94-002578 Sykes View Homeowners Association And Gene R. Smith vs. Department Of Environmental Protection, F/K/A Department Of Natural Resources Status: Closed Recommended Order on Thursday, August 10, 1995.

Summary: Waiver of criteria appropriate where 220 ft. dock is needed for boating access and extraordinary circumstances exist. Permit for a single family dock

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYKES VIEW HOMEOWNERS )

ASSOCIATION, and GENE R. SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2578

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, f/k/a DEPARTMENT OF )

NATURAL RESOURCES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated hearing officer, Mary Clark, held a formal hearing in the above-

styled case on February 9 and 10, 1995, in Melbourne, Florida.

APPEARANCES

For Petitioners: Allen C. D. Scott, II, Esquire

120 Commercial Avenue

Federal Point, Florida 32131

For Respondent: M. B. Adelson, IV, Esquire

Assistant General Counsel

Department of Environmental Protection

2600 Blair Stone Road, Mail Station 35

Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

1. Whether petitioners were required to obtain consent or authorization

from Respondent to occupy and use sovereign submerged lands for the dock at

issue herein;

2. Whether petitioners obtained agency consent or authorization to occupy

and use sovereign submerged lands;

3. Whether petitioners are entitled to consent or authorization to occupy

and use sovereign submerged lands after-the-fact; and

4. If entitled, what terms and conditions should apply or be imposed

incident to granting after-the-fact authorization to occupy and use sovereign

submerged lands.

PRELIMINARY STATEMENT

This case concerns a dock constructed contiguous to Tract A, Sykes View

Estates, in Merritt island, Brevard County, Florida.

The Department of Natural Resources (DNR), now Department of Environmental

protection (DEP) , issued a letter and notice of rights to administrative

proceeding in October 1990. petitioners responded with a request for hearing,

but the agency initially contended that the petition was untimely, and initiated

enforcement proceedings in circuit court. The circuit court cases were later

voluntarily dismissed and the timeliness issue was waived based on Petitioners'

production of an earlier date stamped copy of their petition. The case was

referred to the Division of Administrative Hearings in May of 1994, for a formal

administrative hearing pursuant to section 120.57(1), Florida Statutes.

After a continuance for good cause, and after the agreed withdrawal as

parties of several homeowners or former homeowners in the Sykes View

subdivision, the hearing proceeded as described above.

Petitioners presented the following witnesses: Richard Hefley, Ron Maddox,

Gene Smith, and (as rebuttal) Peter Santisi and Shawn Huff. Respondent

presented these witnesses: Ron Maddox, Bryan Poole, William Bunch, Barbara Bess

and Michael Ashey.

Two exhibits were marked and received as joint exhibits: the Sykes View

Estates subdivision plat and an application for permit dated May 10, 1989. The

following were marked and received as petitioners' exhibits: petitioners' #1,

5-17, and 19-36. These were marked and received as Respondent's exhibits:

Respondent's 1, 4, 13, 19, 23-25, 27, 30, 40, 43, 55, 58 and 59, and 61-66.

Respondent's exhibits 56 and 57 were marked for identification but were rejected

as irrelevant.

The transcript of proceeding was filed on March 7, 1995. The parties filed

their proposed recommended orders on April 4 and 5, 1995. The findings of fact

proposed by each are addressed in an appendix to this recommended order.

On May 4, 1995 the hearing officer received a telephone message that

petitioner Gene Smith was deceased. In response to a notice by the hearing

officer, counsel for the parties, in separate letters, stated that the death

should not affect the instant proceeding. The references herein to the party,

Gene Smith, shall include his appropriate successors in interest.

FINDINGS OF FACT

The Parties

1. Gene R. Smith is an individual who holds title to real property in

Merritt island, Brevard County, Florida, described as Tract A Sykes View

Estates. Gene R. Smith originally owned, in its entirety, the upland tract that

was developed as Sykes View Estates, a small six-lot residential subdivision.

2. Sykes View Association, or Sykes View Homeowners' Association is an

unincorporated entity with certain rights in Tract A, described on the recorded

subdivision plat, filed for record on 10/8/87:

Tract "A" is dedicated to the homeowners

association for river access. Maintenance of

Tract "A" is the responsibility of the

homeowners association.

(Joint Exhibit 1)

3. The Department of Environmental Protection (DEP) was created by the

Florida Legislature in 1993 with the merger of two previously separate state

agencies, the Department of Environmental Regulation (DER) and the Department of

Natural Resources (DNR). All existing legal authorities of the two agencies and

all of their actions, pending and completed, were transferred to the new agency

in Chapter 93-43, Laws of Florida.

The Project

4. The dock at issue extends from Tract A into waters of the State of

Florida, more specifically, sovereignty submerged land lying within a water body

known as Sykes Creek, part of the Banana River Aquatic Preserve in Brevard

County, Florida.

5. Sykes Creek generally runs north and south approximately 4.25 miles,

from State Road 520 on the south to State Road 528 (the Beeline) on the north.

Along the western side of Sykes Creek are approximately a hundred canals and

thousands of homes. Sykes View Estates is also on the west side of Sykes Creek,

and is surrounded on three sides by Catalina Isles Subdivision. Although

virtually all of the west side of Sykes Creek from the Beeline to 520 is dredged

and bulkheaded, with a myriad of man-made finger canals to access upland

properties, the waterfront at Sykes View Estates is not dredged, and in its

natural condition the water attains a depth of four feet approximately 220 feet

from shore.

6. Unlike the intensely developed west side of Sykes Creek, the east side

of the water body is undeveloped; Audubon Park, a state-run park with extensive

marshes and lakes, occupies the area east of and across from Sykes View. There

are no homes at all on the east side of the Sykes Creek channel. Directly

across the open water channel of Sykes Creek from the Sykes View Estates tract

is a man-made dredge berm or dike, on the east side of which is both open water

and marsh. Since construction of the dock in issue, the dredge berm across from

Sykes View Estates has been filled and made into a roadway. For the purposes of

this proceeding, the easterly extent of the Sykes Creek water body has not been

surveyed.

7. Prior to its development, the Sykes View Estates parcel was used as a

dump site, full of trash and debris. In the late 1980's, Gene Smith, with the

assistance of Richard Hefley, a licensed general contractor who had recently

moved to Florida from Minnesota, determined to create a "tropical paradise."

The Process

8. In 1987, the subdivision plat was recorded and some houses were

constructed, including houses for Gene Smith and Richard Hefley. Shortly

thereafter, Gene Smith became very ill and asked Richard Hefley to help obtain

permits for the docks they planned.

9. Hefley had never been involved in the construction of docks, but

started at the Brevard County building department for information about the

process. He was told that the building department had no jurisdiction over open

water but someone referred him to the Army Corps of Engineers, (ACOE), across

the street.

10. Hefley met with Irene Sadowski, staff person with ACOE; she gave him a

copy of an instructional booklet titled, "State of Florida, Joint Application

for permit" for the U.S. Army Corps of Engineers, Florida Department of

Environmental Regulation and Florida Department of Natural Resources. He

studied the booklet and retained Fredlund and Packard, a survey and engineering

firm, to work on the application.

11. An initial application was prepared in March of 1988. Richard Hefley

took it to Irene Sadowski to look over and consulted with Wilbert Holiday from

DNR about the water depth requirements; he then went back to the engineers with

preparation of an application package for formal submittal.

12. The first application submitted to DER is dated 5/10/89 and is signed

by Richard Hefley, who is also listed as the applicant. The survey and

engineer's drawings attached to the application show three docks, one each on

lots 3, 4, and Tract A. The intent was to have a dock on Tract A for use by the

subdivision homeowners and two private docks for the riparian lot owners,

including Gene Smith. The application stated that ownership of all of the

subdivision was by Gene Smith, except for lot 2, owned by Richard Hefley. The

application is date-stamped received by DNR on June 20, 1989; and by DER on June

14, 1989.

13. After the initial application submittal, DER required that Hefley

segregate the three proposed docks into three separate applications and resubmit

them. The application for the dock on Tract A, which is the subject of this

proceeding, is dated June 30, 1989, and is signed by both Richard Hefley and

Gene Smith. The applicant is shown as "Sykes View Association." The application

is date-stamped received by DNR on August 16, 1989; by DER on July 17 and August

15, 1989; and by ACOE on July 6, 1989. processing of the applications for the

two other proposed docks was suspended after the present dispute arose.

14. After resubmitting the joint application, Richard Hefley paid a visit

to the DER district office in Orlando, in early August, and met with staff

person Barbara Bess. She agreed to see him without an appointment because she

perceived he was confused about the process. She also considered the

applications he submitted "a bit confusing" and she wanted to make sure that the

agency would not need to go through several reviews before his files could be

considered complete. In Ms. Bess' view, the application at that time was

substantially complete, and she noted this in a handwritten memorandum to the

file.

15. DER permit #05-168716-4 for the dock in dispute was issued on October

27, 1989. The permittee is listed as Sykes View Association, and the permit

provides that the permittee is authorized "to construct a private multi-dwelling

dock 220 feet long by 5 feet wide terminating in a 25 foot T on Sykes Creek in

Section 24, Township 24 South, Range 35 East." (Petitioner's exhibit #6)

16. The permit, the application form, and the instruction booklet

described in paragraph 10 above, each includes clear statements that all

necessary state, federal and local permits must be obtained prior to commencing

construction. Gene Smith and Richard Hefley were aware of those provisions. On

the joint application, below the signature line with Hefley's signature is this

printed statement:

NOTICE TO PERMIT APPLICANTS

This is a Joint Application; it is NOT a

Joint Permit You Must Obtain All Required

Local, State and Federal Authorizations or

Permits Before Commencing Work

(emphasis, underlining, bold, and extra

spacing in original, Joint Exhibit 2, page 4)

17. It is apparent that Richard Hefley knew that other agencies' permits

and a consent from DNR were required. However, he was also relying on the

instructional booklet that he had been given and had studied carefully. The

booklet describes a procedure for processing applications and provides that DER

will forward the application to the ACOE and DNR. The booklet describes the

review by the ACOE, DER and DNR. The booklet also states:

Where the proposed activity involves the use

of state-owned submerged lands, DER shall not

issue a permit before approval or consent of

use is obtained from DNR, although DER will

continue to process the application to the

extent possible.

The processing flow chart on page 29 of the booklet states:

No time constraints on actions taken by [DNR,

Bureau of Lands]. Application submitted to

DER is not complete until action by [DNR,

Bureau of Lands] is taken, if required.

(Petitioners' exhibit #1)

18. Understandably (and consistent with the typical applicant confusion

acknowledged by Barbara Bess) Richard Hefley and Gene Smith were elated with

their permit.

19. A condition on the DER permit requires the applicant to notify the

agency when it is ready to commence construction. Richard Hefley called Barbara

Bess and asked if everything was done. He understood her to say "yes", and he

said that he was notifying her that they were ready to commence and would get a

contractor. He followed his telephone call with a written confirmation dated

November 19, 1989.

20. Hefley and Gene Smith retained Darrell's Docks, a qualified builder in

Brevard County, and construction commenced on November 27, 1989. By Friday of

that week the project was virtually complete. The pilings, stringers, cross-

bracing and part of the decking were in place by Friday afternoon when Richard

Hefley was notified that he needed to call DNR. He tried to reach Wilbert

Holiday, but spoke instead to Todd Vandenberg who said that he needed to speak

with Mr. Holiday, who had already left the office. The deck was finished the

following day, a Saturday.

21. When Richard Hefley reached Wilbert Holiday he was told there was a

problem since the paperwork for the consent for use was not complete. Hefley

met with Holiday in the local DNR office on December 5, 1989 and a lengthy

process of exchange of questions and information commenced.

22. This process continued for several months in 1990 and culminated in

October 1990 with the notice of denial which triggered the request for formal

hearing and the instant proceeding.

The Controversy

23. If the applicant was confused about the process, the agency reviewers

were also confused about the application. The references to the Sykes View

Homeowners Association on the joint applications made the ownership and the use

intended unclear. During the permit review process and at the hearing these

issues were partially resolved as reflected in these findings of fact.

24. At all times relevant, Gene Smith was the record owner of Tract A, the

upland parcel upon which the dock is sited. Smith's intent was that the dock

would be used by the six homeowners in the small subdivision, for fishing and

boating. While the initial plan was for four boat slips, Mr. Smith, at some

stage of the review, agreed to reduce the number of slips to two. At all times

relevant and throughout the application and review process, Richard Hefley was

acting on behalf of Richard Smith, with his express authority. Neighbors enjoy

the use of the dock, but there is no evidence of any maintenance by the

homeowners' association.

25. The dock, as designed and built, is approximately 220 feet long and

five feet wide, with a 25 foot "T" cross at the end. It extends from the upland

tract across approximately 29 percent of the width of Sykes Creek. It does not

extend into the dredged channel and does not, therefore, interfere with

navigation in that channel. The width of Sykes Creek at the dock site is

approximately 750 feet, according to crude measurements with a U.S. Geological

Survey map and a ruler. In an attachment to one of the application submittals,

Petitioners' engineers reflect a width of 750 feet.

26. During the course of its review and before the denial notice, DNR

staff recommended that the dock be completely restructured to decrease the width

of the walkway to four feet, shorten the length from shore to 150 feet, raise

the height of the walkway to five feet above water, space the planks no closer

than 1/2 inch, install guard rails and post "no mooring" signs.

27. At any length less than presently existing, boat access is precluded,

as the water is too shallow. Power boats would prop dredge the sandy bottom in

the shallow water. Turbidity can affect sea grasses as distant as 100 feet from

the boat. The modifications recommended by DNR staff would permit some fishing

but no boating rights to the riparian owner. In the view of DNR's reviewing

staff, boating at this site is inappropriate.

28. The dock as built has received other permits and approvals in addition

to the DER permit. The DNR shellfish environmental assessment section stated no

objections, since the area is not a shellfish harvest area. The federal

Environmental Protection Agency provided a letter stating no objection. The

U.S. Fish and Wildlife Service conducted a review and issued a report and

recommendation for approval of the dock. The ACOE issued an after-the-fact

permit on July 2, 1992.

29. The DNR consent or approval that is the subject of this proceeding

requires a different review, since the Division of State Lands serves a

proprietary function on behalf of the Board of Trustees of the Internal

Improvement Trust Fund. No agency, including DER, had or claimed to have the

authority to waive the requirements for consent of use for state-owned submerged

lands.

30. There is no credible evidence that the owner, Gene Smith, or anyone

acting in his behalf deliberately acted to frustrate DNR review and approval

process.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has jurisdiction in this

proceeding pursuant to section 120.57(1), Florida Statutes.

32. The burden of proof is on the applicant to show that he is entitled to

a permit or consent for use required to keep his dock. Florida Department of

Transportation v. J.W.C. Co. 396 So.2d 778 (Fla. 1st DCA 1981) . In this case,

he has met that burden.

33. Section 258.42, F.S. provides that the Board of Trustees of the

Internal Improvement Trust Fund shall maintain designated aquatic preserves

subject to the following relevant provisions:

(e) There shall be no erection of structures

within the preserve, except:

1. Private residential docks may be approved

for reasonable ingress or egress of riparian

owners.

2. Private residential multislip docks may

be approved if located within a reasonable

distance of a publicly maintained navigation

channel, or a natural channel of adequate

depth and width to allow operation of the

watercraft for which the docking facility is

designed without the craft having an adverse

impact on marine resources. The distance

shall be determined in accordance with

criteria established by the trustees by rule,

based on a consideration of the depth of the

water, nature and condition of bottom, and

presence of manatees.

34. Section 258.43(1), F.S. provides:

258.43 Rules and regulations.--

(1) The Board of Trustees of the Internal

Improvement Trust Fund shall adopt and

enforce reasonable rules and regulations to

carry out the provisions of this act and

specifically to provide regulation of human

activity within the preserve in such a manner

as not to unreasonably interfere with lawful

and traditional public uses of the preserve,

such as sport and commercial fishing, boating

and swimming.

35. Because different criteria apply, the threshold issue is whether the

dock is a private residential single family dock or a private residential multi-

slip dock, defined respectively as follows in rule 18-20.003, F.A.C.:

(43) "Private residential single-family

dock" means a dock which is used for private,

recreational or leisure purposes for a single

family residence, cottage or other such

single dwelling unit and which is designed to

moor no more than two boats.

(44) "Private residential multi-slip dock"

means a docking facility which is used for

private recreational or leisure purposes for

multi-unit residential dwellings which shall

include but is not limited to condominiums,

townhouses, subdivisions and other such

dwellings or residential areas and which is

designed to moor three or more boats. Yacht

clubs associated with residential

developments, whose memberships or

utilization of the docking facility requires

some real property interests in the

residential area, shall also be included.

36. In the course of the hearing it became apparent that the applicant and

owner is Gene Smith, not the homeowners' association, and that the number of

slips is limited to two. The criteria for a single-family dock should apply.

The conditions recommended by DNR staff as described in paragraph 26, above, are

consistent with those criteria.

37. Relevant regulatory criteria are provided in rule 18- 20.004, F.A.C.:

(4) RIPARIAN RIGHTS

(a) None of the provisions of this rule

shall be implemented in a manner that would

unreasonably infringe upon the traditional

common law and statutory riparian rights of

upland riparian property owners adjacent to

sovereignty lands.

(b) The evaluation and determination of the

reasonable riparian rights of ingress and

egress for private, residential multi-slip

docks shall be based upon the number of

linear feet of riparian shoreline.

(c) For the purpose of this rule, a private

residential, single-family docking facility

which meets all the requirements of Rule 18-

20.004 (5) shall be deemed to meet the public

interest requirements of Rule 18-

20.004(1)(b), Florida Administrative Code.

However, the applicants for such docking

facilities must apply for such consent and

must meet all of the requirements and

standards of this rule chapter.

(5) STANDARDS AND CRITERIA FOR DOCKING

FACILITIES

(a) All docking facilities, whether for

private residential single-family docks,

private residential multi-slip docks, or

commercial, industrial, or other revenue

generating/income-related docks or public

docks or piers, shall be subject to the

following standards and criteria:

1. no dock shall extend waterward of the

mean or ordinary high water line more than

500 feet or 20 percent of the width of the

waterbody at that particular location

whichever is less;

(b) Private residential single-family docks

shall conform to the following specific

design standards and criteria:

1. any main access dock shall be limited to

a maximum width of four (4) feet;

2. the dock decking design and construction

will insure maximum light penetration. with

full consideration of safety and

practicality;

3. the dock will extend out from the

shoreline no further than to a maximum depth

of minus four (-4) feet (mean low water);

4. when the water depth is minus four (-4)

feet (mean low water) at an existing bulkhead

the maximum dock length from the bulkhead

shall be 25 feet, subject to modifications

accommodating shoreline vegetation overhang;

5. wave break devices, when necessary, shall

be designed to allow for maximum water

circulation and shall be built in such a

manner as to be part of the dock structure;

6. terminal platform size shall be no more

than 160 square feet;

7. if a terminal platform terminates in a

Resource protection Area 1 or 2, the platform

shall be elevated to a minimum height of five

feet above mean or ordinary high water.

Reasonable alterations to the height

requirement may be authorized to facilitate

access between the terminal platform and the

vessel;

8. docking facilities in a Resource

Protect ion Area 1 or 2 shall only be

authorized in locations having adequate

existing water depths in the boat mooring,

turning basin, access channels, and other

such areas which will accommodate the

proposed boat use in order to insure that a

minimum of one foot clearance is provided

between the deepest draft of a vessel and the

top of any submerged resources at mean low

water; and

9. dredging to obtain navigable water depths

in conjunction with private residential,

single-family dock applications is strongly

discouraged.

(e) Exceptions to the standards and criteria

listed in Rule 18-20.004(5), Florida

Administrative Code, may be considered, but

only upon demonstration by the applicant that

such exceptions are necessary to insure

reasonable riparian ingress and egress.

(emphasis added)

38. Although the focus of evidence was on the violation of the "20 percent

rule", other criteria described above should be waived under the unique

circumstances of the case, and with the conditions recommended below.

39. This conclusion is based on an acknowledgment of the sovereign,

proprietary interest of the Board of Trustees under the "Public Trust Doctrine",

discussed in Board of Trustees of the Internal Improvement Trust Fund and

Florida Department of Environmental Protection v. Kenneth Levy, 20 Fla. Law

Weekly D1522 (First DCA opinion dated 6/27/95). That interest is balanced with

the riparian rights of the applicant.

40. Those riparian rights include boating. As supported by the evidence

in this case, the length of the dock is the minimum necessary to permit boating

without damage to the sandy bottom and more distant seagrasses. The terminal

platform is the only appropriate portion of the dock for mooring of boats, and

raising it would preclude safe embarkation. The width and spacing of the main

access dock has been approved by the various environmental agencies with

concurrent jurisdiction over the project.

41. While the facts and law do not support an argument that the agency is

now estopped from requiring the dock be removed or substantially altered, some

consideration should be given to the good faith confusion by the applicant

regarding the permit process. Since the two agencies, DNR and DER, are now

combined in a single Department of Environmental Protection, the future need to

address such confusion is obviated. Waiver in this case should not create an

undesirable precedent.

42. The conditions recommended below are based on consideration of the

agency's concern that boats be discouraged from entering shallow water and the

agency's concern regarding future maintenance of the dock.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED:

That a final order be entered, granting a consent of use to Gene Smith, or

his successors, for the dock facility described in DER permit no. 05-168716-4,

with these conditions:

a) that he shall comply with all terms,

conditions or restrictions of any other

governmental authorities having jurisdiction

over the project;

b. that he assume full responsibility for

future maintenance of the dock;

c) that no more than two boat slips be

maintained;

d) that those slips be confined to the

terminal end of the dock; and

e) that guardrails along the main walkway be

constructed to limit boat access to the dock

except at the terminal end.

DONE AND ENTERED this 10th day of August, 1995, in Tallahassee, Florida.

___________________________________

MARY W. CLARK, 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 August, 1995.

APPENDIX

APPENDIX The following constitute specific rulings on the findings of fact

proposed by the parties:

Petitioners' Proposed Findings

1. Adopted in Paragraphs 1 and 4.

2-6. Adopted in paragraph 5.

7-8. Adopted in Paragraph 6.

9-13. Adopted in substance in Paragraphs 7-9.

14. Adopted in Paragraph 10.

15. Adopted in substance in Paragraph 11.

16-17. Adopted in substance in Paragraphs 12 and 13.

18. Adopted in Paragraph 14.

19. Adopted in substance in Paragraph 17.

20. Adopted in substance in Paragraph 15.

21-23. Adopted in substance in Paragraphs 19 and 20.

24. Adopted in substance in Paragraph 21.

25-32. Adopted in summary in Paragraphs 22 and 30, otherwise

rejected as unnecessary.

33-36. Adopted in Paragraph 28.

Respondent's Proposed Findings

1. Adopted in Paragraph 3.

2 & 3. Adopted in Paragraphs 1 and 2.

4-6. Adopted in Paragraph 4.

7. Adopted by implication in Paragraph 29.

8. Adopted in Paragraphs 1 and 2.

9 & 10. Adopted in Paragraph 13. However, Smith and Hefley

were also applicants. See Paragraphs 12 and 24.

11 & 12.Adopted in Paragraph 5.

13. Adopted in Paragraph 9.

14 & 15.Adopted in Paragraph 10.

16. Adopted in Paragraphs 12 and 16.

17. Adopted in Paragraph 13.

18. Rejected as unsupported by competent evidence. It is

clear that after the DER permit was received and the

dock was built, Hefley received notice from DNR, but

the record does not establish that the letter, however

dated, was received in September or October 1989.

19. Adopted in Paragraph 15.

20. Adopted in substance in Paragraph 20.

21-22. Adopted in Paragraph 16.

23. Adopted by implication in Paragraph 29.

24-27. Adopted in Paragraph 25.

28. Adopted in Paragraph 28.

29. Rejected as unnecessary.

30. Rejected as summary of testimony.

31. Adopted in Paragraph 29.

32. Adopted in Paragraph 26.

33. Adopted by implication in Paragraph 25.

34. Rejected as unsupported by the evidence, except for the

finding that boats have been docked at the site, which

is accepted.

35. Adopted in Paragraph 27.

36. Adopted in substance in Paragraph 24.

37. Adopted in Paragraph 25.

38. Adopted in Paragraph 27.

39. Rejected a contrary to the weight of evidence, which

evidence establishes that the water is four (4) feet

deep at the terminal end of the dock.

40. Rejected as unnecessary, except that in this instance,

Smith is an individual owner seeking consent for a

single-family dock. See Conclusion of Law, Paragraph

36.

COPIES FURNISHED:

Allen C. D. Scott, II

120 Commercial Avenue

Federal Point, Florida 32131

M. B. Adelson, IV

Assistant General Counsel

Department of Environmental

Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary

Department of Environmental

Protection

Douglas Building

3900 Commonwealth Blvd.

Tallahassee, Florida 32399-3000

Kenneth Plante, General Counsel

Department of Environmental

Protection

Douglas Building

3900 Commonwealth Blvd.

Tallahassee, Florida 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.