ITS OVER – TIME TO SETTLE!

THE END OF EVIL O.R. 569/875

PRO SE PLAINTIFFS TO U.S. GOVERNMENT

SETTLE NOW!
ADOLF HITLER LEARNT HIS LESSON

NO MORE HOLOCAUST & COVER UP

 STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION

JOHN LAY AND JANET LAY,

Petitioners, OGC CASE NOs. 01-0203

01-0204
VS. DOAH CASE NOs. 01-1541
01-1542
DEPARTMENT OF ENVIRONMENTAL DEP01-0860; DEP01-0876
PROTECTION,

Respondent.

_____________________________________/

FINAL ORDER

On August 14, 2001, an Administrative Law Judge with the Division of Administrative Hearings (hereafter
"DOAH") submitted his Recommended Order to the Department of Environmental Protection (hereafter "Department"). A
copy of the Recommended Order was also furnished to pro se Petitioners, John and Janet Lay (hereafter the "Lays").' A
copy of the Recommended Order is attached hereto as Exhibit A. Exceptions to the Recommended Order were timely
filed on behalf of the Department. The Recommended Order and the Exceptions are now before the Secretary of the
Department for final agency action.

BACKGROUND

The Lays are the owners of Lots 16 and 17, Cayo Costa Subdivision, located on Cayo Costa Island in Lee
County, Florida. On July 12, 2000, the Lays filed a consolidated application for exemption from the need to obtain an
environmental resource permit and for a consent of use for a 208 square foot single-family dock. A portion of the
proposed dock project would be built on sovereign submerged lands owned by the State of Florida underlying a lagoon
west of Pelican Bay. Due to the Department's focus on minimizing adverse impacts on mangroves bordering the lagoon,
the Lays eventually agreed to submit additional information and to reduce the size of their proposed dock to 58 square
feet. The revised application was granted by the Department on August 21, 2000, in DEP File No. 36-0172390-001.
The consent of use included General Consent Conditions. Among other things, they stated: "The Letter of
Consent associated with these General Consent Conditions as well as these conditions themselves are subject to
modification after five (5) years in order to reflect any applicable changes in statutes, rule or policies of the Board [of
Trustees of the Internal Improvement Trust Fund] or its designated agent [DEP] .,, 2 There were no other conditions or
statements regarding modification or revocation of the consent of use.
After obtaining their exemption and consent of use in DEP File No. 36-0172390-001, the Lays determined that
they needed a larger dock. On September 11, 2000, the Lays applied for another exemption and consent of use for a 114
square foot single family dock. This application was granted by the Department on October 14, 2000 in DEP File No.
36-0172390-002. This consent of use contained the same General Consent Conditions as the first consent of use for the
proposed 58 square foot dock. Like the original consent of use issued to the Lays, no provisions were set forth in the
consent of use issued in DEP File No. 36-0172390-002 regarding modification or revocation.
In January of 2001, the County Attorney for Lee County sent the Department a copy of a boundary survey of Lots
16 and 17 prepared by Ted B. Urban, a professional land surveyor. See, the Lays' "Exhibit A" admitted into evidence at
the DOM final hearing. This boundary survey reflects that the Lays' proposed dock facility would have to traverse a strip of
land above mean high water ("MHW') approximately 10-15 feet in width. This strip of land east of the boundaries of Lots
16 and 17 and above the MHW is designated as a "road easement" on the boundary survey.
Based primarily on its review of this boundary survey, the Department concluded that the Lays were not "upland
riparian" landowners within the purview of Rule 1821.004(3)(b), Florida Administrative Code ("F.A.C."). Accordingly, the
Department issued a letter dated January 18, 2001, notifying the Lays that the prior consents of use of sovereign
submerged lands issued in DEP File Nos. 36-0172390-001 and 360172390-002 "are hereby revoked." See "DEP Ex. 15"
admitted into evidence at the DOM final hearing. The Lays then filed a petition contesting the Department's agency action
proposing to revoke the two prior consents of use.
DOAH PROCEEDING
 The Department forwarded the Lays' petition to DOAH and requested a formal administrative proceeding.
Administrative Law Judge, J. Lawrence Johnston ("ALX), was assigned to preside over the case. The ALJ held a formal
administrative hearing in this case on June 29, 2001. In his subsequent Recommended Order, the ALJ
concluded that the Department did not have legal authority to revoke the two consents of use previously issued to the
Lays. This legal conclusion of the ALJ was based on several grounds, including the applicability to this case of the
doctrine of "administrative finality." The ALJ ultimately recommended that the Department enter a final order disapproving
the notice dated January 18, 2001, attempting to revoke the two consents of use issued to the Lays in DEP File Nos.
36-0172390-001 and 36-0172390-002.

RULINGS ON THE DEPARTMENT'S EXCEPTIONS

Exception No. 1

The Department's first Exception objects to the ALJ's Conclusions of Law 16, 17, and 18. These challenged legal
conclusions of the ALJ all pertain to the issue of whether the doctrine of "administrative finality" applies in this case. The
rationale underlying the administrative finality doctrine is that there must be a "terminal point at which the parties and the
public may rely on a decision of an agency as being final and dispositive of the rights and issues therein." Reedy Creek
Utilities Co. v. Florida Public Service Commission, 418 So.2d 249, 253 (Fla. 1982); Peoples Gas System, Inc. v. Mason,
187 So.2d 335, 339 (Fla. 1966). The ALJ concluded that the administrative finality doctrine did apply in this case, thereby
precluding the Department from revoking the two prior consents of use granted to the Lays in the year 2000.
The sole legal authority cited and discussed by the ALJ as precedent for his conclusion that the administrative
finality doctrine precluded the Department from revoking the two prior consents of use granted to the Lays is a prior final
order of this agency entered in the case of Dept. of Environmental Protection v. Brotherton and Sportman's Lodge
Development Corp., ER FALR 97:172 (Fla. DEP 1997). The Brotherton Final Order relied on the administrative finality
doctrine as the basis for disapproving an attempted revocation by the Department in 1996 of a permit exemption
determination and a consent of use granted to Brotherton in 1993 in connection with a proposed dock repair project in
Citrus County.
The Department contends that the 1997 Brotherton Final Order relied upon by the ALJ is distinguishable on its
facts and is not controlling as to the disposition of the instant case. This contention of the Department's is based on a
portion of the Brotherton Final Order stating that:

the record in this case does not demonstrate that the Department's attempted revocation
of DER's Letter of Exemption No. 092309393 is based on critical newly-discovered
evidence not included in Brotherton's 1993 exemption application package." (emphasis
supplied)

The Department asserts that, unlike Brotherton, there is "critical newly-discovered evidence" in this case supporting the
propriety of the revocation action of this agency. The critical newly-discovered evidence relied upon by the Department is
the boundary survey it received from the County Attorney for Lee County in January of 2001. See the Lays' "Exhibit A."
The Department's contention that the boundary survey constitutes "critical newly discovered evidence" is based
on the fact that this survey shows a 60-foot wide "road easement" adjacent to the eastern boundaries of Lots 16 and 17.
The boundary survey further reflects that, at the point where the Lays propose to build their dock, about 10-15 feet of the
road easement is located above the MHW point. The Department argues that the existence of this 10-15 foot wide road
easement between the eastern boundaries of Lots 16 and 17 and the MWH at the proposed dock site precludes the Lays
from being "upland riparian" landowners under Rule 18-21.004(3)(b), F. A. C.
 The Department's contention that the road easement constitutes a separate parcel of property
between Lots 16 and 17 and the MWH was rejected by the ALJ. Instead, the AU concluded that, due to the
absence of any proof in this case to the contrary, the Lays own to the centerline of the 60-foot road easement
shown on the boundary survey as a matter of established real property law. See, e.g., Smith v. Horn, 70 Fla.
484, 70 So. 435, 436 (Fla. 1915); Joseph v. Duran, 436 So.2d 316, 317 (Fla. 1st DCA 1983); Feig v. Graves, 100
So.2d 192, 196 (Fla. 2d DCA 1958). 1 agree with the ALJ's application of this settled rule of real property law to the
facts of this case.
In his Recommended Order, the AU asserted that there was no evidence presented at the DOM final
hearing that the road easement in question was ever officially dedicated to the public and/or that dedication
of the road easement was ever officially accepted by Lee County. The AU also asserted that no evidence was
presented at the final hearing that the developer of the Cayo Costa Subdivision retained any reversionary
interest in the road easement. Neither of these assertions of the AU was challenged by the Department in its
Exceptions.
I further agree with the ALJ's related finding that the Lays' ownership to the centerline of the 60-foot wide road
easement would place the MHW adjacent to property owned by the Lays at the point where the proposed dock is to
be built. Therefore, contrary to the Department's claim, the boundary survey does not establish that there is a
separate upland parcel of land not owned by the Lays between the eastern boundaries of Lots 16 and 17 and
the MHW at the dock site.
Consequently, even when the boundary survey relied upon by the Department is taken into
consideration, it still fails to establish that the Lays are not "upland riparian" landowners under Rule
18-21.004(3)(b), F.A.C. I thus reject the Department's suggestion that the matters reflected in the boundary
survey constitute "critical newly discovered evidence" rendering the doctrine of administrative finality
inapplicable to the final action of this agency granting the two consents of use to the Lays in the year 2000.
I acknowledge that there is Florida case law concluding that, notwithstanding the administrative finality
doctrine, a state agency may revoke or modify a prior final action under "extraordinary circumstances." See, e.g.,
Russell v. Dept. of Business & Professional Regulation, 645 So.2d 117, 119 (Fla. 1st DCA 1994); Richter v. Florida
Power Corp., 366 So.2d 798, 800 (Fla. 2d DCA 1994). However, for the reasons stated above, I do not view the
boundary survey received by the Department in January of 2001 to be the source of such "extraordinary
circumstances" as to warrant the revocation of the two consents of use granted to the Lays in the year 2000.
I also recognize that, notwithstanding the administrative finality doctrine, a state agency may be expressly
authorized by statute or rule to revoke or modify a prior final action under certain conditions. For instance, the
Department is expressly authorized to suspend and/or revoke regulatory "permits" under stated conditions pursuant to
Rules 62-4.100 and 62-343.140, F.A.C. However, the courts have ruled that the term "permit," within the context of
environmental regulation provisions, does not include a lease, license, easement, or other form of consent to use
sovereign submerged lands granted pursuant to Chapter 253, Florida Statutes, and Chapter 18-21, F.A.C. Graham v.
Edwards, 472 So.2d 803, 807 (Fla. 3d DCA 1985).
Accordingly, the Department's Exception No. 1 is denied.

Exception No. 2

In its second Exception, the Department objects to the ALJ's Conclusions of Law 13, 14, 15, and 21. The
challenged legal conclusions of the AU deal with the apparent lack of any express statutory or rule authority for the
Department to revoke a prior final agency action granting a consent of use of sovereign submerged lands on behalf of
the Trustees. In my preceding ruling, I determined that the Department's attempted revocation of the two consents of
use granted to the Lays in the year 2000 is precluded by the doctrine of administrative finality. The Department's
second Exception is also denied for the same reason. I would also note that the Department's second Exception fails
to cite to any statute or administrative rule expressly authorizing the Department to revoke, on behalf of the Trustees,
a prior final agency action granting a consent of use of sovereign submerged lands.
I agree that when the Department is exercising its delegated authority from the Trustees, it is acting in a
proprietary capacity that is different from this agency's regulatory capacity. Accord Graham, 472 So.2d at 807. 1 am
also aware that there is case law suggesting that a prior consent of use of sovereign submerged lands may be subject
to revocation under some conditions, provided that there is compliance with the provisions of the Florida
Administrative Procedure Act ("APA"). See Trustees v. Barnett, 533 So.2d 1202, 1206 (Fla. 3d DCA 1988). In any
event, I conclude that the boundary survey relied upon by the Department does not reflect the existence of conditions
that are sufficient to warrant revocation of the two consents of use previously granted to the Lays, even though the
requirements of the APA were met in this case.
The Department's Exception No. 2 is thus denied.

Exception No. 3

The Department's third Exception objects to the ALJ's Conclusions of Law 19 and 20. The Department
contends that these legal conclusions of the AU should be rejected because both the AU and the Department lack
jurisdiction to resolve the real property issues raised by the boundary survey and the road easement. However, I do
not find this contention of the Department to be persuasive.
In the course of reviewing applications for authorizations to use sovereign submerged lands, the Department
is required by law to make an initial determination that the applicant is an "upland riparian owner" or has "sufficient title
interest in uplands for the intended purpose." See Rule 18-21.004(3), F.A.C. The only reason given by the
Department for initially considering the subject boundary survey was to determine whether it contained data indicating
whether or not the Lays were upland riparian landowners as required by Rule 18-21.004(3).
If the Department does lack jurisdiction to determine whether an applicant is an "upland riparian owner" within
the purview of Rule 18-21.004(3), then the provisions of this Trustees rule would be rendered essentially
meaningless. In every proceeding where an applicant's position as an upland riparian owner is disputed by the
Department, the matter would presumably then have to be submitted to a circuit court for resolution. The judiciary, and
not the Department, would thus become the reviewer of these disputed applications for authorizations to use
sovereign submerged lands.
In addition, the Department's claim that this agency lacks jurisdiction to resolve the real property issues
incidental to the determination of whether the Lays are upland riparian owners appears to be directly inconsistent with
the prior actions of this agency. The very agency action contested in this proceeding involves a preliminary
determination by the Department that the Lays are not upland riparian owners and are thus not entitled to a consent of
use of sovereign submerged lands.
It is undisputed that the boundary survey was cited by the Department as the primary basis for its
determination that revocation of the consents of use was warranted. See DEP's Ex. 15. If the Department now lacks
jurisdiction to consider the upland riparian ownership issues presented in the subject boundary survey, then it would
have also lacked jurisdiction to consider and rely on the boundary survey as the primary basis for revoking the
consents of use granted to the Lays.
With respect to the suggestion that DOM also lacks jurisdiction to resolve the real property issues raised in
the subject boundary survey, it was the Department that gave the Lays written notice that they could contest the
agency action revoking the consents of use by filing a petition for an administrative hearing. See DEP's Ex. 15. It was
also the Department, not the Lays, that referred this matter to DOM for a formal administrative hearing. I would further
note that it was the Department, not the Lays, that relied heavily on the boundary survey to support its legal position in
the course of the DOM proceedings.
The Department's Exception cites to statutory and case law supporting the general proposition that the circuit
courts of this state have exclusive original jurisdiction in "all cases involving the title and boundaries to real property."
However, the Department's reliance on this statutory and case law is misplaced. This is not an action involving a
dispute between the Lays and a third party as to the boundaries of or title to the road easement shown on the
boundary survey.
This is also not an action where the Department is seeking a determination that the Trustees have title to all
or a portion of the road easement. The Department's own witness, Mark Miller, testified at the DOAH final hearing that
a determination was made by the Department's title and land section that "the State did not actually own that real
property, but they could not determine who did own that property." (Final Hearing Tr., page 24)
In view of the above, the Department's Exception No. 3 is denied.

Exception No. 4

The Department's fourth and final Exception does not object to any existing language set forth in the ALJ's
Recommended Order. Instead, the Department contends that the AU "appears to apply a 'clear and convincing
evidence' standard in Conclusions of Law 15, 18, 19, 20, and 21." Nevertheless, there is no reference by the AU in the
Recommended Order to the phrase "clear and convincing evidence." To the contrary, as noted in the Department's
Exception, the AU asserts in his Conclusion of Law 12 that the Department "has the burden to prove legal grounds for
revocation by [a] preponderance of the evidence."
Assuming that the burden of proof is on the Department in a proceeding where a party is challenging an
agency action revoking a prior proprietary authorization, then I agree that the appropriate standard of proof to be
imposed on the Department is the "preponderance of the evidence" standard. Moreover, I do not construe the
provisions of Conclusions of Law 15, 18, 19, 20, and 21 to embody a tacit endorsement by the AU of a "clear and
convincing evidence" standard of proof in this administrative proceeding.
The Department's Exception No. 4 is denied.
 It is therefore ORDERED:
A. The Recommended Order of the ALJ, with the modified case style, is adopted and incorporated by reference
herein.
B. The Department's preliminary action issuing the revocation letter to the Lays on January 18, 2001, is hereby
DISAPPROVED.
C. This administrative proceeding seeking the revocation of two consents of use granted in DEP File Nos.
36-0172390-001 and 36-0172390-002 is DISMISSED.
Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68,
F.S., by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the
Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida
32399-3000; and by filing a copy of the Notice of Appeal with the applicable filing fees with the appropriate District Court
of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the Department
clerk.
DONE AND ORDERED this 27th of September, 2001, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

DAVID B. STRUHS
Secretary
Marjory Stoneman Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000

Endnotes:
1
The Recommended Order lists the Department as the "Petitioner" and John and Janet Lay as the "Respondents."
Nevertheless, it is undisputed that it was the Lays who filed a petition with the Department contesting the agency action
revoking two prior consents of use authorizing the Lays to use sovereign submerged lands to build their single-family
dock. Thus, the Lays are the Petitioners, rather than the Respondents, in this administrative proceeding
2
The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida ("Trustees"), which holds the title to
state lands, has delegated to the Department the authority to grant proprietary authorizations to use sovereign submerged
lands for private single-family docks like the one proposed to be built by the Lays.

[DOAH RECOMMENDED ORDER ATTACHED]

 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )
PROTECTION, )
)
Petitioner, )
) Case Nos. 01-1541
vs. ) 01-1542
)
JOHN LAY and JANET LAY, )
)
Respondents.
)
)
 RECOMMENDED ORDER

On June 29, 2001, a final administrative hearing was held in these cases before J. Lawrence Johnston,

Administrative Law Judge (ALJ), Division of Administrative Hearings (DOAH). The hearing was conducted by televideo

connecting hearing locations in Tallahassee and Fort Myers, Florida.

APPEARANCES

For Petitioner: Francine M. Ffolkes, Esquire

Department of Environmental Protection
3900 Commonwealth Boulevard
The Douglas Building, Mail Station 35
Tallahassee, Florida 32399-3000
For Respondents: John Lay and Janet Lay, pro se
3901 Southwest 27th Court
Cape Coral, Florida 33914

STATEMENT OF THE ISSUE

The issue is whether the Department of Environmental Protection (DEP) should revoke two consents of use

issued to the Lays for construction of an exempt dock on Cayo Costa Island near Pelican Bay in Lee County.

PRELIMINARY STATEMENT

On January 18, 2001, DEP gave notice of intent to revoke the Lays' two consents of use. The next day, the Lays

requested administrative proceedings, which were referred to DOAH on April 25, 2001. (The reason for the delay is not

clear from the record.) At DOAH, the two cases were consolidated and set for final hearing on June 29, 2001. Later, final

hearing was converted to televideo.

At final hearing, DEP called Mark Miller, its environmental manager in the submerged lands and environmental

resources program in DEP's South District office in Fort Myers, Florida. DEP also had DEP Exhibits 1-16 admitted in

evidence. The Lays testified in their own behalf and had Respondents' Exhibits 1, A, C, E, G, H, and I (the latter being

photographs filed after the hearing) admitted in evidence. DEP recalled Miller in rebuttal.

DEP ordered a transcript of final hearing, and the parties were given ten days from filing of the transcript in which

to file proposed recommended orders (PROs). The Transcript was filed on July 9, 2001. Only DEP filed a PRO, which

has been considered.

FINDINGS OF FACT

1. In spring 2000, after contracting to purchase Lots 16 and 17 in the Cayo Costa Subdivision on Cayo Costa

Island in Lee County, but before closing, the Lays contacted Peggy Grant, an environmental specialist in DEP's South

District office in Fort Myers, Florida, to inquire whether it would be possible to construct a single-family dock on and over
sovereign submerged land owned by the State of Florida in a lagoon west of Pelican Bay. The Lays testified without

contradiction that, in making their inquiry, they showed Grant a boundary survey of the property. The boundary survey

showed that there was a strip of road easement above the mean high water (MHW) line east of all of Lots 16 and 17

except for the extreme southeast corner of the lots. According to the Lays, again without direct contradiction, Grant told

them that it would be possible to construct a dock into the lagoon because the lots were riparian to the lagoon at least at

the southeast corner. It was not clear from the evidence whether Grant told the Lays that their dock could emanate from

parts of their lots other than the southeast corner. The Lays subsequently closed on the property.

2. On July 12, 2000, the Lays filed a consolidated application for exemption from the need to obtain an

environmental resource permit and for consent of use for a 208 square-foot single-family dock emanating from the

easternmost point of the boundary between Lots 16 and 17--a point from which the dock would have to traverse

approximately 10-15 feet of land above MHW designated as roadway easement on the boundary survey.

3. The Lays testified that the boundary survey was part of the application, but no boundary survey was contained

in DEP's files, and it is found that the application did not include the boundary survey. It is found that the Lays, in

testifying as they did, confused the application submission with the inquiry of Peggy Grant in spring 2000. There was no

other information in the application indicating a road easement or the location of MHW.

4. After the Lays filed their application, DEP located the site on an aerial produced by DEP's Geographic

Information System and conducted a site visit. During this phase, DEP and the Lays focused on minimizing impact on

mangroves bordering the lagoon. Negotiations ensued, and the Lays eventually agreed to submit additional information

down-sizing their proposed dock to 58 square feet. The revised application was granted on August 21, 2000, under DEP

File No. 36-0172390-001.

5. The consent of use included General Consent Conditions. Among other things, they stated: "The Letter of

Consent associated with these General Consent Conditions as well as these conditions themselves are subject to

modification after five (5) years in order to reflect any applicable changes in statutes, rule or policies of the Board [of

Trustees of the Internal Improvement Trust Fund] or its designated agent [DEP]." There were no other conditions or

statements regarding modification or revocation of the consent of use.

6. After obtaining their exemption and consent of use, the Lays realized they needed a larger dock. On

September 11, 2000, they applied for an exemption and consent of use for a 114 square-foot single-family dock. The

Lays concede that the boundary survey was not included in this application. This application was granted on October 14,

2000, under DEP File No. 36-0172390-002. It included the same General Consent Conditions as the first consent of use

for the 58 square-foot dock and no other conditions or statements regarding modification or revocation of the consent of
use.

7. The Lays next approached Lee County for a permit for their dock. They showed Lee County their DEP

exemption and consent of use and their boundary survey. On November 13, 2000, Lee County informed the Lays that the

County permit could not be issued due to County setback requirements from the road easement shown on the boundary

survey. The Lays then asked for consideration of a variance from the setback requirements or vacation of the road

easement (which clearly could serve no purpose or be of any use as a road).

8. At that point, the County referred the matter to the County Attorney's office for a legal opinion. On

December 29, 2000, a memorandum opinion was prepared to the effect that the road easement, if implicitly

offered for dedication by filing of the Second Revised Plat of Cayo Costa Subdivision in the early 1910's, was

never accepted by the County. The County surmised that the road easement belonged to the State of Florida. For that

reason, no setback requirements from a road easement applied, and the County permit could be issued.

9. The Lays were informed of the County's legal opinion in early January 2001. They were told that the County

informed DEP of the legal opinion and the boundary survey and that the Lays could expect to receive their County permit

shortly.

10. When DEP was informed about the County's legal opinion, DEP had a copy faxed to its Office of General

Counsel in Tallahassee on January 12, 2001, along with a copy of the boundary survey. Upon review of the

documentation, DEP came to the conclusion that the Lays were not riparian owners at the point of their proposed dock (at

the southeast corner of Lot 16 and northeast corner of Lot 17) as a result of the road easement. On January 18, 2001,

DEP gave the Lays notice of DEP's intent to revoke both consents of use (for the 58 and 114 square-foot docks).

11. DEP takes the position not only that it did not have the benefit of the boundary survey in either application for

exemption and consent of use but also that it accepted at face value the representations in the applications that the Lays

were riparian owners where they proposed to build their dock. Actually, the Lays' applications did not contain explicit

representations to riparian ownership. But they did state that the Lays owned "the property described," or had "legal

authority to allow access to the property," and did list only "Florida Department of Parks and Recreation" as the only

adjoining property owner. In addition, they implicitly represented entitlement to the exemptions and consent of use

applied for.

CONCLUSIONS OF LAW

12. Since DEP seeks revocation of exemptions and consents of use issued to the Lays, DEP has the burden to
prove legal grounds for revocation by preponderance of the evidence. See Balino v. Dept. of Health & Rehabilitative

Servs., 348 So. 2d 349 (Fla. 1st DCA 1977).

13. DEP cites no statutory or even rule authority for revocation of a consent of use issued under Rules Chapter

18-21. (Rule citations are to the current Florida Administrative Code. Statute citations are to sections of the 2000

codification of Florida Statutes.) Contrast Walker v. Dept. of Business and Prof. Reg., 705 So. 2d 652 (Fla. 5th DCA

1998); Libby Investigations v. Dept. of State, Div. of Licensing, 685 So. 2d 69 (Fla. 1st DCA 1986); Bill Salter Outdoor

Advertising, Inc. v. Dept. of Transp., 492 So. 2d 408 (Fla. 1st DCA 1996); Farzad v. Dept. of Prof. Reg., 443 So. 2d 373

(Fla. 1st DCA 1983).

14. DEP's PRO implies that Rule 62-343.140(1) states grounds for revocation of the Lays' consents of use. It

provides: "The Department shall revoke or suspend a permit when necessary to protect the public health, safety or

welfare." But Rules Chapter 62-343 applies to environmental resource permits, not to consents of use of sovereign

submerged lands. Although (in accordance with Sections 373.427 and 253.77(2) and Rules 62-110.106 and 62-312.065)

DEP combined the processing and review of applications for both exemptions under Rules Chapter 62-343 and consents

of use under Rules Chapter 18-21, this was done for administrative convenience and efficiency. It did not make

exemption rules apply to consent of use applications (or vice versa).

15. Assuming Rule 62-343.140(1) applied and established the grounds for revocation of consents of use,

DEP failed to prove that revocation of the Lays' consents of use is "necessary to protect the public health, safety

or welfare."

16. In DEP v. Brotherton and Sportsman's Lodge Development Corp., DEP OGC Case No. 96-2581, DOAH

Case No. 96-6070 1997 WL 594059, (Fla. Dept. Env. Prot. 1997), DEP addressed the authority of an agency to modify

final orders under somewhat analogous circumstances. There, DEP's predecessor agency, the Department of

Environmental Regulation (DER), issued Brotherton an exemption to repair a dock. Brotherton claimed ownership based

on a warranty deed to a condominium unit, together with an undivided share in the common elements of the

Condominium, including "items of personal property . . . including the private dock located thereon." In giving this

warranty deed, Brotherton's seller relied on a letter from the seller's predecessor in title that "[y]our boat dock will remain

permanently assigned to your unit as a limited common element reserved for use by your unit" in consideration of

execution of amended Condominium documents. In exempting the dock, DER notified Brotherton that "the exemption

determination may be revoked 'if the basis for the exemption is determined to be materially incorrect.'" Id. at page 2.

When the effectiveness of the conveyance of the dock to Brotherton was questioned, DEP sent Brotherton a letter

revoking Brotherton's exemption. But in the Final Order, DEP rejected the letter based on the doctrine of "administrative
finality."

17. In the Brotherton Final Order, DEP stated at pages 4-5:

In the landmark case of Peoples Gas System, Inc. v. Mason, 187 So.2d 335 (Fla.
1966), the Florida Supreme Court recognized that administrative agencies have inherent
authority to modify prior final orders still under their control where it is demonstrated that
such modification "is necessary in the public interest because of changed
circumstances." Id. at 339. Nevertheless, in the Peoples Gas opinion, the court cited a
line of cases holding that this inherent authority of an administrative agency to modify a
prior final order is a limited one and concluded that:
The effect of these decisions is that orders of administrative agencies
must eventually pass out of the agency's control and become final and
no longer subject to modification. This rule assures that there will be a
terminal point at which the parties and the public may rely on a decision
of such an agency as being final and dispositive of the rights and issues
involved therein. This is, of course, the same rule that governs the
finality of courts. It is as essential with respect to orders of administrative
bodies as with those of courts.
Id. at 339.
The court concluded in Peoples Gas that an attempted modification by the Public
Service Commission of a final order four years after it was entered was improper based
on the rule of finality of administrative orders. This rule of "administrative finality" was
later reaffirmed in Austin Tupler Trucking, Inc. v. Hawkins, 377 So.2d 679 (Fla. 1979). In
the Austin Tupler case, the court held that to allow the Public Service Commission to
revisit the issues decided in a final order entered two years earlier would "contravene the
sound principles of finality enunciated in People's Gas." [FN9] Id. at 681.
In this administrative proceeding, the primary reason given for the Department's
attempted revocation of DER's 1993 Letter of Exemption No. 092309393 was that the
information submitted by Brotherton in his 1993 application "has been determined to be
materially incorrect" in that:
In paragraph 14.A.1. of the application you state that you are the record
owner or the record easement holder of the property. The Warranty
Deed provided by you does not indicate evidence of the above. (DEP's
Exhibit 4)
It is undisputed that Brotherton did represent in his 1993 exemption application form
submitted to DER that he was "the record owner ... of the property on which the
proposed project is to be undertaken, as described in the attached legal document." It is
also undisputed that the attached legal document (copy of an executed and recorded
warranty deed) purported to convey to Brotherton fee simple title to Condominium Unit
No. 5, together with title to the dock in question as personal property. (DEP Exhibit 3,
attachment "A"). The specific nature of the record ownership interest received by
Brotherton in the upland property adjacent to the dock, however, is unclear from the face
of the warranty deed attached to his application. [FN10]
Even assuming that the warranty deed attached to Brotherton's 1993 application
did not substantiate that he had sufficient record ownership interest in the dock and
adjacent uplands to be entitled to the requested regulatory exemption/consent of use
determination, these purported property title defects were readily apparent on the face of
this deed. [FN11] Thus, the record in this case does not demonstrate that the
Department's attempted revocation of DER's Letter of Exemption No. 092309393 is
based on critical newly-discovered evidence not included in Brotherton's 1993 exemption
application package.
There are no allegations or proof in this proceeding that Brotherton willfully
falsified any representations in the application forms and supporting documents filed with
DER in 1993. Neither are there any allegations or proof that Brotherton willfully
concealed from DER relevant information adverse to his exemption application. If there
were allegations and proof in this case of such willful misconduct on the part of
Brotherton, this may have been sufficient to support the propriety of the Department's
preliminary action in 1996 seeking revocation of DER's 1993 regulatory
 exemption/consent of use determination.
The Department's legal position throughout these proceedings implies that DER
did not conduct an adequate review of Brotherton's application in 1993 with respect to his
consent of use request. The Department's contention suggests that DER either
overlooked or misconstrued the provisions of Rule 18-21.004(3)(b), Florida
Administrative Code, in granting the consent of use to Brotherton. I decline to rule on the
merits of such a proposition based on the "administrative finality" doctrine discussed
above.

18. Comparing this case to the Brotherton case, DEP contends essentially that the Lays' applications were

"materially incorrect." While the alleged defects in the applications were not "readily apparent on the face of" the

applications, neither is there any evidence that the Lays "willfully falsified any representations in the application forms and

supporting documents" or "willfully concealed from DEP relevant information adverse to [their] exemption application[s]."

While the facts in this case are not identical to those in Brotherton, it is concluded that the consents of use in this case,

like the exemption in Brotherton, should not be revoked, based on the "administrative finality" doctrine discussed above.

19. Beyond the doctrine of "administrative finality," it is concluded that DEP did not prove that the representations

in the Lays' applications were false. Under Florida law, "in the absence of a contrary showing," conveyance of Lots

16 and 17 included title to the centerline of the road east of the Lays' property, subject to the easement dedicated

to Lee County by platting of the Cayo Costa Subdivision in the early 1910's; and, since the County either did not

accept or has abandoned the road easement, the Lays own to the centerline of the road easement free and clear

of any easement. See Smith v. Horn, 70 Fla. 484, 489, 70 So. 435, 436 (1915); Calvert v. Morgan, 436 So. 2d 314

(Fla. 1st DCA 1983). DEP did not prove that MHW is to the west of the centerline of the platted road easement at

the point of the Lays' proposed dock.

20. As suggested by Smith v. Horn, it was possible for the conveyance of Lots 16 and 17 from the owner

who platted the Cayo Costa Subdivision to have excluded title to the road easement (or to have retained a

reversionary interest). If so, the Lays would not own to the centerline of the road easement. See Servando Bldg.

Co. v. Zimmerman, 91 So. 2d 289, 291-292 (Fla. 1956); Peninsula Point, Inc. v. South Georgia Dairy Co-op, Inc.,

251 So. 2d 690, 692-693 (Fla. 1st DCA 1971). But DEP did not prove that the deeds to Lots 16 and 17 included

such a provision. For that reason, DEP did not prove that the Lays do not own to the centerline of the platted

road easement and did not prove any misrepresentations in the Lays' applications for consent of use.

21. Finally, in Bd. Of Trustees of Internal Improvement Trust Fund v. Barnett, 533 So. 2d 1202, 1206-1207 (Fla.

3d DCA 1988), the court approved a lower court conclusion of law rejecting a contention that "rights acquired from the

State in its proprietary capacity may be revoked at any time before the holder changes his position in reliance on the

right." DEP properly has not taken such a position in this case. (Nor did DEP prove that the Lays did not change position
in reliance on the consents of use.)

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that DEP enter a final order: (1) disapproving DEP's notice dated January 18, 2001, of intent

to revoke the Lays' two consents of use; and (2) dismissing this administrative proceeding in which DEP seeks revocation

of its two consents of use.

DONE AND ENTERED this 14th day of August, 2001, in Tallahassee, Leon

County, Florida.
___________________________________
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 14th day of August, 2001.

COPIES FURNISHED:

Francine M. Ffolkes, Esquire

Department of Environmental Protection
3900 Commonwealth Boulevard
The Douglas Building, Mail Station 35
Tallahassee, Florida 32399-3000
John and Janet Lay
3901 Southwest 27th Court
Cape Coral, Florida 33914

Kathy C. Carter, Agency Clerk

Office of General Counsel
Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000

David B. Struhs, Secretary

Department of Environmental Protection
3900 Commonwealth Boulevard
The Douglas Building
Tallahassee, Florida 32399-3000
 STATEMENT OF THE FACTS

Public records confirm that Busse owns a lot in a platted subdivision located

in Lee County. This lot (50' x 130') abuts a platted 60 foot wide street. At some point

westward of the street is the Gulf of Mexico Since the subdivision was platted in

1912, considerable accretion has occurred on land bordering the Gulf of Mexico

westward of Busse’s lot. Appellant claims riparian rights. Lee County has claimed

said accreted lands for public park purposes.

4
 CASE NO. 08-13170-B
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ATLANTA, GEORGIA

JORG BUSSE,

Plaintiff-Appellant,

v.

LEE COUNTY, FLORIDA; BOARD OF LEE

COUNTY COMMISSIONERS; LEE COUNTY
PROPERTY APPRAISER; STATE OF FLORIDA
BOARD OF TRUSTEES OF THE INTERNAL
IMPROVEMENT FUND, STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,

Defendants-Appellees.
__________________________________/
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT COURT OF FLORIDA, FORT MYERS DIVISION
_________________________________________________________________
ANSWER BRIEF OF DEFENDANT-APPELLEE,
LEE COUNTY, FLORIDA and BOARD of LEE
COUNTY COMMISSIONERS

DAVID M. OWEN
LEE COUNTY ATTORNEY
2115 Second Street
Post Office Box 398
Fort Myers, Florida 33902
(239) 533-2236
(239) 485-2118 FAX

JACK N. PETERSON
Assistant County Attorney
 TABLE OF CONTENTS

Page

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Nature of the Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Disposition Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. The District Court properly dismissed the complaint for lack of
federal subject matter jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

i
 TABLE OF CITATIONS

CASES PAGE

Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1329 (11th Cir. 2006) . . . . . . . . . . . 7

Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . 5, 7

L.A. Draper v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428 (1984) . . . . . . . . . . . 8

Mobil Oil Corp. v. Coastal Petroleum Co., 671 F.2d 419, 422 (11th Cir. 1982) . . 7

Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004) . . . . . . . . . . . 8

U.S. v. 16.33 Acres of Land in Dade County, State of Florida, 551 F.2d 678, 679
(11th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Williamson County Regional Planning Com’n v. Hamilton Bank, 473 U.S. 172,
195 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATUTES

28 U.S.C. §1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Florida Rules of Appellate Procedures

Fed. R. App. P. 32(a)(7)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

RULES

Eleventh Cir. R. 28-1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

ii
 BUSSE V. LEE COUNTY, et al. Docket No. 08-13170-B

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record, pursuant to Eleventh Cir. R. 28-1(b),

certifies that the following persons have an interest in the outcome of this appeal:

1. Jorg Busse, Appellant;

2. The State of Florida, Appellee;

3. L. Kathryn Funchess, attorney for Appellee, State of Florida;

4. Sherri L. Johnson, attorney for Appellee, Lee County Property Appraiser;

5. Lee County, Florida, Appellee;

6. Jack N. Peterson, attorney for Appellee, Lee County;

7. Honorable Sheri Polster-Chappell, Magistrate Judge;

8. Reagan K. Russell, attorney for Appellee, State of Florida;

9. Honorable John E. Steele, United States District Judge;

10. Kenneth M. Wilkinson, Appellee, Lee County Property Appraiser.

iii
 BUSSE V. LEE COUNTY, et al. Docket No. 08-13170-B

STATEMENT OF JURISDICTION

Jurisdiction of this cause is vested in the United States Court of Appeals

pursuant to 28 U.S.C. §1291, review being sought of a final decision of the United

States District Court for the Middle District of Florida.

iv
 STATEMENT REGARDING ORAL ARGUMENT

The issues before the Court are neither complex nor unique. The facts are

adequately before the Court in the record. Legal argument is sufficiently presented

in the appellees’ briefs. Oral argument will not benefit the Court and serve only to

increase the costs of appeal to the appellees.

v
 STATEMENT OF THE ISSUES

Judge Steele did not abuse the Court’s discretion by dismissing Busse’s Third

Amended Complaint for lack of subject matter jurisdiction. Other issues raised in

Busse’s initial brief are too disjointed and disconsonant to permit reply.

1
 STATEMENT OF THE CASE

1. Nature of the Suit

Appellant Busse claims to own and public records confirm his ownership of a

50' x 130' lot bordering a platted 60' street on a barrier island in Lee County named

Cayo Costa. Busse claims riparian rights. The State, the County and the Property

Appraiser deny his claim of riparian rights.

2. Course of Proceedings

Busse’s various attempts to frame a complaint (Dkt. Nos. 1, 25, 102, 282,

288) were dismissed by the Court (Dkt. Nos. 87, 267, 338). Between these events,

Busse, in what can only be termed as vexatiously, filed a barrage of “motions” (e.g.

Dkt. No. 65: “emergency motion for criminal prosecution of defendants’ lawyers”;

Dkt. No. 68: “plaintiff’s motion for emergency hearing on the issue of defendants’

1969 bogus resolution”; Dkt. No. 70:, inter alia, “motion to restrain defendants...from

use of deadly weapons in the private Cayo Costa subdivision”) and other pleadings

variously termed “notices” (e.g. Dkt.Nos. 48, 62, 63, 92, 221), “responses”,

“exhibits”, “evidence”, “interrogatories”, “affidavits”, “memorandums”, etc. The

docket below stands res ipsa loquitur.

Busse, apparently as a litigation tactic, also filed formal complaints with the

2
Florida Bar Association against Appellees’ lawyers (Dkt. Nos. 194, 197, 201, 204,

205, 236, 272, 275, 306). Appellant also filed complaints with the Florida

Commission on Ethics against Counsel (Dkt. Nos. 278, 279). Busse was sanctioned

by the Court (Dkt. Nos. 242, 252, 280) and thereafter, was directed to seek leave of

Court prior to filing any pleading. Busse was also directed to desist “the continual

flood of irrelevant, immaterial and unwarranted emails” to the defendants and their

employees (Dkt. No. 261).

3. Disposition Below.

The District Court thereupon granted the State of Florida’s motion to dismiss

for lack of jurisdiction (Dkt. No. 291) and Lee County’s motion to dismiss (Dkt. No.

304) at Dkt. No. 338.

This appeal followed.

3
 STATEMENT OF THE FACTS

Public records confirm that Busse owns a lot in a platted subdivision located

in Lee County. This lot (50' x 130') abuts a platted 60 foot wide street. At some point

westward of the street is the Gulf of Mexico Since the subdivision was platted in

1912, considerable accretion has occurred on land bordering the Gulf of Mexico

westward of Busse’s lot. Appellant claims riparian rights. Lee County has claimed

said accreted lands for public park purposes.

4
 STANDARD OF REVIEW

Judge Steele’s granting the State, County and Property Appraisers’ motions to

dismiss Busse’s Third Amended Complaint is subject to appellate review de novo.

Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).

5
 SUMMARY OF ARGUMENT

The District Court, Judge Steele, correctly dismissed Busse’s Third Amended

Complaint. The Court, after an exhaustive review of Busse’s claims and noting that

being pro se, the claims would be liberally construed, properly found no federal

subject matter jurisdiction. Lacking federal subject matter jurisdiction, the Court

properly declined to exercise supplemental jurisdiction over any state law claims

which may exist.

6
 ARGUMENT

1. The District Court properly dismissed the complaint for lack of federal subject
matter jurisdiction.

In an apparent attempt to enhance the value of his real property, Busse seems

to claim that riparian rights apply to his lot. Questions relating to ownership of real

property sound in state law. See, U.S. v. 16.33 Acres of Land in Dade County, State

of Florida, 551 F.2d 678, 679 (11th Cir. 1977). To maintain a case in federal court,

a plaintiff must allege as an essential element of his claim that a federally created

right or immunity has been impugned. Mobil Oil Corp. v. Coastal Petroleum Co.,

671 F.2d 419, 422 (11th Cir. 1982). Busse failed to articulate any such federal

interest.

Prior to dismissing the Third Amended Complaint and after spending “an

inordinate amount of time” analyzing Busse’s Amended Complaint (Dkt. No. 25),

Judge Steele instructed Busse to provide “a short, plain statement” regarding his

claims. (Dkt. No. 87). A district court on a motion to dismiss is generally limited to

reviewing the complaint’s “four corners.” Bickley v. Caremark RX, Inc., 461 F.3d

1325, 1329 (11th Cir. 2006). A reviewing court must construe the allegations of the

complaint in the light most favorable to the plaintiff. Hill v. White at 1335. After

what can only be called another exhaustive analysis of Busse’s third attempt to state

7
a claim, the Court properly dismissed the case (Dkt. No. 338). The District Court did

find that Busse “adequately” alleges a taking of property. (Id.) However, Judge

Steele goes on to opine that a taking alone cannot grant federal jurisdiction and

remains subject to procedures for compensation through the State. Id. Not having

alleged any pursuit of state claims in state courts, Busse’s claim is not ripe for federal

jurisdiction. Williamson County Regional Planning Com’n v. Hamilton Bank, 473

U.S. 172, 195 (1985).

In Busse’s various complaints below and throughout his “initial brief” filed

before this Court, Busse chooses words and phrases such as “land grab” (p. 27);

“trespasses” (p. 28)’ “confiscation” (p. 29)’ and “misrepresentation” (p. 32), with

many terms highlighted and bolded for effect. Judge Steele correctly recognizes these

complaints as, if anything, sounding in tort and subject to state law (Dkt. No. 338)

over which he declined to assert supplemental jurisdiction. Id. (citing Raney v.

Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004)). Indeed, if all federal

claims are dismissed, the District Courts are “strongly” encouraged or even required

to dismiss state claims. L.A. Draper v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428

(1984). Having applied the correct law to the facts, Judge Steele correctly dismissed

the case.

8
 CONCLUSION

The District Court correctly and properly dismissed this case. Prior to doing

so, Judge Steele accorded Busse every opportunity to conform his pleadings to a

recognizable form. Upon Busse’s failure to do so, the Court applied the relevant law

and dismissed the case.

The District Court’s Order (Dkt. No. 338) should be sustained.

9
 CERTIFICATE OF COMPLIANCE RULE 32(a)

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 1,377 words, excluding the parts of the brief

exempted by Fed.R.App.P. 32(a)(7)(B)(iii). This brief has been prepared in a

proportionally spaced typeface using WordPerfect 10 font size 14Times New Roman.

By:________________________
JACK N. PETERSON
Attorney for Appellee Lee County

Dated: ____________

10
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August ____, 2008, I sent two true and correct

copies of the foregoing to: Jorg Busse, Post Office Box 1126, Naples, FL 34106-

1126; and one copy each to the following: Harold G. Vielhauer, Esq., L. Kathryn

Funchess, Esq. and Reagan K. Russell, Esq., Florida Department of Environmental

Protection, 3900 Commonwealth Blvd., M.S. 35, Tallahassee, FL 32399 and Sherri

L. Johnson, Dent & Johnson, Chartered, 3415 Magic Oak Lane, Post Office Box

3259, Sarasota, FL 34230.

DAVID M. OWEN
LEE COUNT ATTORNEY
2115 SECOND STREET
POST OFFICE BOX 398
FORT MYERS, FLORIDA 33902
(239) 533-2236

By:________________________
JACK N. PETERSON
Assistant County Attorney
Florida Bar No. 0832774

11
4/21/2010 FindACase™ | BERTHA K. SMITH v. C.…

Buy Document Now

BERTHA K. SMITH v. C. L. HORN (12/10/15)

SUPREME COURT OF FLORIDA

Docket Number available at www.versuslaw.com

Citation Number available at www.versuslaw.com

December 10, 1915

BERTHA K. SMITH, PLAINTIFF IN ERROR,

v.
C. L. HORN, DEFENDANT IN ERROR

Writ of Error to Circuit Court, Volusia County, Jas. W. Perkins, Judge.

F. W. Pope, for Plaintiff in Error;

Landis, Fish & Hull and H. A. Horn, for Defendant in Error.

Whitfield, J., Taylor, C. J., and Shackleford and Ellis, J. J., concur; Cockrell, J., absent on account of illness

Author: Whitfield

WHITFIELD, J. -- In an action of ejectment there was judgment for the defendant, and the plaintiff took writ of error. It appears by
an agreed statement of facts that the plaintiff Bertha K. Smith is the heir of John W. Smith, deceased; that said John W. Smith was
the original owner of property which he had surveyed, mapped and platted as "Memento" and filed the plat with the Clerk of the
Circuit Court; that property in controversy is a part of "Memento," being the part shown on the map as "Cemetery Street," lying
between Seabreeze Avenue and Duke Street, and between Blocks 14 and 19 of "Memento" as platted; that from the time of making
and filing said map of "Memento" until the commencement of this suit, the property described in plaintiff's declaration has never
been used as a street, highway or passageway by the public or any persons; that the town has never taken any steps toward
clearing, grading or in any manner improving the said street for street purposes or any other public purposes; that however the
property up until the time of the vacation of the same was not fenced nor claimed by any person as against the easement of the
public; that neither the plaintiff, nor her father, John W. Smith, have owned any property on either side of the land described in
plaintiff's declaration since July 18th, 1902; that the defendant claims title to the said land in which he is in possession, as an
abutting owner of a part and as a purchaser of the balance, through the following chain of title; that on February 10th, 1885, John
W. Smith secured a patent to lots 3 and 4, section 5, township 15 south, range 33 east, the property described in plaintiff's
declaration being a part thereof; that in August, 1884, John W. Smith had such property surveyed, mapped and platted and called it
the town of Memento, dividing it into lots and blocks and separating the blocks by streets and giving the streets names. The land
described in plaintiff's declaration being the street as shown on said map as lying between blocks fourteen and nineteen and
between Seabreeze Avenue and Duke Street; that on February 14th, 1890, John W. Smith, joined by his wife, conveyed by
warranty deed to W. A. Glover, all of block nineteen of Memento, according to the map of Memento, on record; that on April 5th,
1895, W. A. Glover, joined by his wife, conveyed by warranty deed to C. C. Post all of block nineteen of Memento, according to the
map of Memento on record; that on May 13th, 1903, C. C. Post, joined by his wife, conveyed by warranty deed to C. L. Horn, all of
block nineteen of Memento, according to the map of Memento on record; that C. L. Horn, the defendant, is still the owner of the
west five feet of the southerly one hundred and ten feet of block nineteen of Memento, this strip of land lying next to and abutting
that part of the lands described in plaintiff's declaration which defendant claims as an abutting owner, claiming to the center of the
said street; that on July 18th, 1902, Bertha K. Smith, plaintiff herein, joined by her husband, by warranty deed, conveyed to the
Pinewood Cemetery Association all of block fourteen, Memento, excepting such lots or parts of lots as they had previously
conveyed, such property having come to her as heir of John W. Smith, deceased; that on September 28th, 1912, the Pinewood
Cemetery Association conveyed to C. L. Horn, the defendant herein, a strip of land ten feet wide and one hundred and ten feet
long, being the east ten feet of the southerly one hundred and ten feet of the west one-half of the land described in plaintiff's
declaration, the Cemetery Association claiming title thereto as an abutting owner of said vacated street; that in the early part of the
year 1905, the town of Daytona Beach, Florida, was incorporated under the general incorporation laws of the State of Florida; that
the town council of the town of Daytona Beach, Florida, authorized D. D. Rogers, C.E., to make a map of the incorporated town of
Daytona Beach; that a map of the said town of Daytona Beach was so made and placed on record in the office of the clerk of the
Circuit Court of Volusia county, Florida, on January 8th, 1906, a certified copy of said map being hereto attached and marked
"Exhibit B"; that on the map of the incorporation of the town of Daytona Beach, Florida, above referred to, the property described in

…findacase.com/…/wfrmDocViewer.aspx 1/3
4/21/2010 FindACase™ | BERTHA K. SMITH v. C.…
plaintiff's declaration is described thereon as "Hollywood Street:" that on the 28th day of February, 1910, the town council of the
town of Daytona Beach, Florida, passed an ordinance vacating as a street the property described in plaintiff's declaration, which
said street is and was within the incorporated limits of the town of Daytona Beach, Florida; that on May 9th 1914, the heirs of John
W. Smith, by their attorney, F. W. Pope, sent a communication to the mayor of the town of Daytona Beach, Florida, notifying him that
the heirs of John W. Smith, deceased, thereby withdrew any dedication or intended dedication to the land described in plaintiff's
declaration.

For the plaintiff in error it is contended that since it is expressly stipulated "that from the time of making and filing said map of
'Memento' until the commencement of this suit, the property described in plaintiff's declaration has never been used as a street,
highway or passageway by the public or any persons; that the town has never taken any steps toward clearing, grading or in any
manner improving the said street for street purposes or any other public purposes; that, however, the property up until the time of
the vacation of the same was not fenced nor claimed by any person as against the easement of the public," the title to the space
designated as a street on the map remained in the dedicator and consequently the judgment should have been for the plaintiff.
This contention would have force in determining the rights of the parties if it were not also expressly stipulated that the dedicator
subsequently conveyed block 19 of "Memento" "according to the map of Memento on record"; and that the dedicator's sole heir
conveyed "all of block fourteen. Memento, excepting such lots or parts of lots as had been previously conveyed, such property
having come to her as heir of John W. Smith, deceased."

Where the owner of land has it surveyed, mapped and platted showing subdivisions thereof, with spaces for intervening streets or
other highways between the subdivisions clearly indicated upon the map or plat, and conveyances in fee of the subdivisions are
made with reference to such map or plat, the owner thereby evinces an intention to dedicate an easement in the streets or other
highways to the public use as such, the title to the land under the street remaining in the owner or his grantees; and where such
conveyances are made with reference to the map or plat, the dedication of the easement for street purposes cannot be
subsequently revoked as against the grantees, and the title of the grantees of subdivisions abutting on such streets in the absence
of a contrary showing, extends to the center of such highway subject to the public easement. And where the highway is lawfully
surrendered the then holder of the title to abutting property and to the center of the street has the property relieved of the public
easement. See Moody v. Palmer, 50 Cal. 31; Trustees M. E. Church, Hoboken, v. Mayor and Council of Hoboken, 33 N.J.L. 13; Winter
v. Payne, 33 Fla. 470, 15 South. Rep. 211; Porter v. Carpenter, 39 Fla. 14, 21 South. Rep. 788; Price v. Stratton, 45 Fla. 535, 33
South. Rep. 644; Florida E.C.R. Co. v. Worley, 49 Fla. 297, 38 South. Rep. 618; Paine v. Consumers' Forwarding & Storage Co., 71
Fed. Rep. 626; Garnett v. Jacksonville, St. A. & H.R.R. Co., 20 Fla. 889; Florida Southern R. Co. v. Brown, 23 Fla. 104, 1 South. Rep.
512; Lovett v. State, 30 Fla. 142, 11 South. Rep. 550; Rawls v. Tallahassee Hotel Co., 43 Fla. 288, 31 South. Rep. 237; Robbins v.
White, 52 Fla. 613, 42 South. Rep. ; Seaboard Air Line Ry. v. Southern Inv. Co., 53 Fla. 832, 44 South. Rep. 351; 5 Cyc. 911; 8 R.C.L.
§ 18.

"Unless the deed manifests an intention on the part of the grantor to limit the boundary line, the line, when the land is bounded by
a non-navigable stream or highway, extends to the center of such stream or highway, if the grantor is the owner of the fee. Hence,
where a deed describes the land conveyed as extending five hundred feet to a street or avenue, and thence at right angles along
the street one hundred and twenty feet, etc., to the place of beginning, the fee of the land to the center of the street is conveyed
subject to the public easement, notwithstanding the line of five hundred feet extends only to the side of the street and not to its
center. When the avenue is no longer used as a street, the land is freed from the easement." 2 Devlin on Deeds (3rd ed.) § 1024.
This rule is one for construing conveyances, and must be applied to carry out, and not to frustrate the intention of the parties.
Where no contrary intent appears, a conveyance to a street carries title to the center of the street, subject to the public easement,
the title to the land under the street passing by construction and not as appurtenant to the abutting land. In this case the plaintiff
and her predecessor in title having conveyed the land abutting on both sides of the street without manifesting a contrary intent,
the title to the land under the street passed from the grantors by virtue of such conveyances of the abutting land; and the plaintiff
has no title to the land under the street. The fact that the space dedicated as a street was not used as such cannot affect the
rights of grantees who purchased with reference to the plat showing the dedication of the space for the purposes of a street. And if
the street easement over the land be lawfully abandoned or surrendered, the owner of the land holds it discharged of the
easement.

In view of the agreed statement of facts, it must be assumed that the conveyances in question were made with reference to the
streets as marked on the plat or map filed among the public records of the county. Though the spaces marked for streets were not
in fact used as streets, yet the conveyances of lots abutting on the spaces marked on the map as streets, by construction of law to
effectuate the manifest intention of the parties, carries title to the middle of the space marked as streets on the map or plat on file,
there being no contrary intent shown.

Judgment affirmed.

TAYLOR, C. J., and SHACKLEFORD and ELLIS, JJ., concur.

COCKRELL, J., absent on account of sickness.

19151210

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E. R. SIMMONS v. STATE FLORIDA (06/25/48)

SUPREME COURT OF FLORIDA

Docket Number available at www.versuslaw.com

Citation Number available at www.versuslaw.com

June 25, 1948

E. R. SIMMONS
v.
STATE OF FLORIDA

An appeal from the Circuit Court for Bay County, Ira A. Hutchison, Judge.

B. L. Solomon, and Robert L. McCrary, Jr., for appellant.

J. Tom Watson, Attorney General, and Reeves Bowen, Assistant Attorney General, for appellee.

En Banc. White, Associate Justice. Thomas, C.j., Terrell, Chapman, Adams, Sebring and Hobson, JJ., concur.

Author: White

This is an appeal from a conviction and sentence for violation of Statute 794.05. At the trial the lower court did not include in its
instructions to the jury the charge with respect to the penalty fixed by law for the offense for which the accused was then on trial
as required by Statute 918.10. The failure to give the charge is the sole ground for reversal urged by the appellant on this appeal.

Statute 918.10, enacted by the Legislature in the year 1945, provides:

"The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include
in said charge the penalty fixed by law for the offense for which the accused is then on trial." It was held by this Court in Eggart v.
State, 40 Fla. 527, 25 So. 144 (1898) that, except in cases involving capital punishment, where a majority of the jury may by a
recommendation to mercy in their verdict commute the penalty of death to life imprisonment, the trial jury has no concern with the
penalty imposed by statute with respect to criminal offenses; and that instructions upon that subject are inappropriate. See also
Osius v. State, 96 Fla. 318, 117 So. 859 (1928). The principle established in those cases still controls as respects the scope of
instructions to be given in a criminal prosecution, unless Section 918.10 has abrogated the effect of the cited decisions and now
makes mandatory the giving of an instruction as to the penalty fixed by law for the offense for which the accused is then on trial.

In the trial of a criminal case in Florida the function of the jury is to determine the issues of fact. The issues of fact embrace the
disputes between the State and the defendant as to what actually existed or occurred at the particular time and place in question.
When the State has carried the burden which rests upon it, the jury must apply the law in charge to the facts thus shown to be true
in order to arrive at a verdict conformable to law. Hence the sole function of the court's charge is properly to inform the jury
concerning the rules of law applicable to the facts in dispute. If the court is required to depart from this course and discuss matters
having no bearing on the true function of the jury, the trial necessarily is disconcerted and impeded.

The preservation of the inherent powers of the three branches of government -- legislative, executive, and judicial -- free from
encroachment or infringement by one upon the other, is essential to the safekeeping of the American system of constitutional rule.

This statement is found: (11 Am. Jur., p. 908)

"Any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional."

This statement is also found: (16 C.J.S., p. 330).

"Although the legislature may regulate the procedure of trial courts with respect to instructions to juries, it cannot abridge the
power of the judge to charge the law, and direct a verdict where the facts are undisputed, nor can it require the court to instruct
the jury without regard to the evidence offered." (Underscoring supplied).

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In State v. Hopper, 71 Mo. 425 (1880), a statute directed the court, in trials upon indictments charging murder in the first degree to
charge upon the law respecting murder in the second degree. Commenting upon the statute, the court said:

"It has always been held to be the duty of the court, in trials for murder, if the evidence would warrant it, to instruct the jury as to
murder in the second degree, and if the above section was meant to require such an instruction to be given, without regard to the
evidence, we do not hesitate to say that it is such an invasion of the province of the judiciary as cannot be tolerated without a
surrender of its independence under the constitution. The legislature can pass any constitutional law it may deem proper, and the
courts are bound to observe it, but it cannot prescribe for them what instructions they shall give in a cause, unless they have
previously embodied into a legislative enactment as the law of the land the substance of such instructions."

It will be observed that statute 918.10, in directing the court to charge upon the penalty, uses the word "must," rather than "may."
If the statute be interpreted as an unqualified mandate that the court in every criminal case include in the charge the penalty which
might be imposed, rather than a mere grant of the privilege to so charge, it becomes an unreasonable infringement of the inherent
power of the court to perform the judicial function because it burdens the court with doing an empty and meaningless act.

In Fagan v. Robbins, 96 Fla. 91, 100, 117 So. 863 (1928), this Court quoted with approval the following enunciation by the Supreme
Court of Pennsylvania:

"The word 'shall' when used by the legislature to prescribe the action of a court is usually a grant of authority, and means 'may' and
even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the
exercise of the power." It is a rule of statutory construction that an interpretation will be adopted which will avoid objectionable
consequences. 50 Am. Jur., p. 372, et seq.

The provision of the statute in question must be interpreted as being merely directory, and not mandatory. It follows that the trial
judge was privileged to ignore the statute in so far as it attempts to require the inclusion in the charge of the penalty for the
offense for which the defendant was on trial.

Affirmed.

Disposition

Affirmed.

19480625

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 UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

JORG BUSSE,

Plaintiff,

vs. Case No. 2007 CV 228 FtM 29 SPC

LEE COUNTY, FLORIDA, and its

BOARD OF COUNTY COMMISSIONERS, and
THE LEE COUNTY PROPERTY APPRAISER, and
STATE OF FLORIDA BOARD OF TRUSTEES
OF THE INTERNAL IMPROVEMENT TRUST FUND,
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION,

Defendants.
________________________________________________/

DEFENDANT LEE COUNTY’S MOTION TO DISMISS FOR FAILURE

TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED; OR
IN THE ALTERNATIVE, A MOTION FOR SUMMARY JUDGMENT; OR
IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT
AND MEMORANDUM OF LAW IN SUPPORT THEREOF

Comes now Defendant, LEE COUNTY, a political subdivision of the State of Florida, by and

through its counsel, pursuant to Fed. R. Civ. P. 12(b)(6), 12(e), and 56(b) and moves the Court to

dismiss the referenced matter and as grounds would state:

1. Plaintiff’s complaint, filed pro se and read most generously, is an apparent attempt

to enhance the value of the Plaintiff’s real property by attaching to it littoral or riparian rights.

(a) As Plaintiff avers at paragraph 3(b), and more fully describes at paragraphs

16 and 66, Plaintiff’s lot abuts not a waterway, but an alleyway or street.

(b) Beyond Plaintiff’s mere assertions of littoral rights, no averment presented,

however poorly pleaded, establishes any factual basis that Plaintiff’s lot abuts a waterway; therefore,
no riparian rights attach per Florida law.

(c) In the absence of any littoral rights, Plaintiff cannot claim any right to a dock

permit denied to him by Lee County as averred in paragraphs 79 and 80.

2. In paragraph 46, Plaintiff admits to his companion law suit now pending in state

court. LEE COUNTY is not yet a party in that suit (Case No. 06CA-3185). Should LEE COUNTY

be joined, the County, in the interest of judicial economy, will remove the case to this Court.

3. In Plaintiff’s state case, his complaints utilize attachments of copies of his lot

description from public records including aerial photos which clearly depict his lot’s location as

platted and as it exists today over 1200 feet from the Gulf of Mexico’s waters. (Those attachments

are attached here as exhibits A and B to the Memorandum of Law).

4. In the alternative, the aforesaid notwithstanding, and reading Plaintiff’s complaint

most generously, the averments remain so vague or ambiguous that defendant, LEE COUNTY,

cannot reasonably frame a responsive pleading. To wit: the majority of the numbered paragraphs

state various legal holdings from state and federal courts, Florida statutory law, administrative rules,

and opinions of the Florida Attorney General (see paragraphs 7, 9, 11, 13, 15). Other averments

simply make statements apparently based on the Plaintiff’s readings of various authorities, legal or

otherwise (see paragraphs 20, 21, etc.). While, for instance, paragraph 10 appears to state a cause

of action, no facts are presented to support the allegation. In sum, Plaintiff’s complaint is neither

short or plain or sufficient enough to allow a responsive pleading.

5. In the alternative, pursuant to Fed. R. Civ. P. 56(b), since LEE COUNTY is

submitting matters outside the pleadings, for example exhibits A and B, the Court shall treat the

matter as a motion for summary judgment. Vanero v. City of Tampa, 830 F. Supp. 1457, 1458

2
(1993)(J. Kovachevich).

6. Plaintiff has apparently named and served both “Lee County” and “its Board of

County Commissioners” as defendants. By statute, the proper party in interest is simply “Lee

County.” Therefore, Defendant moves to dismiss “its Board of County Commissioners.”

WHEREFORE, LEE COUNTY moves this Court to dismiss the complaint or, in the

alternative, order the Plaintiff to file a petition for relief that, even minimally, meets the Rules of

pleading; or grant the Defendant, LEE COUNTY, summary judgment.

MEMORANDUM IN SUPPORT

A motion made under Federal Rule 12(b)(6) tests the sufficiency of the complaint and cannot

be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts” entitling him

to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1951).

Plaintiff claims riparian rights. As the Florida Supreme Court articulated in 1895, “in a suit

to enjoin trespass upon riparian rights, the allegations of the bill must be clear and precise as to the

title.” Axline v. Shaw, 35 Fla. 305, 309, 17 So. 411, 412 (1895). The Axline court then examines

the claimant’s deed as to the boundaries of the subject real property: “In order for one to have

riparian rights, there must be an actual water boundary of the land in connection with which such

rights are claimed. Id at 310, 17 So. at 413. The Axline court concludes: “Such a boundary is land,

and not water, and does not confer riparian rights under our statute.” Id. at 305, 17 So. at 412.

Since Axline, the statutory definition of Florida sovereignty lands now extends to the ordinary

high water mark. §253.141(1) Fla. Stat. (2006). Plaintiff’s deed (attached as exhibit “A”) simply

conveys lot 15A. The lot is clearly outlined on the plat map as a 50' x 130' lot bounded by a street

right-of-way of 60 feet (attached exhibit “B”). Lot 15A is not bounded by water of any sort. Lot

3
15A does not extend to the “shore” as in Axline, or even the ordinary high water mark as depicted

on the plat. Florida law states: “The land to which the owner holds title must extend to the ordinary

high water mark of the navigable water in order that rights may attach. §253.141(1) Fla. Stat.

(2006).

Since there are no riparian rights appurtenant to the Plaintiff’s lot, the complaint is fatally

deficient and must be dismissed.

Respectfully submitted,

/s/ Jack N. Peterson

JACK N. PETERSON
Assistant County Attorney
Florida Bar No. 0832774

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true and correct copy of Lee County’s Motion to Dismiss has
been furnished by U.S. Mail to: Jorg Busse, Plaintiff, Post Office Box 1126, Naples, FL 34106-1126;
Reagan Kathleen Roane, Assistant General Counsel, 3900 Commonwealth Boulevard, Number 35,
Tallahassee, FL 32399-3000; and Kenneth W. Wilkinson, Lee County Property Appraiser, 2480
Thompson Street, Fort Myers, FL 33901, on this 1st day of May, 2007.

By: /s/ Jack N. Peterson

Jack N. Peterson
Assistant County Attorney
Florida Bar No. 0832774
DAVID M. OWEN
LEE COUNTY ATTORNEY’S OFFICE
2115 Second Street
Post Office Box 398
Fort Myers, Florida 33902-0398
Telephone No. (239) 533-2236
Facsimile Phone No. (239) 485-2118
PETERSJN@leegov.com