98-003053 South Florida Water Management District vs. Jesus G. Quevedo Status: Closed Recommended Order on Monday, March 8, 1999.

Summary: Respondent`s permit cross-fence is inconsistent with legislative declared policy and interferes with public use of District`s works (right-of-way). Moreover, no unreasonable safety risk exists by allowing public access to right-of-way. Revoke permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Petitioner, )

)

vs. ) Case No. 98-3053

)

JESUS G. QUEVEDO, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 21, 1998, at West Palm Beach, Florida, before Errol H.

Powell, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Scott Allen Glazier, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416

For Respondent: Larry M. Mesches, Esquire

Koepel, Gottlieb, Mesches,

Herzfeld & Rubin

222 Lakeview Avenue, Suite 260

West Palm Beach, Florida 33401-6146

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner's

revocation of Respondent's modified permit, authorizing a cross-

fence on Petitioner's fee owned right-of-way, should be approved.

PRELIMINARY STATEMENT

On May 13, 1998, the South Florida Water Management District

(District) served an Administrative Complaint and Order and

Notice of Intent to Revoke Permit Modification upon Jesus G.

Quevedo. On May 27, 1998, Mr. Quevedo, by and through his

counsel, disputed the allegations of fact and requested a formal

hearing. On July 15, 1998, this matter was referred to the

Division of Administrative Hearings.

Prior to hearing, the parties filed a joint prehearing

statement which contained, among other things, statutory and rule

provisions, of which official recognition was requested to be

taken, and stipulated facts. At hearing, official recognition

was taken of the statutory and rule provisions. 1

At hearing, 2 the District presented the testimony of five

witnesses and entered four exhibits into evidence (Petitioner's

Exhibits numbered 1-4). Mr. Quevedo testified in his own behalf,

presented the testimony three witness and entered eleven exhibits

into evidence (Respondent's Exhibits numbered 1-3 and 5-12). One

of Mr. Quevedo's exhibits was rejected (Respondent's Exhibit

numbered 4) and portions of another exhibit were rejected

(Respondent's Exhibit numbered 6(B), (C), (D), (E), (F), (G),

(H), (I), (J), (S), and (T)).

A transcript of the hearing was ordered, which consisted of

two volumes (Volumes I and II), and the time for filing of post-

hearing submissions was set for December 15, 1998. Subsequently,

the parties were granted an extension of time up to and including

January 4, 1999. The parties timely filed post-hearing

submissions which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. The South Florida Water Management District (District)

is a public corporation in the State of Florida, existing by

virtue of Chapter 25270, Laws of Florida (1949), and operating

pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida

Administrative Code, as a multi-purpose water management

district. The District's principal office is West Palm Beach,

Florida.

2. In executing its multi-purpose, the District, as local

sponsor for the US Army Corps of Engineers' Central and Southern

Florida Flood Control Project, acquired canal rights-of-way. The

District's rights-of-way were acquired to enable the Corps of

Engineers to construct the flood control project and to maintain

the system after its construction.

3. The District operates a proprietary-based right-of-way

program to manage the various property interests of the canal

rights-of-way. The purpose of the District's right-of-way

program is, to the extent possible, to allow uses of the rights-

of-way that do not conflict with the flood control project. The

rights-of way are used by both public and private concerns,

including adjacent property owners, governmental entities, and

utility companies.

4. Jesus G. Quevedo is a private individual. His address

is 2615 North Federal Highway, Lake Worth, Florida. The property

at this address was vacant when Mr. Quevedo purchased it, and he

has owned the property for approximately ten (10) years.

5. The District has fee simple title to a strip of land on

the south side of the District's C-51 Canal, immediately west of

the Federal Highway/Olive Avenue bridge (C-51 Right-of-Way).

Mr. Quevedo's property is located at the side of and adjacent to

the C-51 Right-of-Way.

6. The C-51 Right-of-Way is also located within the

boundaries of Spillway Park as established in the agreement

between the District and the City of Lake Worth. Generally

described, Spillway Park includes the District's fee simple owned

right-of-way on the south side of the District's C-51 Canal,

beginning at the west side of the Federal Highway/Olive Avenue

bridge and continuing to the east side of the Dixie Highway

bridge.

7. Mr. Quevedo has no real property interest in the C-51

Right-of-Way.

8. Prior to purchasing his property, Mr. Quevedo was aware

that the District owned the C-51 Right-of-Way.

9. Historically, portions of Spillway Park and the C-51

Right-of-Way, in particular, have been a unique and popular

location for excellent snook fishing by the public. These areas

continue to be considered as such.

10. On February 11, 1993, Mr. Quevedo was issued SFWMD

Permit No. 9801 (Permit), a right-of-way occupancy permit, by the

District’s Governing Board. The Permit authorized him to make

use of the District’s lands and works as follows:

20’ X 50’ BOAT DOCK WITH WALKWAY, BURIED

WATER AND ELECTRICAL SERVICE, POP-UP

SPRINKLERS, AND SODDING WITHIN THE SOUTH

RIGHT OF WAY OF C-51 LOCATED IMMEDIATELY WEST

OF THE OLIVE AVENUE/FEDERAL HIGHWAY BRIDGE.

11. During the permit application process, but prior to the

issuance of the Permit, Mr. Quevedo had discussed with the

District's staff the erection of a cross-fence based on

allegations of improper or criminal activities by members of the

public. Subsequently, in November 1995, Mr. Quevedo again

discussed with the District's staff erection of a cross-fence

based on the same allegations but he also included a new

allegation of public safety as to the C-51 seawall.

12. Based on the concern for public safety, the District's

staff recommended that Mr. Quevedo be granted a modification to

the Permit for a cross-fence. On November 14, 1996, the

District's Governing Board approved, as part of its consent

agenda, and issued SFWMD Permit MOD No. 9801 (MOD Permit) 3

authorizing the following:

CHAIN LINK CROSS FENCE WITH 16’ VEHICULAR

GATE ALONG THE WEST PROPERTY LINE WITHIN THE

SOUTH RIGHT OF WAY OF C-51 LOCATED AT 2615

NORTH FEDERAL HIGHWAY.

13. The MOD Permit, as did the Permit, provides in

pertinent part on its face the following:

The permittee, by acceptance of this permit,

hereby agrees that he shall promptly comply

with all orders of the District and shall

alter, repair or remove his use solely at his

expense in a timely fashion. . . .

This permit is issued by the District as a

license to use or occupy District works or

lands. . . By acceptance of this permit, the

permittee expressly acknowledges that the

permittee bears all risk of loss as a result

of revocation of this permit.

14. The MOD Permit, as did the Permit, contained standard

limiting conditions, as provided in Rule 40E-6.381, Florida

Administrative Code, and special conditions. The limiting

conditions provide in pertinent part as follows:

(2) Permittee agrees to abide by all of the

terms and conditions of this permit,

including any representations made on the

permit application and related

documents. . . .

(3) This permit does not create any vested

rights, and except for governmental entities

and public or private utilities, is revocable

at will upon reasonable prior written notice.

Permittee bears all risk of loss as to monies

expended in furtherance of the permitted use.

Upon revocation, the permittee shall promptly

modify, relocate or remove the permitted use.

In the event of failure to so comply within

the specified time, the District may remove

the permitted use and permittee shall be

responsible for all removal costs.

(4) This permit does not convey any property

rights nor any rights or privileges other

than those specified herein. . . .

15. Having been granted the MOD Permit, Mr. Quevedo erected

the cross-fence within and onto the C-51 Right-of-Way.

16. The C-51 Right-of-Way is located adjacent to

Mr. Quevedo’s property, as indicated earlier, and continues

westerly to the permitted cross-fence. The C-51 Right-of-Way is

enclosed by the cross-fence, preventing access by the public, and

is located easterly of the cross-fence. As the C-51 Right-of-Way

is located within the boundaries of the Spillway Park, the cross-

fence is also located within the boundaries of the Spillway Park.

17. During the time that Mr. Quevedo has owned his home,

including prior to and after erection of the cross-fence, he, his

family members and/or guests have frequently fished from the C-51

seawall and used the C-51 Right-of-Way enclosed by the cross-

fence.

18. Prior to and after the erection of the cross-fence,

Mr. Quevedo and his family members have selectively controlled

access by the public to the C-51 Right-of-Way at the C-51

seawall.

19. Prior to the erection of the cross-fence, Mr. Quevedo

chased members of the public off the C-51 Right-of-Way.

Mr. Quevedo and members of his family also called law enforcement

officers to remove members of the public who were located on the

C-51 Right-of-Way, even if the members of the public were fishing

from the C-51 seawall.

20. After the erection of the cross-fence, Mr. Quevedo and

his family members continued to engage in this conduct of

selective access.

21. Subsequent to the erection of the cross-fence,

Mr. Quevedo had a member of the public arrested for trespassing.

The person allegedly jumped over or went around the cross-fence

to fish from the C-51 seawall in the C-51 Right-of-Way.

22. With the existence of the cross-fence, Mr. Quevedo has

prevented the general public from using the C-51 Right-of-Way,

including the C-51 seawall. As a result, he has acquired the

exclusive, private use of the C-51 Right-of-Way at the C-51

seawall, which is publicly owned land, and has, almost doubled

the size of his adjacent property without the obligations and

expense of acquisition, assuming he could acquire the property

through acquisition.

23. The District's policy is that public land should be

open to the public. Contrary to this policy, Mr. Quevedo's

cross-fence precludes access to the District's right-of-way (C-51

Right-of-Way), including the seawall, for passive recreational

use.

24. Similar cross-fencing, although not within the

boundaries of Spillway Park, have been erected behind residences

on the northeast, northwest, and southeast sides of Federal

Highway, along the District’s C-51 Canal bank. The cross-fencing

prevents public use of the District’s C-51 Canal bank at these

locations.

25. The City of Lake Worth made improvements within the

boundaries of Spillway Park; however, it made no improvements,

and does not intend to make any improvements in the future, at

the C-51 Right-of-Way where Mr. Quevedo’s cross-fence is located

or at the other private lots west of Mr. Quevedo's property. All

of the improvements made at Mr. Quevedo’s cross-fence at the C-51

Right-of-Way have been made by him even though the C-51 Right-of-

Way is located within Spillway Park.

26. The original public safety rationale for authorizing

Mr. Quevedo to erect the cross-fence blocking public access was

revisited by the District. Additional investigation by safety

experts (Risk Management staff) revealed that no unreasonable

danger existed by allowing public access to the C-51 seawall at

the C-51 Right-of-Way.

27. In the absence of the public safety basis for closure

of the C-51 Right-of-Way, such closure was contrary to District

policy. As a consequence, the District’s staff recommended to

the District’s Governing Board that the MOD Permit, authorizing

Mr. Quevedo’s cross-fence, be revoked.

28. After conducting two public meetings and receiving

comments from Mr. Quevedo, members of the public, and the

District’s staff as to the policy issue of pubic access to the C-

51 Right-of-Way, the District’s Governing Board determined that

the C-51 Right-of-Way should be open to the public.

Consequently, the Governing Board decided to revoke Mr. Quevedo's

MOD Permit.

29. Allegations of criminal activity within the general

boundaries of Spillway Park and, specifically, in the C-51 Right-

of-Way at the cross-fence area, were made by Mr. Quevedo as a

basis to not revoke the MOD Permit and allow the cross-fence to

remain. Such allegations have no bearing on the revocation of

the MOD Permit.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over this matter and the parties thereto pursuant to

Section 120.569 and Subsection 120.57(1), Florida Statutes.

31. The District is authorized by Part I, Chapter 373,

Florida Statutes, to provide for District works in order to

accomplish the purposes and policies set forth in Chapter 373,

Florida Statutes.

32. Section 373.016, Florida Statutes, provides in

pertinent part:

(3) It is further declared to be the policy

of the Legislature:

* * *

(i) To promote recreational development,

protect public lands, and assist in

maintaining the navigability of rivers and

harbors; . . . .

33. Section 373.085, Florida Statutes, provides in

pertinent part:

(1) The governing board has authority to

prescribe the manner in which local works

provided by other districts or by private

persons will connect with and make use of the

works or land of the district, to issue

permits therefor, and to cancel the permits

for noncompliance with the conditions thereof

or for other cause. . . .

34. Section 373.086, Florida Statutes, provides in

pertinent part:

(1) In order to carry out the works for the

district, and for effectuating the purposes

of this chapter, the governing board is

authorized . . . to cross any highway or

railway with works of the district and to

hold, control, and acquire by donation,

lease, or purchase, or to condemn any land,

public or private, needed for rights-of-way

or other purposes, and may remove any

building or other obstruction necessary for

the construction, maintenance, and operation

of the works; and to hold and have full

control over the works and rights-of-way of

the district.

35. Rule 40E-6.011, Florida Administrative Code, provides

in pertinent part:

(1) This chapter governs the use of or

connection to works or lands of the District.

Conditions and criteria are established to

ensure that uses are compatible with the

construction, operation, and maintenance of

such works or lands.

(2) Due to the critical importance of works

and lands of the District in providing flood

protection and other benefits, it is

considered essential that the District retain

complete dominion and control over the use of

such works and lands, including those subject

to occupancy permits. The District acts in a

proprietary capacity in acquiring lands or

interests therein for utilization as works of

the District. These rules are based upon

proprietary concepts of property law. A

“permit” to utilize works or lands of the

District is a contract between the District

and the “permittee,” whereby the permittee

obtains a license which is revocable at will,

except as otherwise provided herein. All

risk of loss regarding expenditures in

futherance of the permitted use is borne by

the permittee. The District retains complete

discretion as to the manner, if any, in which

District works or lands may be utilized, and

nothing in these rules is intended to limit

that discretion.

* * *

(4) The terms “permit” or “occupancy permit”

when used in these rules are intended to mean

a contractual license to occupy the works or

lands of the District.

36. Rule 40E-6.301, Florida Administrative Code, regarding

the issuance of permits, provides in pertinent part:

(1) In determining whether an occupancy

permit should be issued, the District shall

consider whether the proposed activity:

* * *

(b) is consistent with the policy and

objectives of Chapter 373, F.S., the

legislative declaration of policy contained

in Section 373.016, F.S. . . .

* * *

(j) interferes with actual or potential

public use of the District’s works or public

recreational or other facilities not within

the District’s works . . . .

37. Standard limiting conditions, set forth in Rule 40E-

6.381, Florida Administrative Code, are placed upon and included

within all District right-of-way occupancy permits authorizing

the use of District works and lands. Rule 40E-6.381, Florida

Administrative Code, provides in pertinent part:

The District’s authorization to utilize lands

and other works constitutes a revocable

license. In consideration for receipt of

that license, permittees shall agree to be

bound by the following standard limiting

conditions, which shall be included within

all permits issued pursuant to this chapter.

* * *

(3) This permit does not create any vested

rights, and except for governmental entities

and public or private utilities, is revocable

at will upon reasonable prior written notice.

Permittee bears all risk of loss as to monies

expended in furtherance of the permitted use.

Upon revocation, the permittee shall promptly

modify, relocate or remove the permitted use.

In the event of failure to so comply within

the specified time, the District may remove

the permitted use and permittee shall be

responsible for all removal costs.

(4) This permit does not convey any property

rights nor any rights or privileges other

than those specified herein. . . .

38. As to the District’s general rule for the revocation of

permits, including right-of-way occupancy permits, Rule 40E-

1.609, Florida Administrative Code, provides in pertinent part:

(2) The District may revoke a permit or

modify its terms and conditions when it

determines that such action is necessary to

protect the public health, safety and

welfare, prevent a public or private

nuisance, or when the continued utilization

of the permit becomes inconsistent with the

objectives of the District. In such

instances, due consideration shall be given

to the extent to which the permittee has

detrimentally relied upon the permit.

39. Moreover, Rule 40E-6.341, Florida Administrative Code,

provides in pertinent part:

(1) [T]he District is authorized to revoke

an occupancy permit under any of the

following circumstances:

* * *

(d) the permitted use is inconsistent with

the factors and conditions enumerated in

section 40E-6.301, F.A.C.

40. The District demonstrated that the revocation of Mr.

Quevedo’s modified permit is warranted and that the conditions

for revocation have been met. Mr. Quevedo's cross-fence prevents

the promotion of recreational development and is, therefore,

inconsistent with the legislative declaration of policy

enunciated at Section 373.016, Florida Statutes. Furthermore,

his cross-fence interferes with the actual and potential use of

the public use of the District's works and is, therefore,

inconsistent with Rule 40E-6.301, Florida Administrative Code.

The District demonstrated that Mr. Quevedo’s present use and

occupancy of the District’s right-of-way (District’s C-51 Right-

of-Way) precludes all public access and use of the portion of the

District’s right-of way located within Spillway Park and adjacent

to Mr. Quevedo’s home; that that portion of the District’s right-

of-way has been historically and continues to be a unique and

popular location for excellent snook fishing, which has been and

should continue to be enjoyed by the public; and that

Mr. Quevedo’s preclusion of all public access and use of that

portion of the District’s right-of-way is contrary to the

District’s policy.

41. Moreover, the District demonstrated that, contrary to

Mr. Quevedo’s assertion of a safety risk by allowing public use,

no unreasonable safety risk exists by allowing public access to

that portion of the District’s right-of-way.

42. As to detrimental reliance by Mr. Quevedo upon the

permit, he was aware, before erecting the cross-fence and making

any improvements on the permitted property and the C-51 Right-of-

Way, that any such improvements would be at his own expense.

Moreover, Mr. Quevedo's conduct shows that he considered the

Permit and the MOD Permit not as a license granted by the

District to use the District's right-of-way, but the granting to

him of a proprietary right in the right-of-way, giving him

additional private property, which allowed the use of the right-

of-way, not by the general public, but by only those who he or

his family chose. The District has demonstrated that

Mr. Quevedo’s claim for damages, relating to expenditures by him,

is unreasonable.

43. Mr. Quevedo has advanced an argument that addresses the

invalid exercise of delegated legislative authority as to all or

a portion of the District's rules governing the issuance of

permits, the use of District property, and the revocation of

permits for the use of District property. Mr. Quevedo cites

Subsection 120.52(8), Florida Statutes, as the authority for this

position. This instant proceeding is not a rule challenge and

is, therefore, not a proper proceeding for challenging a rule or

rules as invalid exercise of delegated legislative authority.

44. Even assuming that Mr. Quevedo's allegations of

criminal activity within the general boundaries of Spillway Park

and, specifically, in the C-51 Right-of-Way at the cross-fence

area are considered pertinent to the revocation of the MOD

Permit, the allegations are insufficient to support non-

revocation of the MOD Permit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the South Florida Water Management District

enter a final order revoking SFWMD Permit No. MOD 981 issued to

Jesus G. Quevedo.

DONE AND ENTERED this 8th day of March, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of March, 1999.

ENDNOTES

1/ Mr. Quevedo requested official recognition to be taken of

certain court documents regarding the case of Chase Manhattan

Bank of Florida, N.A. v. South Florida Water Management District

and the Game and Freshwater Fish Commission , Case No. 94-346-CA

(Fla. 19th Cir. Ct. 1994). His request was denied.

2/ Mr. Quevedo alleged Florida Sunshine Law violations and made

nuisance claims in his Petition. This Administrative Law Judge

ruled at hearing that he lacked jurisdiction to decide Sunshine

Law violations and to decided nuisance claims. However, as to

nuisance claims, this ALJ ruled that testimony and evidence

regarding nuisance would be allowed and considered to the extent

that such testimony and evidence was considered by the District’s

Governing Board in making its revocation decision.

3/ When the approval of the cross-fence appeared on the

Governing Board's agenda, the public safety reason was not

mentioned in the agenda for the recommendation for approval.

However, what appeared in the agenda were the unlawful or

inappropriate activities by the members of the public.

COPIES FURNISHED:

Samuel E. Poole, III, Executive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416

Scott Allen Glazier, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416

Larry M. Mesches, Esquire

Koepel, Gottlieb, Mesches,

Herzfeld & Rubin

222 Lakeview Avenue, Suite 260

West Palm Beach, Florida 33401-6146

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.