner's dock was in existence prior to 1967 and is entitled to

receive authorized structure status pursuant to category (1) of the policy

enacted by the Governor and Cabinet, sitting as the head of the Department of

Natural Resources.

29. Even if the Department were correct in its argument that the

Petitioner's dock should be placed in category (3), Petitioner is still entitled

to have his dock designated as an authorized structure pursuant to category (3).

Although that category relates to private docks in existence since 1967 and not

legally authorized by the Department of Natural Resources or the Board of

Trustees, that category requires a review of the structure on a case-by-case

basis using the Florida Keys Marina and Dock Siting Policies and Criteria as a

guideline for reviewing environmental impact on marine communities. Based upon

that review, the structure would then be classified as authorized or removal or

modification could be required.

30. There is no showing that Petitioner's dock has an adverse

environmental impact. Although it is clear that there is shading under

Petitioner's dock, the evidence is overwhelming that Petitioner's dock supports

a vibrant and healthy marine community. Although there are no sea grasses

directly under the dock, the entire area both under and around Petitioner's dock

constitutes a healthy nursery and habitat for many marine plants and animals.

Although Petitioner's dock is not of the configuration and size specified in

Chapter 18-21, no adverse impact has been shown. Rather, Petitioner's dock is

elevated to a height of 41 inches above the water at mean high tide, and spacing

exists between planks in order to allow sunlight to penetrate.

31. Although some conflicting evidence was presented that the water at the

end of Petitioner's dock was somewhat less than four feet deep at mean low tide,

the conflict was among Respondent's own witnesses. The greater weight of the

evidence, and the convincing evidence, is that the water is four feet deep at

mean low tide at the end of Petitioner's dock and that, therefore, the criterion

in Chapter 18-21, Florida Administrative Code, regulating the depth of water

related to the construction of private docks has been met. Although there was

testimony that the impact from the Department's proposed dock might be less than

the impact from Petitioner's dock, that testimony is not persuasive. It is

expected that there would be some shading effect even under the modified dock

proposed by Respondent. There is no evidence that the dock proposed by

Respondent would result in the existence of a viable and healthy marine

community as now exists under and around Petitioner's dock. There is simply no

basis for Respondent's determining that Petitioner's dock should be modified

rather than authorized, both being options under category (3). Respondent

clearly has the authority to authorize the structure under category (3). Yet,

Respondent proposes that Petitioner modify a rectangular dock which is 12 feet

wide and 84 feet long and which supports a healthy and diverse marine community

into a T-shaped dock four feet wide, make it 28 feet longer, and then place a

handrail all the way around it so that Respondent can then prohibit the

Petitioner from using it to dock his boat and allow him to only use that large

structure for swimming and fishing. Such a result is clearly illogical and is

not supported by the intent or the language of the policy.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered giving Petitioner's dock

authorized structure status.

DONE and ENTERED this __10th__ day of February, 1992, 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 __10th__ day of February, 1992.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 1-3 and 5-7 have

been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 4 and 9 have been

rejected as unnecessary for determination of the issues involved herein.

3. Petitioner's proposed findings of fact numbered 8 and 10-19 have

been rejected as not constituting findings of fact but rather as constituting

conclusions of law, argument of counsel, or recitation of the testimony.

4. Respondent's proposed findings of fact numbered 2-7, 9-13, 16-18,

20, 21, 26-31, 33, 36, and 37 have adopted either verbatim or in substance in

this Recommended Order.

5. Respondent's proposed findings of fact numbered 1, 8, 14, 15, 25,

35, 40, and 41 have been rejected as being unnecessary for determination of the

issues herein.

6. Respondent's proposed findings of fact numbered 22-24 have been

rejected as not constituting findings of fact but rather as constituting

conclusions of law, argument of counsel, or recitation of the testimony.

7. Respondent's proposed finding of fact numbered 19 has been rejected

as being irrelevant to the issues herein.

8. Respondent's proposed findings of fact numbered 32, 34, 38, 39, and

42-44 have been rejected as not being supported by the weight of the evidence in

this case.

COPIES FURNISHED:

James H. Burgess, Jr., Esquire

Syprett, Meshad, Resnick

& Lieb, P.A.

Post Office Box 1238

Sarasota, Florida 34230-1238

Suzanne B. Brantley, Esquire

Department of Natural Resources

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Don E. Duden

Acting Executive Director

Department of Natural Resources

Mail Station 10

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Ken Plante, General Counsel

Department of Natural Resources

Mail Station 10

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF ADMINISTRATION

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA

ROBERT A. KNUCK,

Petitioner,

vs.

DOAH Case No. 90-4286

DEPARTMENT OF NATURAL DNR Case No. 90-145 RP

RESOURCES,

Respondent.

__________________________/

FINAL ORDER

THIS CAUSE came before the Governor and Cabinet, sitting as the head of the

Department of Natural Resources ("Department"), at the regularly scheduled

Cabinet meeting on May 5, 1992, for consideration and final agency action.

The hearing officer assigned by the Division of Administrative Hearings,

Linda M. Rigot, served her Recommended Order on the Executive Director of the

Department on February 10, 1992, a copy of which is attached hereto as Exhibit A

and hereby incorporated by reference. Pursuant to section 120.57(1)(a)9, Florida

Statutes, and Rule 16-5.001, Florida Administrative Code, the parties were

allowed 25 days in which to submit written exceptions to the Recommended Order.

No exceptions were filed by Petitioner. Respondent filed its exceptions on

March 6, 1992, and Petitioner filed his reply to those exceptions on March 26,

1992.

There were two issues presented in this case: 1) whether the dock should

have been granted authorized structure status as a pre- 1967 dock; and 2) if the

dock were not authorized as a pre-1967 dock, whether it had an adverse impact on

the marine communities.

Having considered the complete record in this matter, the proposed final

order, the Recommended Order, the Department's exceptions and response

thereto, and being otherwise fully advised, the Department hereby makes the

following findings of fact and conclusions of law and enters the following final

order:

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact in her Recommended Order

numbered 1, 2, 3, 4, 6, 12, 14, 15, 16, and 17 are hereby adopted in their

entirety.

2. Finding of Fact 5 is reworded (as the parties agree in their

exceptions and reply) and adopted as follows:

5. In 1938 boats were moored at the dock.

Between 1956 and 1988, after the planking

was gone, people fished around the pilings,

often tying up to the pilings while they fished.

3. Findings of Fact 7-11, 13, and 18-22 are rejected because they relate

to the second issue presented and are therefore irrelevant. The exceptions

filed by the Department to paragraphs 9 and 21 are accordingly rejected as

irrelevant, as stated in Appendix 1, attached hereto and incorporated herein.

CONCLUSIONS OF LAW

The Department hereby adopts as its Conclusions of Law the following

portions of the Conclusions of Law of the Hearing Officer's Recommended Order:

1. The Division of Administrative Hearings has jurisdiction over the

parties hereto and the subject matter hereof. Sec. 120.57, Fla. Stat. (1991).

2. The policy under consideration in this cause specifically allows

certain unauthorized private docks to remain. The clear intent of the policy is

to regulate construction within the extended boundaries of John Pennekamp Coral

Reef State Park ("the Park"). In development of its policy, the Department

inventoried existing private docks within the extended boundaries of the Park.

The policy adopted by the Governor and Cabinet considered all existing private

docks, placed those structures into three different categories, and then

prohibited the future construction of new private docks within the extended

boundaries of the Park.

3. The three categories for existing private docks are as follows: (1)

those in existence prior to 1967 receive authorized structure status; (2) those

legally authorized by Respondent or the Board of Trustees during or after 1967

receive status as authorized structures; and (3) all other private docks in

existence since 1967 not legally authorized by the department or the Board of

Trustees are evaluated on a case-by-case basis, taking into consideration any

authorization issued by state and federal environmental agencies and using the

Florida Keys Marina and Dock Siting Policies and Criteria found in Section 18-

21.0041, Florida Administrative Code, as a guide for reviewing environmental

impact on marine communities.

4. The policy itself does not define "dock." However, Respondent's rules

do contain a definition for the word "dock." Chapter 18-21, Florida

Administrative Code, regulates the management of sovereignty submerged lands.

Section 18-21.003(16) defines "dock" as ". . . a fixed or floating structure,

including moorings, used for the purposes of berthing buoyant vessels."

Similarly, Section 18-20.003(13), Florida Administrative Code, another section

of the rules of the Board of Trustees of the Internal Improvement Trust Fund,

defines dock as ". . . a fixed or floating structure, including moorings, used

for the purpose of berthing buoyant vessels either temporarily or indefinitely."

5. In their prehearing stipulation, the parties stipulated that: "A dock

existed on the submerged lands contiguous to Petitioner's property prior to

1967. The entire dock existed in or about 1938. Only the pilings and a

concrete pad near shore still existed as of 1967."

6. The evidence is uncontroverted that even after the historic dock fell

into disrepair, people fishing in the area would tie up their boats to a piling

and fish. Petitioner has now replaced the planking between those pilings and

has rebuilt the dock. It is clear that Petitioner's dock was in existence prior

to 1967 and is entitled to receive authorized structure status pursuant to

category (1) of the policy enacted by the Governor and Cabinet, sitting as the

head of the Department of Natural Resources.

7. The remainder of the Hearing Officer's Conclusions of Law are

specifically rejected as irrelevant to this order. The exceptions to those

conclusions of law are accordingly rejected as irrelevant, as stated in Appendix

1.

Based on the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED:

Petitioner's dock is granted authorized structure status as a pre-1967 dock

under the April 12, 1990 policy.

The foregoing constitutes final agency action. Any party adversely

affected by this order has the right to seek judicial review of this Final Order

pursuant to section 120.68, Fla. Stat. (1991), and rules 9.030(b)(1)(C) and

9.110, Florida Rules of Appellate Procedure. To initiate an appeal, a Notice of

Appeal must be filed with the Department of Natural Resources, Office of the

General Counsel, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, FL

32399-3000, and with the appropriate District Court of Appeal within thirty (30)

days of the date this order is filed by the Agency Clerk. The Notice filed with

the District Court of Appeal must be accompanied by the filing fee specified in

section 35.22(3), Fla. Stat. (1991).

DONE and ORDERED the of __13__ __May__, 1992.

STATE OF FLORIDA

DEPARTMENT OF NATURAL RESOURCES

_________________________________

Virginia B. Wetherell

Executive Director

Filed this __13__ day of ___________, 1992. Agency Clerk

CERTIFICATE OF MAILING

I HEREBY CERTIFY that a copy of this order was furnished by

certified/return receipt mail to James H. Burgess, Jr., Esquire, Syprett,

Meshad, P. O. Box 1238, Sarasota, FL 34230; by hand delivery to Suzanne B.

Brantley, Esquire, Department of Natural Resources; and by U. S. mail to Linda

M. Rigot, Hearing Officer, Division of Hearings, DeSoto Building, 1230 Apalachee

Parkway, Tallahassee, FL 32399-1550 the __13__ day of __May__, 1992.

_________________________________

Agency Clerk

APPENDIX TO FINAL ORDER: RULING ON EXCEPTIONS

EXCEPTIONS TO FINDINGS OF FACT

1. Respondent's exception to Findings of Fact paragraph 5 is accepted.

2. Respondent's exception to Findings of Fact paragraph 9,

while it may be correct for the reasons stated therein, is rejected as

irrelevant to this order.

3. Respondent's exception to Finding of Fact paragraph 21,

while it may be correct for the reasons stated therein, is rejected as

irrelevant to this order.

EXCEPTIONS TO CONCLUSIONS OF LAW

1. Respondent's exceptions to Conclusions of Law paragraphs 1, 3, 4, while

they may be correct for the reasons stated therein, are rejected as irrelevant

to this order. Respondent's exception stated in paragraph 2 is rejected since

the Board of Trustees' rules are applicable to this action in a state lands

context. Since the hearing officer found as a fact that "[a] dock existed on the

submerged lands contiguous to Petitioner's property prior to 1967," and

concluded as a matter of law that "[i]t is clear that Petitioner's dock was in

existence prior to 1967 and is entitled to authorized structure status pursuant

to category (1) of the policy. . . ," that is dispositive of this case, and it

is not necessary to reach conclusions about any other issues. The exceptions

are therefore rejected as irrelevant.

It is within the authority of the Department to accept or reject

conclusions of law. Dept. of Professional Regulation v. Wayne, 405 So.2d 471

(Fla. 1st DCA 1981). The Department rejects only those portions of the Hearing

Officer's Conclusions of Law which are not necessary to its final order and

which are therefore irrelevant.