03-002586 Harris J. Samuels vs. Juanette Imhoof And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, February 17, 2004.

Summary: Dock was built after regulatory exemption expired. Neighbor`s challenge led to in a de novo review of whether dock was exempt and if consent of use should issue. Recommended: dock is exempt, but placement within setback not completely justified.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRIS J. SAMUELS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2586

)

JUANETTE IMHOOF 1 and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

On December 9, 2003, a final administrative hearing was

held in this case in New Smyrna Beach, Florida, before J.

Lawrence Johnston, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Thomas D. Wright, Esquire

340 North Causeway

New Smyrna Beach, Florida 32169 - 5233

For Respondent Juanette Imhoff:

Albert E. Ford II, Esquire

994 Lake Destiny Road, Suite 102

Altamonte Springs, Florida 32714 - 6900

For Respondent Department of Environmental Protection:

Nona R. Schaffner, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUES

The issues in this case involve the status of a private,

single - family dock built by the late Edward Neal Imhoof and

his widow, Juanette Imhoo f, on the Indian River in New Smyrna

Beach, Florida.

PRELIMINARY STATEMENT

On August 8, 2000, the Department of Environmental

Protection (DEP) issued Edward Neal Imhoof a Notice of

Exemption for construction of a 628 - square - foot private,

single - family do ck on the Indian River in New Smyrna Beach,

Florida. The Notice of Exemption informed Mr. Imhoof, among

other things, that his proposed dock was "exempt from the need

for an Environmental Resource Permit (ERP) under Rule 40C -

4.051(11)(g), Florida Administ rative Code." However, it also

informed Mr. Imhoof that its regulatory exemption

"determination shall expire after one year." In a separate

authorization, it also informed him that his proposed dock

"qualifies for a consent to use sovereign, submerged la nds"

from the Board of Trustees of the Internal Improvement Trust

Fund (BOT). In relation to both authorizations, it also

informed Mr. Imhoof: " If you change the project from what you

submitted, the authorization(s) granted may no longer be valid

at the time of commencement of the project . Please contact us

prior to beginning your project if you wish to make any

changes ." (Emphasis in original.)

Mr. Imhoof did not commence construction of his proposed

dock until approximately April of 2003. On July 1, 2003,

Harris J. Samuels mailed DEP an Amended Petition for

Administrative Hearing (Amended Petition). It was not clear

from the referral whether there was an earlier petition or, if

so, when it was filed.

It was not clear from the Amended Petition wh ether

Petitioner was requesting an administrative hearing on

proposed agency action (to determine de novo whether

Mr. Imhoof's proposed dock should be exempt), or whether he

was requesting revocation of the exemption for construction

not consistent with th e exemption. The Amended Petition did

not articulate that the exemption expired before construction,

or take the position that Mr. Imhoof's dock was constructed

without the benefit of a valid regulatory exemption (or

permit) and BOT consent of use.

The Amended Petition was referred to the Division of

Administrative Hearings (DOAH) on July 17, 2003, and was

scheduled for final hearing in New Smyrna Beach, Florida, on

October 7, 2003. On September 22, 2003, a continuance was

granted to December 9, 2003.

In the days leading up to the final hearing, Petitioner

and Respondents filed separate, unilateral prehearing

statements. Comparing the statements, the parties seemed to

be largely in agreement, but they disagreed as to whether the

issue of interference with navigation was raised in the

Amended Petition and whether DOAH and DEP had jurisdiction to

determine real property and riparian rights issues raised in

the Amended Petition. Elaborating on the latter disagreement,

Respondents filed a Motion in Limine to Limit Consideration of

Certain Evidence (Motion in Limine) regarding real property

and riparian rights. On the day of the final hearing, a

Motion for Attorney's Fees and Costs also was filed on behalf

of Mr. Imhoof.

At the outset of the final hearin g, Juanette Imhoof was

substituted for her deceased husband. See Endnote 1. Then

the parties' respective prehearing statements were considered,

and interference with navigation was eliminated as an issue

because it was not raised in the Amended Petition. After

that, the Motion in Limine was considered. Petitioner

initially attempted to resolve the matter by agreeing not to

dispute the riparian rights lines adopted by Respondents in

this case 2 and not to contend in this case that the Imhoofs

were require d to deraign title to the Spanish land grant in

order to establish riparian rights. However, Petitioner

continued to contend that Mrs. Imhoof did not demonstrate

sufficient upland interest to establish riparian rights in

order to obtain BOT consent of use under Florida

Administrative Code Rule 18 - 21.004(3)(b). To the extent that

Petitioner's concessions might not completely resolve the

issue, ruling was reserved on Respondents' Motion in Limine.

Later in the hearing, it was ruled that deraignment of titl e

was

not required, and evidence of chain of title prior to the

Imhoofs' acquisition of the property was excluded.

Before presentation of evidence, burden of proof and

presentation of evidence were considered. Those questions

involved the nature of th e proceeding -- whether it was a de

novo hearing on the Imhoofs' original exemption application,

or a hearing on Petitioner's request to revoke an exemption.

Although the former seemed more likely, it was agreed that

Petitioner would proceed with presentati on of evidence and

that burden of proof would be decided later in the hearing or

in the Recommended Order.

During the final hearing, Petitioner testified in his own

behalf and also called the following witnesses: Lisa Prather

(f/k/a Lisa Moll), DEP Envi ronmental Manager; Daniel W. Cory,

a registered professional surveyor and mapper; Bud Hitchner,

the Imhoofs' dock building contractor; Chip Steele, the

Imhoofs' dock permitting consultant; Joe H. Young, III, a

biologist and environmental consultant; Juanet te Imhoof; and

David Purkerson, DEP Environmental Specialist II. During

Petitioner's presentation of evidence, he also had

Petitioner's Exhibits 1 - 17 and 19 admitted in evidence. 3 Mrs.

Imhoof called one witness, Jeanette Carstens, a predecessor in

title, and had Applicant Exhibits 1 - 8 and 10 admitted in

evidence. 4 DEP recalled Lisa Prather; called Carolyn R.

Schultz, a biologist and

environmental consultant; and had DEP Exhibit 1 admitted in

evidence.

After presentation of evidence, Mrs. Imhoof reque sted a

transcript of the final hearing, and the parties were given

ten days from the filing of the transcript in which to file

proposed recommended orders (PROs). The Transcript was filed

(in two volumes) on January 12, 2004, and the PROs timely

filed by Petitioner and by Respondents have been considered.

On January 23, 2004, Mrs. Imhoof also filed a Renewed Motion

for Attorney's Fees and Costs. Based on the following

Findings of Fact and Conclusions of Law, the Renewed Motion

for Attorney's Fees and Cos ts is denied.

FINDINGS OF FACT

1. Juanette Imhoof owns and resides on a piece of

residential property (Imhoof property) located at 1402

Riverside Drive, New Smyrna Beach, Florida.

2. Mrs. Imhoof's ownership is evidenced by a warranty

deed and a quitcla im deed. The warranty deed describes

property bordered on the east side by a road named Riverside

Drive. East of Riverside Drive is a strip of undeveloped land

between Riverside Drive and the water line. Mrs. Imhoof

claims this strip of undeveloped land as her riprarian

uplands. Her quitclaim deed includes the property described

in the warranty deed "together with any and all riparian

rights appertaining to or belonging to the above described

property."

3. Petitioner, Harris J. Samuels, and his wife, o wn a

piece of property adjacent to the south side of Mrs. Imhoof's

claimed riparian uplands. Their lot narrows to approximately

35 feet

wide at the river. They have a small dock which extends into

the water from their riparian uplands.

4. In the year 2000, Mrs. Imhoof's late husband,

Edward Neal Imhoof, contacted DEP Central District Office

about obtaining authorization to build a dock on the Imhoofs'

riparian uplands.

5. In April of 2000, Mrs. Lisa Prather (f/k/a Lisa

Moll), at that time an Environm ental Specialist with DEP,

visited the Imhoof property in order to do a pre - application

site inspection. Following the onsite inspection, Mrs.

Prather received an exemption application from Mr. Imhoof on

July 12, 2000, which included copies of the Imhoofs ' warranty

deed and quitclaim deed. The application also included a

drawing of the proposed dock. According to the drawing, Mr.

Imhoof intended to build his dock on the southern side of the

claimed riparian upland. The access pier was depicted mostly

pa rallel to and approximately ten feet from Petitioner's

northern property line. Near the terminal platform, the

access pier angled to the northeast, and the platform was

centered on and perpendicular to the access pier.

6. According to Florida Administr ative Code Rule 18 -

21.004, a dock must be set back "a minimum of 25 feet inside

the applicant's riparian rights lines" unless it qualifies for

a waiver. In order to qualify for a waiver, DEP must

determine that locating the dock within 25 feet of the

ripa rian rights lines will minimize or avoid impacts to

natural resources. See Conclusion of Law 26, infra . However,

Mrs. Prather testified that, at the time she received this

application, it was not DEP's practice to consider the 25 - foot

setback requirement when granting exemptions. Subsequently,

DEP's legal counsel advised her to consider such waivers when

granting exemptions.

7. Mrs. Prather relied on the quitclaim deed and the

survey included in the application to determine that the

Imhoof property ha d sufficient riparian upland interest to

qualify for an exemption and BOT consent of use. In addition

to these materials, Mrs. Prather relied on the Property

Appraiser's records, which indicated that there are riparian

rights attached to Lot 2, which was owned by Mr. and Mrs.

Imhoof. In addition, almost every other similarly - situated

property on Riverside Drive to the north of the Imhoofs'

property has a dock built on the strip of land between

Riverside Drive and the water line.

8. Based on Mrs. Prathe r's review, DEP granted Mr.

Imhoof's exemption application. On August 8, 2000, DEP issued

Edward Neal Imhoof a Notice of Exemption for construction of a

628 square foot private, single - family dock on the Indian

River in New Smyrna Beach. The Notice of Ex emption informed

Mr. Imhoof, among other things, that his proposed dock was

"exempt from the need for an Environmental Resource Permit

(ERP) under Rule 40C - 4.051(11)(g), Florida Administrative

Code." However, it also informed Mr. Imhoof that its

regulator y exemption "determination shall expire after one

year." In a separate authorization, it also informed him,

that his proposed dock "qualifies for a consent to use

sovereign, submerged lands" from the BOT. In relation to both

authorizations, it also infor med Mr. Imhoof,: " If you change

the project from what you submitted, the authorization(s)

granted may no longer be valid at the time of commencement of

the project . Please contact us prior to beginning your

project if you wish to make any changes ." (Emp hasis in

original.)

9. Construction on the dock in question did not commence

within a year of the exemption determination. The evidence

was confusing, but it appears that the Imhoofs may have sought

a dock permit from the City of New Smyrna Beach durin g the

summer of 2002, and that a question arose as to whether DEP

would allow the Imhoofs to build their dock within ten feet

from Petitioner's northern property line. 5 On July 22, 2002,

Mrs. Prather stated in an email to an individual named Seann

Smith, who was not further identified by the evidence: "The

Department is authorized to waive any setback waiver [sic] if

it [sic] the proposed location will have less environmental

impact. Therefore, Mr. Imhoof is authorized to construct his

dock 10 feet from his property line." There was no other

action from DEP

waiving the setback requirement; nor was there any action to

extend the duration of the regulatory exemption.

10. Construction of the Imhoofs' dock did not begin

until approximately April of 2003 . On May 5, 2003, Mr.

Samuels filed a complaint with DEP regarding the proximity of

the Imhoof dock to his own. DEP also received a complaint

from the City concerning the dock and trimming of mangroves.

Also in May of 2003, Mrs. Prather received a telep hone call

from Chip Steele, an environmental consultant for the Imhoofs,

who inquired as to setback requirements and requested a

waiver. It appears that on May 23, 2003, Mr. Imhoof emailed a

letter to Mrs. Prather at DEP requesting a waiver from the 25 -

fo ot setback requirement for the Imhoofs, who inquired as to a

waiver from the setback requirement. It appears that he

attached a copy of the email from Mrs. Prather to Seann Smith

dated July 22, 2002. 6 As further support for the granting of

the waiver, Mr . Steele sent Mrs. Prather a photo of the

property and a letter outlining his analysis for granting of a

waiver of the 25 - foot setback requirement, as well as a

proposed location for the dock. Based on this information, as

well as her previous site inspec tion in April of 2000,

Mrs. Prather apparently confirmed that the dock was eligible

for a waiver to the 25 - foot setback requirement, and

construction commenced. There was no evidence of any

additional writing from Mrs. Prather or DEP determining that

the 25 - foot setback was waived.

11. The dock, as built, is not in the same place as

proposed in the materials previously provided by Mr. Imhoof

and Mr. Steele. Instead, the access pier proceeded for most

of its length, but not all the way through the mangr ove

fringe, approximately 11 feet from Petitioner's northern

property line (as previously proposed). Then, earlier than

previously proposed, and still within the mangrove fringe, the

access pier angled to the northeast for a short distance,

taking it fart her away from Petitioner's northern property

line (but apparently still within 25 feet of the property

line), before angling back to the east and then to the

southeast for short distances before terminating in the

platform, which extended south towards the riparian rights

line. As built, the platform of the Imhoofs' dock is

approximately 17 feet north of the platform of Petitioner's

dock.

12. Mrs. Prather testified that the dock, as built,

still falls within the parameters to be granted a waiver from

th e 25 - foot setback requirement. Mrs. Prather testified that

the first 80 feet of the access pier (where it parallels

Petitioner's northern property line) is devoid of mangroves,

whereas the remainder of the property was at least 85 percent

covered with man groves. Therefore, placing the dock on the

south side would result in less destruction of natural

vegetation and less loss of habitat. Aligning the dock wholly

or partially through the middle of the lot, which was one of

Petitioner's alternative proposal s, would be more detrimental

to the environment because it would bisect the healthy

mangrove fringe. In addition, the dock, as built, has been

elevated to minimize impact to the vegetation from shading, at

a greater expense to the Imhoofs, even though it is not

required to be. Mrs. Prather testified that the as - built

location avoids or minimizes environmental impacts due to

shading, edge effect, and diversity.

13. Carolyn Schultz, a biologist, confirmed the

testimony of Mrs. Prather. Mrs. Schultz test ified that, on

the southern boundary of the claimed riparian uplands, where

the access pier was placed, fill material from Petitioner's

property extends onto the Imhoofs' claimed riparian upland and

has created an edge effect. As a result, this area alrea dy

has been disturbed, and placement of the dock in that

location, as opposed to the less impacted area elsewhere on

the Imhoofs' claimed riparian uplands, would be less of an

environmental impact.

14. Petitioner presented an expert biologist, Joe H.

Youn g, to testify regarding the placement of the Imhoof dock.

It was Mr. Young's opinion that placing the dock farther to

the north side of the property would result in less

environmental impact. Mr. Young proposed angling the access

pier to the northeast so oner ( i.e. , closer to Riverside Drive,

namely approximately 112 feet from the road), and continuing

it in that direction until termination in the platform, which

would be much farther north (and farther away from the

riparian rights line and Petitioner's d ock) than as - built.

Mr. Young calculated that approximately 30 square feet less

mangrove fringe would be impacted under his proposal. (It

appears that his proposed alternative dock also would still

not meet the 25 - foot setback requirement.) However, Mr. Young

did not perform any type of percentage - of - cover or qualitative

analysis. The Imhoofs' expert, Mrs. Schultz, performed such

an analysis and found that the mangrove fringe was thicker and

healthier (primarily, more diverse) where Mr. Young proposed

t hat the dock be built. Even disregarding relative health of

the mangrove fringe in the two locations, when she factored in

percentage - of - cover, Mrs. Schultz found that 5 square feet

less mangrove vegetation was impacted by the Imhoofs than

would be under Mr. Young's proposal. Petitioner did not rebut

the testimony of the opposing experts that the as - built

location was preferred because of factors such as diversity,

edge effect, and shading.

15. The evidence is clear that, waterward of the

mangrove frin ge, there is no significant difference in natural

resources to be impacted by placement of the Imhoofs' dock.

In other words, placement of the terminal platform in the as -

built configuration is not necessary to avoid or minimize

adverse impacts to natural resources. Extending the platform

to the north, away from the riparian rights line and

Petitioner's dock, would be just as environmentally - friendly.

16. Petitioner testified that the location of Mrs.

Imhoof's dock, approximately 17 feet to the north of his dock,

interferes with his riparian rights and the use of his dock

for kayaks and sailboats. As for riparian rights, Petitioner

accepted the riparian rights lines drawn by Respondents for

purposes of this case. Those riparian rights lines indicate

not only that Mrs. Imhoof's dock does not interfere with

Petitioner's riparian rights but that Petitioner's dock

actually interferes with Mrs. Imhoof's claimed riparian

rights. As for launching and docking kayaks and sailboats,

the location of Mrs. Imhoof 's dock interferes with Petitioner

to some degree, especially in certain current and wind

conditions. Some degree of such interference may not be

unreasonable, especially given the location of Petitioner's

dock within Mrs. Imhoof's claimed riparian rights lines. But

there was no valid, natural resource - based reason for the

Imhoofs to construct the platform of their dock so as to

extend south towards the riparian rights line and Petitioner's

dock.

17. The DEP representative who took Petitioner's

complai nt on May 5, 2003, wrote on the complaint form: "Mr.

Imhoof constructed dock longer and closer to his dock than we

authorized in our exemption of August 2000." The "we" appears

to refer to DEP, not Petitioner. It appears from the evidence

that Petitione r first learned of the existence of the Imhoofs'

exemption in early May 2003, when he went to the City of New

Smyrna Beach to complain about the location of the dock being

constructed by the Imhoofs. However, on its face, the

exemption appeared to have ex pired well before construction

began. On May 20, 2003, DEP conducted a site investigation of

the complaints against the Imhoofs. After the site visit, DEP

representatives spoke to Petitioner and told him that the

Imhoofs' dock was exempt and had a waiver from the setback

requirement. On or about May 22, 2003, Mr. Samuels went to

DEP's Central Office and obtained another copy of the expired

exemption.

18. On July 1, 2003, Mr. Samuels mailed DEP his Amended

Petition. It was not clear from the evidence whether there

was an earlier petition or, if so, when it was filed.

Respondents did not file a motion to dismiss the Amended

Petition as being untimely; however, their PRO raised this

issue.

19. It was not clear from the Amended Petition whether

Peti tioner was requesting an administrative hearing on

proposed agency action (to determine de novo whether

Mr. Imhoof's proposed dock should be exempt), or whether he

was requesting revocation of the exemption for construction

not consistent with the exemptio n. The Amended Petition did

not articulate that the exemption expired before construction,

or take the position that Mr. Imhoof's dock was constructed

without the benefit of a valid regulatory exemption (or

permit) and BOT consent of use.

CONCLUSIONS O F LAW

Jurisdiction and Burden of Proof

20. Respondents concede in their PRO that the Division

of Administrative Hearings has personal and subject matter

jurisdiction in this proceeding pursuant to Sections 120.569

and 120.57(1), Florida Statutes (2003). As stated in their

PRO: "Activities occurring on sovereign submerged lands are

subject to both the regulatory requirements of the Departments

related to wetland impacts and the Department's proprietary

authorization as the staff to the Board of Trustees of the

Internal Improvement Trust Fund under Chapter 253 of the

Florida Statutes."

21. Notwithstanding this concession as to jurisdiction,

Respondents also state in their PRO that "Petitioners [sic]

challenge appears untimely." It is true that untimel y

challenges are subject to dismissal. See § 120.569(2)(c),

Fla. Stat. (2003); Fla. Admin. Code R. 28 - 106.201(4); See also

Patz v. Dept. of Health , ___ So. 2d ___, 2003 WL 23008852

(Fla. 3d DCA 2003); Cann v. Dept. of Children and Family

Services , 813 So. 2d 237 (Fla. 2002). But timely filing of a

petition for an administrative proceeding is "not

jurisdictional, but analogous to a statute of limitations

which is subject to equitable exceptions." See O'Donnell's

Corp. v. Ambroise , 858 So. 2d 1138, 1140 (F la. 5th DCA 2003).

Under Florida Administrative Code Rule 28 - 106.204(2), motions

to dismiss must be filed "no later than 20 days after service

of the petition on the party." Had a timely motion to dismiss

been filed, Petitioner could have been prepared t o respond.

Instead, the issue was not raised until the final hearing. In

the absence of notice of the issue being raised, the evidence

was confusing as to when Petitioner received notice of the

Imhoofs' exemption; and there was no evidence presented as t o

whether there was an earlier petition (before the Amended

Petition filed on July 1, 2003) or, if so, when it was filed. 7

For these reasons, it is concluded that the Amended Petition

should not be dismissed for being untimely.

22. The evidence was cl ear that DEP only made one

exemption determination; it was made in August 2000; and it

expired before the Imhoofs built their dock. As a result,

both de novo proceedings and revocation proceedings related to

the expired exemption are moot.

23. The onl y regulatory issue properly presented by

these circumstances is the existence of a dock built without

the benefit of a valid permit or exemption. A proper response

to such circumstances probably could have been for DEP to

issue a consent order determining the as - built dock to be

exempt, assuming it qualified for exemption. 8 Had DEP issued

such a consent order, Petitioner could have filed a request

for a hearing, and the issue would have been whether the as -

built dock qualified for an exemption, and the bu rden of proof

and persuasion would have been on Mrs. Imhoof. Id. 9 Although

the procedure of issuing a consent order was not followed in

this case, it is concluded that Mrs. Imhoof should bear the

burden in this case of proving that her dock qualifies for a

regulatory exemption.

24. In contrast to the regulatory exemption, the consent

of use did not expire by its terms. Petitioner clearly did

not have standing to request a hearing to revoke an existing

consent of use. 10 As a result, the Amended Petiti on is viewed

as a request for a de novo proceeding on the issue whether the

application for consent of use should be granted. In such a

proceeding, the burden of proof and burden of persuasion are

on the applicant, Mrs. Imhoof; and it was her burden, as

a pplicant, to prove by a preponderance of the evidence that

she is entitled to issuance of a consent of use. 11

Regulatory Exemption

25. Section 403.813(2)(b), Florida Statutes (2003), and

Florida Administrative Code Rule 40C - 4.051(2)(f)(1995) 12 exempt

f rom DEP's "regulatory" requirements "private docks having

1000 square feet or less of surface areas over wetlands or

other surface waters. The evidence was clear that Mrs.

Imhoof's dock meets the square footage requirement for a

regulatory exemption.

Pr oprietary Consent of Use

26. Florida Administrative Code Rule 18 - 21.004 addresses

the management policies, standards, and criteria used in

determining whether "to approve, approve with conditions or

modifications, or deny all requests for activities on

sovereignty submerged lands." The Rule provides in pertinent

part:

(3) 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 riparian rights, as defi ned in

Section 253.141, F.S., of upland property

owners adjacent to sovereignty submerged

lands.

(b) Satisfactory evidence of sufficient

upland interest is required for activities

on sovereignty submerged lands riparian to

uplands, unless otherwise speci fied in this

chapter. . . . Satisfactory evidence of

sufficient upland interest is not required

for activities on sovereignty submerged

lands that are not riparian to uplands, or

when a governmental entity conducts

restoration and enhancement activities,

provided that such activities do not

unreasonably infringe on riparian rights.

(c) All structures and other activities

must be designed and conducted in a manner

that will not unreasonably restrict or

infringe upon the riparian rights of

adjacent upland riparian owners.

(d) Except as provided herein, all

structures, including mooring pilings,

breakwaters, jetties and groins, and

activities must be set back a minimum of 25

feet inside the applicant's riparian rights

lines. Marginal docks, however, must be

set back a minimum of 10 feet. Exceptions

to the setbacks are: . . . when a letter

of concurrence is obtained from the

affected adjacent upland riparian owner; or

when the Board determines that locating any

portion of the structure or activity within

the setback area is necessary to avoid or

minimize adverse impacts to natural

resources.

27. The term "satisfactory evidence of sufficient upland

interest" is defined in Florida Administrative Code Rule 18 -

21.003(49) as being "demonstrated by documenta tion, such as

warranty deed, a certificate of title issued by a clerk of the

court, a lease, an easement, or condominium, homeowners or

similar association documents that clearly demonstrate that

the holder has control and interest in the riparian uplands

adjacent to the project area for the intended purpose."

28. During the hearing, Respondents' Motion in Limine

was granted to the extent that Mrs. Imhoof was not required to

deraign title in order to demonstrate "satisfactory evidence

of sufficient upla nd interest." See Castoro v. Palmer and

Dep't of Envtl. Prot. , DOAH Case No. 96 - 0736, 1998 WL 901857,

at *20 - 21 (DER Oct. 15, 1998)(where no boundary dispute was at

issue, DER had jurisdiction to determine whether evidence of

sufficient upland interest wa s satisfactory without having to

establish the property boundary through deraignment of title).

It is concluded that the evidence presented by Mrs. Imhoof was

sufficient for issuance of a consent of use for her dock. See

also DEP v. Brotherton and Sports man's Lodge Development

Corp. , DOAH Case No. 96 - 6070, 1997 WL 594059, at *10 (DER

Sept. 3, 1997)(title to condominium unit by deed which

"conveyed items of personal property including the private

dock thereon," and letter from the condominium

developer/ass ociation that the "dock will remain permanently

assigned to your unit as a limited common element reserved for

use by your unit," were sufficient for consent of use to allow

condominium owner to repair the dock, although the condominium

association owned t he riparian uplands and the associated

riparian rights relative to the dock, and: "If Respondent

lacks sufficient title interest to repair and use the dock, it

is up to a circuit court, not a state agency, to so rule.").

29. As to the requirement in Flo rida Administrative Code

Rule 18 - 21.004(3)(a) and (c) that all activities be conducted

in a manner that will not unreasonably restrict or infringe

upon the riparian rights of adjacent upland owners, Petitioner

accepted the riparian rights lines drawn by Re spondents. No

other riparian rights survey has been conducted by Petitioner.

As found, the riparian rights lines drawn by Respondents

indicate not only that Mrs. Imhoof's dock does not encroach

upon Petitioner's riparian rights line but that Petitioner's

dock actually encroaches upon Mrs. Imhoof's claimed riparian

rights.

30. Petitioner's main contention was that the Imhoof

dock, as built, is too close to his and interferes with the

use of his dock for kayaks and sailboats. While Mrs. Imhoof's

dock d oes not encroach upon Petitioner's riparian rights line,

there was no valid, natural resource - based reason for its

terminal platform to be constructed to the south, towards the

riparian rights line and Petitioner's dock, from the terminus

of the access pie r. To that

extent, the Imhoof dock's interference with Petitioner's use

of his dock is not reasonable.

31. As to Florida Administrative Code Rule 18 -

21.004(3)(d), Mrs. Imhoof was able to prove that "locating any

portion of the structure or activity within the setback area

is necessary to avoid or minimize adverse impacts to natural

resources." As a result, she is entitled to a waiver of the

25 - foot setback under that Rule. However, while entitled to a

waiver, the waiver should specify where within the 25 - foot

setback the dock must be built. In this case, once the dock's

access pier extended beyond the mangrove fringe and into the

water, there was no valid, natural resource - based reason (or

any other reason) to extend the platform to the south from the

terminus of the access pier. Instead, Mrs. Imhoof should be

required to build the terminal platform to the north, away

from the riparian rights line and Petitioner's dock.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Environmental

Protection enter a final order determining that Mrs. Imhoof:

(1) is entitled to a regulatory exemption for her dock; and

(2) should be given consent of use by the BOT for her dock, so

long as t he terminal platform extends to the north, away from

the riparian rights line and Petitioner's dock.

DONE AND ENTERED this 17th day of February, 2004, in

Tallahassee, Leon County, Florida.

S ---

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17t h day of February, 2004.

ENDNOTES

1/ Previously, Edward Neal Imhoof was a named Respondent,

along with the Department of Environmental Protection.

However, at the outset of the final hearing, an unopposed ore

tenus motion was made and granted to subst itute his widow,

Juanette Imhoof.

2/ Petitioner reserved the right to raise the issue in any

subsequent court proceeding.

3/ Petitioner's Exhibit 18 was not moved into evidence.

4/ Applicant's Exhibit 9 was not moved into evidence.

5/ The C ity's setback requirement was ten feet, but there

would be no point in getting a City permit if DEP would not

authorize the dock to be located that close to Petitioner's

property line.

6/ DEP's file was taken apart during discovery and later

reconstructe d. It does not appear from the evidence that the

file, as presented during the final hearing, was accurate. As

a result, the evidence was not clear, but it appears that both

Petitioner's Exhibit 8 and DEP Exhibit 1 were parts of

Mr. Imhoof's emailed requ est dated May 23, 2003.

7/ The Amended Petition would "relate back" to an earlier

petition. See Holley v. Innovative Technology of Destin,

Inc. , 803 So. 2d 749 (Fla. 1st DCA 2001)(under Florida Rule of

Civil Procedure 1.190(c), amended complaint that "arose out of

the conduct, transaction, or occurrence set forth or attempted

to be set forth in the original" relates back); Ron's Quality

Towing, Inc. v. Southeastern Bank of Florida , 765 So. 2d 134

(Fla. 1st DCA 2000)(same; also, relation back doctrine s hould

be liberally applied and applies even if the amended complaint

raises new legal theories); Totura & Company v. Williams , 754

So. 2d 671, 680 (Fla. 2000)(under rules of civil procedure,

amended petition adding defendant related back to motion to

amend , which was "full and comprehensive as to facts" and

"would stand in place of an actual amendment," so as to defeat

new defendant's statute of limitations defense). Again

analogizing to the civil law on statute of limitations, to

hold otherwise would be " inconsistent with the . . . the

purpose of a statute of limitations, which is 'to promote

justice by preventing surprises through revival of claims that

have been allowed to slumber until evidence has been lost,

memories have faded, and witnesses have disa ppeared.'"

(Citations omitted.) Totura , supra , at 680 - 681. In this

case, Respondents were neither surprised by the Amended

Petition nor prejudiced in their defense against it.

8/ In Sarasota County v. State of Florida Department of

Environmental Regul ation and Ronald Falconer , DOAH Case No.

86 - 2463, 1987 WL 62044, at *1 (DER Mar. 8, 1987), the

Secretary of the Department of Environmental Regulation

described two types of consent orders, the first of which is

pertinent here:

The first class of consent order serves as

authorization for a permittable type of

activity that has not yet been conducted or

is ongoing in nature and is the type of

activity more properly the subject of a

permit application.

9/ As stated in Falconer , at *2:

When a hearing is requested on a consent

order of the first class, the burden of

proof is on the respondent desiring to

conduct or continue the authorized activity

as in a permit proceeding. In other words,

the respondent must demonstrate entitlement

to the authorization b y providing

reasonable assurances that the criteria in

Chapter 403, Florida Statutes, and

Department rules have been met.

This ruling conforms to the general law that an applicant, as

the party seeking to prove the affirmative of an issue, has

the burden of proof, absent a statutory directive to the

contrary. Antel v. Department of Professional Regulation , 522

So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation

v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); and

Balino v. Department of H ealth and Rehabilitative Services ,

348 So. 2d 249 (Fla. 1st DCA 1977).

10/ Section 120.60(5), Florida Statutes (2003), which governs

agency proceedings to revoke, modify, or suspend issued

licenses and permits, expressly allows only the issuing agency

to initiate such proceedings. See also Fla. Admin. Code R.

28 - 107.104, which implements the statute. A proceeding to

revoke a license filed by a private party must be dismissed

for lack of jurisdiction and standing. See Associated Home

Health Agency, In c. v. Dept. of Health, etc. , 453 So. 2d 104

(Fla. 1st DCA 1984).

11/ See Endnote 9, supra .

12/ These are the St. Johns River Water Management District

rules in existence in October 1995 that were adopted by DEP

and incorporated into DEP's rules by reference.

COPIES FURNISHED:

Thomas D. Wright, Esquire

340 North Causeway

New Smyrna Beach, Florida 32169 - 5233

Albert E. Ford II, Esquire

994 Lake Destiny Road, Suite 102

Altamonte Springs, Florida 32714 - 6900

Nona R. Schaffner, Esquire

Depart ment of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

Office of General Counsel

3900 Commonwealth Boulevard

Mail Station 35

Tallah assee, Florida 32399 - 3000

David B. Struhs, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35.

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Comm onwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

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.