96-000870 Arthur Pivirotto And Ann H. Pivirotto vs. Joint Facilities Board Of River Oaks Homeowners Association, Inc., Little Oaks Homeowners Association, Inc. Status: Closed Recommended Order on Friday, August 2, 1996.

Summary: Petitioners failed to offer any evidence on issues within jurisdiction of South Florida Water Management District.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR PIVIROTTO & ANN H. PIVIROTTO, )

)

Petitioners, )

)

vs. ) CASE NO. 96-0870

)

JOINT FACILITIES BOARD OF RIVER OAK'S )

H.O.A. AND LITTLE OAKS H.O.A. and )

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, )

)

Respondents. )

__________________________________________)

LARRY VIENS, DEBORAH VIENS, and THE )

LOXAHATCHEE LANDING PROPERTY OWNERS )

ASSOCIATION, )

)

Petitioners, )

)

vs. ) CASE NO. 96-0871

)

JOINT FACILITIES BOARD OF RIVER OAKS )

H.O.A. AND LITTLE OARS H.O.A. and )

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, )

)

Respondents. )

__________________________________________)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J.

Sartin, Hearing Officer, on June 27, 1996, in West Palm Beach,

Florida

APPEARANCES

For Petitioners: Arthur Pivirotto and Ann H Pivirotto:

William A. Fleck, Esquire

KRAMER, ALI, LAMBERT, FLECK & CAROTHERS

Attorneys at Law

6650 West Indiantown Road, Suite 200

Jupiter, Florida 33458

and

Charles H. Burns, Esquire

1080 East Indiantown Road

Jupiter, Florida 33477

For Respondent: South Florida Water Management District:

Scott Allen Glazier, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

For Respondents, Joint Facilities Board of River Oaks

H.O.A.

and Little Oaks H.O.A.:

Donald S. Fradley, Esquire

27 Pennock Lane

Jupiter, Florida 33458

STATEMENT OF THE ISSUE

The issue in this case is whether an Application to the

South Florida Water Management District for Authority to Utilize

Works or Land of the District filed by Respondents, Joint

Facilities Board of River Oaks H.O.A. and Little Oaks H.O.A.,

should be approved by the South Florida Water Management

District.

PRELIMINARY STATEMENT

Respondents, Joint Facilities Board of River Oaks H.O.A.

and Little Oaks H.O.A. filed an Application to the South Florida

Water Management District for Authority to Utilize Works or Land

of the District. The application was designated Right of Way

Occupancy Permit Application Number 94-1005-2. After review of

the application, the South Florida Water Management District

proposed to approve the application and issue the right of way

occupancy permit sought by the Joint Facilities Board.

On or about February 9, 1996, Petitioners in case number

96-0870, Arthur Pivirotto and Ann H. Pivirotto, filed a Petition

for Formal Proceedings per 40E-1.521, F1. Admin. Code and 120.57

F.S. On or about the same date, Petitioners in case number 96-

0871, Larry Viens, Deborah Viens and The Loxahatchee Landing

Property Owners Association, Inc., filed a Petition for formal

Proceedings per 40E-1.521 F. Admin. Code and 120.57 F.S. Both

petitions challenged the decision to grant the application.

The South Florida Water Management District filed both

petitions with the Division of Administrative Hearings on

February 20, 1996. The petition filed by the Pivirottos was

designated case number 96-0870. The petition filed by the Viens

and The Loxahatchee Landing Property Owners Association, Inc.,

was designated case number 96-0871. Both case were assigned to

Hearing Officer Joyous D. Parrish.

By Order of Consolidation entered March 13, 1996, Hearing

Officer Parrish consolidated the two cases. By Amended Notice

of Hearing, Hearing Officer Parrish scheduled the final hearing

of these case for June 27, 1996.

Both cases were transferred to the undersigned on June 24,

1996.

On June 19, 1996, the parties in case number 96-0870 filed

a Parties' Joint Prehearing Statement. The parties included a

Statement of Controversy, a Statement of Basic Positions, a list

of proposed exhibits, a list of witnesses, and a request that

official recognition of Chapter 373, Florida Statutes, and

Chapters 40E-6 and 40E-62, Florida Administrative Code, be

taken. The request for official recognition was granted.

The parties also stipulated in the Parties' Joint

Prehearing Statement to the issues of law and fact which the

parties were in agreement on and the issues of law and fact

which were in dispute.

At the commencement of the formal hearing, a Stipulation

for Settlement was filed in case number 96-0871. Pursuant to

the Stipulation, the parties in case number 96-0871 resolved

their dispute. The Stipulation is to take effect "upon adoption

by and execution on behalf of the Governing Board of the

District . . . ." The Stipulation is to be submitted to the

'District's Governing Board . . . at its regulatory meeting

scheduled for August 15, 1996 (or the next regularly scheduled

meeting, after the Division of Administrative Hearings

relinquishes jurisdiction for Governing Board consideration of

this Stipulation)." The South Florida Water Management District

requested that jurisdiction over case number 96-0871 be

relinquished at the same time that this Recommended Order is

entered. Jurisdiction over case number 96-0871 will be

relinquished simultaneously with the entry of this Recommended

Order.

Both the South Florida Water Management District and the

Joint Facilities Board filed a Motion to Strike and Motion in

Limine just prior to the formal hearing. These motions were

provided to the undersigned at the commencement of the formal

hearing. The motions suggested that issues of law and fact

which the parties stipulated remained in dispute involved

matters over which the South Florida Water Management District,

and, thus, the Division of Administrative Hearings, had no

jurisdiction. Respondents requested that those issues and

disputed facts be struck. After hearing argument of the parties

on the motions, the motions were granted.

Following the ruling on the motions to strike and motions

in limine, Petitioners in case number 96-0870 proffered ten

exhibits. The South Florida Water Management District proffered

one exhibit. Petitioners offered no other evidence.

Prior to the commencement of the formal hearing,

Respondents, Joint Facilities Board of River Oaks H.O.A., and

Little Oaks H.O.A., filed a Motion for Attorney's Fees, seeking

attorney fees from Petitioners. Petitioners filed a Motion for

Attorney's Fees seeking attorney fees from the Joint Facilities

Board. After consideration of the motions, they are both

denied.

A transcript of the formal hearing was filed on July 17,

1996. Petitioners and the South Florida Water Management

District filed proposed orders on or before July 17, 1996.

Petitioners' proposed order does not contain any proposed

findings of fact. The South Florida Water Management District's

proposed order contains two proposed findings of fact. Both

proposed findings are hereby accepted.

FINDINGS OF FACT

1. Petitioners, Arthur Pivirotto and Ann H. Pivirotto

presented no evidence in this matter.

2. Petitioners have, therefore, failed to meet their

burden of proof that Right of Way Occupancy Permit Application

Number 94-1005-2 should not be granted.

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject matter of this

proceeding. Section 120.57, Florida Statutes (1995).

4. Section 373.085, Florida Statutes, authorizes water

management district governing boards to prescribe the manner in

which the works and lands of the water management district may

be used by others and the issuance of permits therefore. The

criteria for such use have been established by the South Florida

Water Management District in Rule 40E-6.091, Florida

Administrative Code.

5. The conditions for obtaining a right of way permit of

the kind sought by the Joint Facilities Board of River Oaks

H.O.A. and Little Oaks H.O.A. have been established in Rule 40E-

6.301, Florida Administrative Code.

6. Mr. and Ms. Pivirotto had the burden of proving in this

proceeding that the South Florida Water Management District's

decision to issue a right of way permit was contrary to the

statutes and/or rules governing the issuance of right of way

permits and the use of works and lands of the South Florida

Water Management District. See Rule 40E-1.544, Florida

Administrative Code. See also, Florida Department of

Transportation v. J.W.C. Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981).

7. The issues raised by Mr. and Ms. Pivirotto in the

Parties' Joint Prehearing Statement involved matters and issues

which the South Florida Water Management District is not

required or authorized to consider pursuant to Chapter 373,

Florida Statutes, or Chapters 40E-6 or 40E-62, Florida

Administrative Code.

8. No proof was offered by Mr. and Ms. Pivirotto to

support a finding that the decision to issue the right of way

permit in this matter is not consistent with the statues and

rules governing its issuance and governing the use of works and

lands of the South Florida Water Management District.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the South Florida Water Management

District enter a Final Order in case number 96-0870 dismissing

the Petition for Formal Proceedings Per 40E-1.521 Fl. Admin.

Code and 120.57 F.S.

DONE and ENTERED this 2nd day of August, 1996, in

Tallahassee Florida.

___________________________________

LARRY SART1N, 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 2nd day of August, 1996.

COPIES FURNISHED:

William A. Fleck, Esquire

6650 West Indiantown Road

Suite 200

Jupiter, Florida 33458

Charles H. Burns, Esquire

1080 East Indiantown Road

Jupiter, Florida 33477

Scott Allen Glazier, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

Donald S. Fradley, Esquire

27 Pennock Lane

Jupiter, Florida 33458

Alan J. Cooper, Esquire

Tequesta Corporate Center

250 Tequesta Drive, Suite 200

Tequesta, Florida 33469

Samuel E. Poole, III, Executive Director

Department of Environmental Protection

South Water Management District

Post Office Box 24680

West Palm Beach, Florida 33146

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.