96-006070 John Brotherton vs. Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, June 10, 1997.

Summary: Applicant for exemption to repair boat dock has shown sufficient title interest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. )

)

JOHN BROTHERTON, )

) CASE NO. 96-6070

Respondent, )

and )

)

SPORTSMAN’S LODGE DEVELOPMENT )

CORP., )

)

Intervenor. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Tampa,

Florida, on March 14, 1997.

APPEARANCES

For Petitioner: Albert E. Ford, II

Assistant General Counsel

3000 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: John Brotherton, pro se

6304 North Ot is Avenue

Tampa, Florida 33604

For Intervenor: Robert G. Southey

Delano & Southey

Post Office Box 15707

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issues are whether the Petitioner lawfully revoked John

Brotherton’s exemption for the repair or replacement of a dock in

submerged lands and whether Respondent timely requested a

hearing.

PRELIMINARY STATEMENT

By letter dated April 24, 1996, Petitioner informed

Respondent that it was revoking a previously issued letter of

exemption for a personal dock adjacent to a condominium

development.

Respondent filed a petition demanding a formal hearing.

The recommended order changes the style of the case and

redesignates the petitioner and respondent from the prior

pleadings in order to reflect that the Department of

Environmental Protection has the burden of proof.

At the hearing, Petitioner called two witnesses and offered

into evidence eight exhibits. Respondent called one witness and

offered into evidence six exhibits. Intervenor called two

witnesses and offered into evidence three exhibits. All exhibits

were admitted except Respondent Exhibits 1, 3, 5, and 6.

The court reporter filed the transcript on April 7, 1997.

The parties submitted all post-hearing filings by May 8, 1997.

FINDINGS OF FACT

1. Intervenor is the successor by merger with Bankers Real

Estate Investment Company. References to Intervenor shall

include Bankers Real Estate Investment Company.

2. Intervenor submitted to condominium ownership the

property that, following condominium construction, has become

known as Sportsman’s Riverside Townhomes Association

(Sportsman’s). This property borders the Homosassa River.

3. Subject to the legal effect of the transactions

described below, Sportsman’s owns the riparian rights to the area

upon which a dock owned by Respondent is located.

4. By warranty deed dated February 1, 1984, David J.

Steward acquired Sportsman’s condominium unit five. The deed

contains no reference to a dock, but conveys only unit number

five and an undivided share in the common element.

5. However, by letter to Mr. Steward dated June 19, 1984,

the Chairman of Bankers Real Estate Investment Corp. agreed that,

in consideration of Mr. Steward’s execution of amended

condominium documents, the developer “will” assign Mr. Steward

more parking spaces and “[y]our boat dock will remain permanently

assigned to your unit as a limited common element reserved for

use by your unit.”

6. On October 12, 1990, David J. Steward conveyed

Sportsman’s condominium unit number five to Respondent. The deed

conveyed “items of personal property including the private dock

thereon.” On April 20, 1993, Respondent applied to Petitioner

for an exemption to repair the dock that Mr. Steward had sold

him. The dock had been damaged in a storm the prior month.

7. The application includes a copy of the warranty deed to

Respondent. The deed reveals that Respondent owns only a single

unit of a condominium project, but the application does not name

the condominium association as an adjacent property owner.

Respondent checked the form on the application stating that he

was the record legal owner of the “property on which the proposed

project is to be undertaken.”

8. The application states that the dock is a floating dock

for the private docking of Respondent’s boat. The application

reports that the dock is 128 square feet in area.

9. By letter dated June 1, 1993, Petitioner granted

Respondent the requested exemption from permitting, “[b]ased

solely upon the documents submitted to the Department . . ..”

The letter adds that the exemption constitutes “authorization

from the Board of Trustees Pursuant to a Memorandum of Agreement

entered into on November 23, 1992.” The letter warns that

Petitioner may revoke the exemption determination “if the basis

for the exemption is determined to be materially incorrect . .

..”

10. The Memorandum of Agreement dated November 23, 1992,

(MOA) is between the predecessor agency to Petitioner and the

Board of Trustees of the Internal Improvement Trust Fund (Board

of Trustees). In the MOA, the Board of Trustees authorizes the

use of state-owned submerged lands for all activities (subject to

irrelevant exceptions) for which Petitioner grants exemptions

from environmental resource permitting.

11. By letter dated April 24, 1996, Petitioner informed

Respondent that it had learned that Respondent had supplied

“materially incorrect” information in the application submitted

with the April 20, 1993, letter. The April 24 letter explains

that Respondent asserted in the application that it was the

record owner of the property, but the warranty deed revealed that

he was not. The April 24 letter gives Respondent 21 days from

receipt within which to file a petition requesting a formal

administrative hearing.

12. Respondent timely filed his request for a hearing. The

facts do not establish a waiver of Respondent's right to demand a

hearing.

13. Petitioner did not rely on Respondent’s representation

that he was the owner of the property on which the dock was

located. The warranty deed attached to the application clearly

revealed that Respondent owned only a condominium unit and

undivided interest in the common element. Petitioner also knew

that the state owned the submerged land at the dock.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes.)

15. Rule 18-21.004 contains the rules governing requests

for activities on state-owned submerged lands. Rule 18-

21.004(3)(b) states:

Applications for activities on sovereignty lands

riparian to uplands can only be made by and

approved for the upland riparian owner, their

[ sic ] legally authorized agent, or persons with

sufficient title interest in uplands for the

intended purpose.

16. Petitioner’s witnesses testified that Rule 18-

21.004(3)(b) requires ownership of the upland property. This is

the meaning of the first two clauses, but the last clause

broadens the category of permissible applicants. “Sufficient

title interest in uplands for the intended purpose” requires a

functional inquiry to determine if the interest of the applicant

is sufficient to allow it to repair the dock.

17. Real estate title determinations are the jurisdiction

of circuit courts. Agencies may determine whether an applicant

possesses sufficient ownership of land to entitle the applicant

to a permit, but this determination in no way affects the actual

ownership of the land.

18. In this case, Respondent has shown sufficient legal

interest to allow him to repair the dock. He may have obtained a

license or prescriptive rights to use the dock. Perhaps he has a

stronger legal interest. Respondent has shown sufficient

interest in the dock and land to satisfy the requirement of the

rule. If Respondent lacks sufficient interest to repair and use

the dock, it is up to a circuit court, not a state agency, to so

rule. If a circuit court later determines that Respondent lacks

the necessary interest to repair and use the dock, then,

following a judgment to this effect, Petitioner may bring another

proceeding to revoke the exemption of Petitioner and consent of

the Board of Trustees.

RECOMMENDATION

It is

RECOMMENDED that the Department of Environmental Protection

enter a final order dismissing the proceeding seeking the

revocation of the exemption from the Department and consent from

the Board of Trustees.

ENTERED in Tallahassee, Florida, on June 10, 1997.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

on June 10, 1997.

COPIES FURNISHED:

Perry Odom, General Counsel

Department of Environmental

Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Albert E. Ford, II, Esquire

Mail Station 35

3000 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

John Brotherton

6304 North Otis Avenue

Tampa, Florida 33604

Robert G. Southey, Esquire

Delano & Southey

Post Office Box 15707

St. Petersburg, Florida 33701-5707

Kathy Carter, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

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 must be filed with the agency that will

issue the final order in this case.