Section 718 by vYcL52D

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									                                                            DEP04-1766

                        STATE OF FLORIDA
             DEPARTMENT OF ENVIRONMENTAL PROTECTION


WILLIAM M. DOW,

       Petitioner,

vs.                                                  OGC CASE NO. 04-0299

QUAIL VALLEY CLUB, LLC, and
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

      Respondents.
____________________________________/

          FINAL ORDER DISMISSING PETITION WITH PREJUDICE

       On February 15, 2004, the Petitioner, WILLIAM M. DOW ("Mr. Dow"),

submitted a letter to the Department of Environmental Protection (Department), which

was treated as a petition for an administrative hearing, challenging the Department's

issuance of Permit No. 31-203795, to Respondent, QUAIL VALLEY CLUB, LLC. See

Exhibit 1. The permit authorizes the Respondent to remove and reconstruct nineteen

finger piers within a 40-slip marina in Indian River County. On June 9, 2004, the

Department issued an order dismissing the petition with leave to amend because the

petition did not conform to the requirements contained in Section 120.54(5)(b)4, Florida

Statutes, and Rule 28-106.201(2), Florida Administrative Code, because it did not contain

sufficient information to determine whether a formal administrative hearing should be

held. See Exhibit 2. Mr. Dow then submitted another letter that was considered an

amended petition (Amended Petition) on June 21, 2004. See Exhibit 3.
       In his Petition, Mr. Dow asserts that there is a dispute as to the property lines

between Quail Valley and Bayou Condominium East property owners (himself included),

including ownership of the seawall, and that "the piers south of [Bayou East's]...property

up to the Quail Valley Dock House are now wholly within the eastern part of Bayou

East's riparian rights..." See Exhibit 3, at par. (d)-(e). In essence, Mr. Dow asserts that

Quail Valley Club's property ownership rights conflict with those of Mr. Dow, and the

piers in question fall within Bayou East Condominium's riparian rights area. Therefore,

Mr. Dow argues the Department erred in issuing the Respondent's permit before this

property conflict is resolved.

       In the present case, Mr. Dow presents nothing more than a dispute over the title or

ownership of real property for administrative determination when he asks for a

determination of common riparian rights. See Exhibit 3, at par. (g). However,

administrative agencies such as the Department are constitutionally prohibited from

exercising jurisdiction over real property disputes of any kind, including resolving

conflicting property claims or riparian ownership, because such determinations are

reserved to the courts of Florida as a purely judicial power. See Art. V, § 20(c)(3), Fla.

Const. (stating that circuit courts have original jurisdiction over "all actions involving the

titles and boundaries or right of possession of real property"). See also Miller v. Dep't of

Envtl. Regulation, 504 So. 2d 1325, 1327-1328 (Fla. 1s' DCA 1987) (deciding that the

Department does not have jurisdiction to determine non-environmental impacts to the

"property of others" and "issues of law inherent in evaluation of private property

impacts"); Buckley v Dep't of Health & Rehabilitative Svcs., 516 So.2d 1008, 1009 (Fla.

1't DCA 1987) (stating that an administrative hearing is not the appropriate forum for a
property dispute and that a "court of competent jurisdiction is more appropriate");

Hageman v Carter, 17 F.A.L.R. 3684. 3690 (Fla. DEP 1995); Powell v. Alabama Electric

Cooperative, 15 F.A.L.R. 325, 325 (Fla. DER 1992) (Neither DEP ... nor DOAH has the

authority or jurisdiction to determine issues of titles or boundaries to real property").

       In addition, Mr. Dow again did not comply with the requirements of Section

120.54(5)(b) 4, Florida Statues, and Rule 28-106.201(2), Florida Administrative Code,

because the Amended Petition does not sufficiently allege that Mr. Dow's substantial

interests are, or could be, harmed by the proposed action. See Exhibit 3. In order to

demonstrate such standing, the Amended Petition must allege that Mr. Dow's substantial

interests are affected by the Department's action or proposed action. Such allegations in

the Amended Petition must demonstrate that that (1) "he will suffer an injury in fact":

that is sufficiently immediate to entitle him to a Section 120.57 hearing, and (2) the injury

"is of a type or nature" that an administrative proceeding is designed to protect. Agrico

Chemical Co. v. Dep't of Envtl. Regulation, 406 So.2d 478, 482 (Fla. 2"d DCA 1981),

rev. denied, 415 So.2d 1359 (Fla. 1982).

       With regard to the first part of the test, Mr. Dow, as a condominium unit owner,

appears to be asserting the ownership interest the Bayou East Condominium Association

has in the common areas, riparian rights area and ownership of the seawall, instead of the

Association itself. His Amended Petition does not assert that he has authority to represent

the Bayou East Condominium Association. By law, "a unit owner does not have any

authority to act for the association by reason of just being a unit owner." Section

718.111(1)(c), Florida Statutes. It is the condominium association that is authorized under

Section 718.111(3), Florida Statutes, to "contract, sue and be sued" in its name on behalf
of all unit owners "concerning matters of common interest to most or all unit owners,

including, but not limited to, the common elements." Even though in appropriate

circumstances an organization can represent the interests of its members, this is not the

case here. See Medley Investors Ltd. v. Lewis, 465 So. 2d 1305, 1307 (Fla. 1st DCA

1985) (appellant has not alleged that they constitute a trade or professional association

that would have standing to request an administrative hearing). Because Mr. Dow does

not have standing under Chapter 718, Florida Statutes, to assert the condominium

association's interest in the affected area in question, he cannot show that he is in danger

of "sustaining some direct injury as a result of the ... agency's action" and that his

personal property rights are affected. Village Park Mobile Home Ass'n v. Dep't of

Business Regulation, 506 So.2d 426 (Fla. 1'` DCA 1987), rev. denied, 513 So. 2d 1063

(Fla. 1987).

        Additionally, Mr. Dow has failed to demonstrate in his Amended Petition that he

meets the second part of the test, i.e. the injury "is of a type or nature" that an

administrative proceeding is designed to protect. Instead of alleging an interest that an

administrative hearing is designed to protect, Mr. Dow alleges a dispute over the title or

ownership of real property, which only the circuit courts of the state have jurisdiction to

hear.

        In view of the above, I conclude there is no second amended petition which can

be filed that would cure this fundamental constitutional defect. See Section 120.569,

Florida Statutes:


        ... A petition shall be dismissed if it is not in substantial compliance with these
        requirements or it has been untimely filed. Dismissal of a petition shall, at least
       once, be without prejudice to petitioner's filing a timely amended petition curing
       the defect, unless it conclusively appears from the face of the petition that the

       defect cannot be cured. (Emphasis added.) IT IS THEREFORE ORDERED:

       The Amended Petition is hereby DISMISSED with prejudice.

       Any party to this proceeding has the right to seek its judicial review under Section

120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rules 9.110 and

9.190, Florida Rules of Appellate Procedure, with the Clerk of the Department in the

Office of General Counsel, 3900 Commonwealth Boulevard, Mail Station 35,

Tallahassee, Florida 32399-3000, and by filing a copy of the notice of appeal

accompanied by the applicable filing fees with the appropriate district court of appeal.

The Notice of Appeal must be filed (received) within thirty days after the date this Order

is filed with the Clerk of the Department.

       DONE AND ORDERED this _____ day of September, 2004, in Tallahassee,

Florida.


                                      STATE OF FLORIDA DEPARTMENT
                                      OF ENVIRONMENTAL PROTECTION

                                      GREGORY M. MUNSON
                                      General Counsel
                                      3900 Commonwealth Boulevard
                                      Tallahassee, Florida 32399-3000


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