Sailfish Club of Florida, Inc. v. Department of Natural Resources

8 Fla. Supp. 2d 198
CourtState of Florida Division of Administrative Hearings
DecidedSeptember 18, 1984
DocketCase No. 84-0862R
StatusPublished

This text of 8 Fla. Supp. 2d 198 (Sailfish Club of Florida, Inc. v. Department of Natural Resources) is published on Counsel Stack Legal Research, covering State of Florida Division of Administrative Hearings primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sailfish Club of Florida, Inc. v. Department of Natural Resources, 8 Fla. Supp. 2d 198 (Fla. Super. Ct. 1984).

Opinion

OPINION

DIANE D. TREMOR, Hearing Officer.

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 9, 1984, in Tallahassee, Florida. Later exhibits and testimony by deposition were filed on June 4, 1984. The issues for determination in this proceeding are whether respondent’s existing Rule 16Q-21.05(l)(b)4, Florida Administrative Code, and/or proposed [199]*199Rule 16Q-21.il, Florida Administrative Weekly, Vol. 10, No. 8 (February 24, 2984) constitute invalid exercises of delegated legislative authority.

INTRODUCTION

In support of its position of the invalidity of the challenged rules, petitioner presented he testimony of Ted Forsgren, Chief of the Bureau of State Lands Management, Department of Natural Resources. By way of depositions filed subsequent to the hearing, petitioner also presented the testimony of Donald H. Masterson, General Manager of the Sailfish Club of Florida, Inc.; Robert J. Calloway, offered and accepted as an expert in the field of real estate appraisal; and Joseph Walter Milon, offered and accepted as an expert in the field of economics, with special expertise in the financial structure and performance of Florida marinas. Petitioner’s Exhibits' 1 through 5 and 7 through 15 were received into evidence. The respondent’s case consisted of the cross-examination of petitioner’s witnesses.

The prehearing stipulation and the challenged proposed rule, as it appeared in Volume 10, Number 8 of the Florida Administrative Weekly (February 24, 1984), were received into evidence as Hearing Officer’s Exhibits 1 and 2.

Subsequent to the close of the hearing, counsel for the parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties’ proposed findings of fact are not incorporated in this Final Order, they are rejected as being either unsupported by competent substantial evidence, irrelevant or immaterial to the issues in dispute or as constituting legal conclusions as opposed to factual findings.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced in this proceeding, the following relevant facts are found:

(1) Petitioner Sailfish Club of Florida, Inc. is a nonprofit Florida corporation which operates a 550-member private club in Palm Beach County, Florida. Its facilities include a swimming pool, large dining room, cocktail lounge, private dining rooms, card rooms and a marina with three docks and 62 slips. Petitioner’s annual membership dues are $925 per member. The marina docks are constructed over 94,815 square feet of submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund. The wet slip space comprises 2,531 linear feet. Marina slips are available to members only and are rented at $39.60 per linear foot per year.

[200]*200(2) Prior to March 10, 1970, it was the policy of the Board of Trustees to permit the use of sovereignty submerged lands without charging annual fees. At present, all docks, piers and other structures on sovereignty lands in existence prior to March 10, 1970, are “grandfathered” and are not subject to the current lease requirements until January 1, 1998.

(3) On March 10, 1970, the Board of Trustees adopted a new policy providing for the licensing of private interests desiring to occupy sovereignty lands in conjunction with the operation of marinas, charter boat docks and other commercial mooring facilities. The licenses were to be issued upon payment of no less than two cents per square foot annually for sovereignty land severed from public use, and each license was to be renewable annually after receipt of the appropriate fee.

(4) On August 25, 1970, petitioner and the Board of Trustees entered into a license agreement whereby petitioner was permitted to construct, install and operate a marina and commercial dock facility upon sovereignty lands. Petitioner agreed to pay the Board two cents per square foot of the soverignty lands occupied. Section 5 of the license agreement provided as follows:

“This License shall be renewable annually if the Licensee has complied with all the terms and conditions of this License, including payment of the annual license fee. The license fee for renewal shall be no less than the original fee. The Board shall not increase the license fee by more than 10% in any one renewal term.”

Section 6 allows the licensee a 90-day grace period after expiration to renew the license. Most, if not all, license agreements entered into between 1970 and 1975 contain this language. In reliance upon that license agreement, petitioner expended some $205,000.00 for construction of docks and other facilities solely related to the marina function of the Club.

(5) Each year thereafter, beginning in August of 1971, petitioner renewed its license for a period of one year by tendering the license fee of two cents per square foot for the 94,815 square feet of submerged land occupied by the marina. From 1970 until 1980, petitioner paid annual license fees of $1,896.00. Beginning in 1980, the Department started increasing its annual marina license fee by ten percent, as permitted under the license agreement, and petitioner paid the increased annual fee.

[201]*201(6) Around 1975, the Board of Trustees and DNR discontinued issuing licenses and shifted to leases for the use of sovereignty submerged lands. The form sovereignty submerged land lease agreement provided that “renewal of this lease is at the sole option of the Board of Trustees or its legally designated agent.” Nevertheless, the Department continued to renew existing licenses upon the tender of the annual fees.

(7) By letter dated June 30, 1982, the DNR informed petitioner that its marina license fee would increase each year at the rate of ten percent, and suggested that petitioner may wish to convert its license into a five-year lease. Petitioner declined the suggestion and remitted its annual fee for its license. In August of 1983, the petitioner paid to the DNR fees in the amount of $2,776.37 for its 1983-84 annual marina license.

(8) On August 1, 1983, the DNR adopted amendments to Chapter 16Q-21, Florida Administrative Code, which governs sovereignty submerged lands management. The amendment included in the list of activities for which a lease would be required

“Existing licenses upon the date of expiration or renewal.” Rule 16Q-21.05(l)(b)4, Florida Administrative Code.

Marina leases were to be handled under the standard lease provisions, which include a term of up to 25 years “renewable at the option of the Board.” Rule 16Q-21.08. The annual standard lease fee, as amended in August 1983, was to be computed at a statewide base rate of $0.065 per square foot, with an additional 20% of the lease fee to be charged for the first annual fee, and the per square foot base rate to be revised each year. Marinas open to the public on a first come, first serve basis were permitted a 30% discount per square foot per year. Rule 16Q-21.11(1), Florida Administrative Code (1983 Annual Supplement).

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Bluebook (online)
8 Fla. Supp. 2d 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sailfish-club-of-florida-inc-v-department-of-natural-resources-fladivadminhrg-1984.