STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WASIM NIAZI,

vs.

Petitioner,

Case No. 18-2352

DEPARTMENT OF TRANSPORTATION,

Respondents.

/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2018),1/ on August 21, 2018, by video teleconference with sites in Tallahassee and Daytona Beach, Florida.

APPEARANCES

For Petitioner: Daniel P. Faherty, Esquire

Telfer, Faherty & Anderson, P.L.L.C. Suite 201

815 South Washington Avenue Titusville, Florida 32780

For Respondent: Susan Schwartz, Esquire

Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The issue in this matter is whether section 330.30(3)(f), Florida Statutes, exempts Petitioner from obtaining the approval of the Department of Transportation prior to using a private heliport site adjacent to his property.

PRELIMINARY STATEMENT

Petitioner, Wasim Niazi, asserts that he is exempt from the requirement under section 330.30 to obtain approval from the Department of Transportation (the “Department”) prior to using a private heliport he built next to his property.

Through a Letter of Prohibition, dated April 6, 2018, the Department notified Petitioner that he was required to obtain an airport site approval order and airport registration before using his heliport. The Letter of Prohibition further instructed Petitioner that the exemption from approval and registration set forth in section 330.30(3)(f) was not applicable to his heliport.

On April 20, 2018, Petitioner timely submitted a petition for a chapter 120 hearing to the Department. On May 10, 2018, the Department forwarded the matter to the Division of Administrative Hearings (“DOAH”) for assignment of an Administrative Law Judge.

The final hearing was held on August 21, 2018.2/ At the final hearing, Petitioner testified on his own behalf.

Petitioner also presented the testimony of Denny Long. Petitioner’s Exhibits 1, 2, 4 through 11, and 13 through 17 were

admitted into evidence. The Department presented the testimony of Alice Lammert, Dave Roberts, and George Ritchie. The Department’s Exhibits 1 through 12 and 14 were admitted into evidence.

A one-volume Transcript of the final hearing was filed on September 12, 2018. At the close of the hearing, the parties were advised of a ten-day timeframe after receipt of the hearing transcript at DOAH to file post-hearing submittals. Both parties filed Proposed Recommended Orders, which were duly considered in preparing this Recommended Order.

FINDINGS OF FACT

1. The Department is authorized to administer and enforce the rules and requirements for airport sites, including initial airport site approval, registration of private airports, and licensing of public use airports. See § 330.29, Fla. Stat.

2. Petitioner owns a home next to Honeymoon Lake in Brevard County, Florida.

3. Petitioner, an aviation enthusiast, also owns several helicopters. Petitioner currently parks his helicopters at a nearby airport. Petitioner desires to takeoff and land his helicopters at his home.

4. Petitioner built a dock on Honeymoon Lake next to his property. Over the dock, Petitioner constructed a wooden platform to use as his heliport. Petitioner built the platform directly

   
   

   
   

   into the submerged lands beneath Honeymoon Lake. The platform is approximately 36 feet long by 32 feet wide. The platform rests on wooden pilings and is raised to about 15 feet above Honeymoon Lake. The platform is connected to the shore by a wooden foot bridge.

5. Petitioner harbors two boats at the dock beneath the platform.

6. Petitioner constructed the heliport for his private, recreational use only. Petitioner wants to use his heliport without applying for approval from the Department.

7. Honeymoon Lake is a private (not State) body of water whose history goes back to a deed issued in the late 18th century. In 1878, President Rutherford B. Hayes, on behalf of the United States government, deeded Honeymoon Lake to the original developer of the area.

8. Honeymoon Lake is approximately 300 feet wide at Petitioner’s property line. The area of the lake where Petitioner’s heliport is located is owned by the Stillwaters Homeowners Association and used as a recreation area. On September 5, 2017, after Petitioner constructed the platform, the Stillwaters Homeowners Association Board of Directors approved Petitioner’s heliport by resolution.

9. Prior to this administrative action, Petitioner applied to the Federal Aviation Administration (“FAA”) for airspace

   
   

   
   

   approval to operate his heliport on Honeymoon Lake. On April 13, 2017, the FAA provided Petitioner a favorable Heliport Airspace Analysis Determination in which the FAA did not object to Petitioner’s use of his helicopters in the airspace over Honeymoon Lake. The FAA’s determination included an approved Approach/Departure Path Layout and Agreement with the 45th Space Wing, which operates out of nearby Patrick Air Force Base.

10. Petitioner also represents that the heliport platform does not violate the Brevard County Building Code. In support of this assertion, Petitioner introduced the testimony of Brevard County Code Enforcement Officer Denny Long. In August 2017, after receiving a complaint that Petitioner’s heliport might have been built in violation of Brevard County ordinances, Mr. Long inspected Petitioner’s dock structure. Upon finding that Petitioner had already constructed his platform, Mr. Long could not identify a code provision that he needed to enforce. Therefore, he closed his investigation.

11. Petitioner contends that the Honeymoon Lake area is not taxed by Brevard County. Neither is Brevard County responsible for any improvements thereon.3/

12. Because his heliport is situated over water and not land, as well as the fact that he will only use the heliport for occasional, private use, Petitioner believes that he is entitled to the exemption under section 330.30(3)(f) from obtaining the

    
    

    
    

    Department’s approval prior to landing his helicopters at his heliport.

13. Section 330.30 states, in pertinent part:

    
    

    1. SITE APPROVALS; REQUIREMENTS, EFFECTIVE PERIOD, REVOCATION.—

       
       

       (a) Except as provided in subsection (3), the owner or lessee of any proposed airport shall, prior to . . . construction or establishment of the proposed airport, obtain approval of the airport site from the department.

       
       

       * * *

       
       

       (3) EXEMPTIONS.—The provisions of this section do not apply to:

       
       

       * * *

       
       

       (f) Any body of water used for the takeoff and landing of aircraft, including any land, building, structure, or any other contrivance that facilitates private use or intended private use.

       
       

14. Petitioner asserts that the exemption described in section 330.30(3)(f) extends to a “building, structure or any other contrivance” that is constructed on, or over, a body of water. Therefore, since his landing site is situated over water, Petitioner argues that his heliport should be considered a “structure . . . that facilitates private use” of a “body of water for the takeoff and landing of aircraft” which qualifies him for an exemption from Department approval.

15. Although Petitioner does not believe that he needed to apply to the Department for approval of his proposed landing site,

    
    

    
    

    he did so at the FAA’s suggestion. Around April 2017, Petitioner contacted the Department inquiring about the process to obtain an airport license or registration for his heliport.

16. On September 25, 2017, however, the Department denied Petitioner’s application as incomplete. Pursuant to section 330.30(1)(a), the Department instructed Petitioner to produce written assurances from the local government zoning authority (Brevard County) that the proposed heliport was a compatible land use for the location and complied with local zoning requirements. In response, instead of supplementing his application, Petitioner asserted to the Department that his heliport was exempt from registration under section 330.30(3)(f) because it was located in a private body of water.

17. On April 6, 2018, the Department issued Petitioner a formal “Letter of Prohibition.” The Letter of Prohibition notified Petitioner that he was not authorized to operate his helicopter from his dock/heliport without first registering his heliport with the Department and obtaining an Airport Site Approval Order. The Letter of Prohibition further stated that Petitioner’s heliport did not meet the exception from site approval and registration requirements in section 330.30(3)(f). The Department expressed that the exception only applied to “a body of water used for the takeoff and landing of aircraft.” The

    
    

    
    

    exception did not apply to the platform Petitioner desired to use as his landing site.

18. Petitioner challenges the Letter of Prohibition in this administrative hearing.

19. The Department, through Alice Lammert and Dave Roberts, asserts that Petitioner must register his private-use heliport before he may use it to takeoff or land his helicopters.

    Ms. Lammert and Mr. Roberts testified that the Department has consistently interpreted section 330.30(3)(f) to pertain to actual bodies of water, e.g., waters used by seaplanes or other floatable aircraft. Both Ms. Lammert and Mr. Roberts commented that Petitioner is not seeking to takeoff or land his helicopters on Honeymoon Lake. Petitioner intends to use a platform, situated 15 feet above Honeymoon Lake, on which to land his helicopters. Ms. Lammert and Mr. Roberts expressed that Petitioner’s construction of his heliport over water does not change the fact that his heliport is a fixed wooden structure and not a “body of water.” Consequently, Petitioner must obtain Department approval prior to using the platform for his helicopters.

20. Ms. Lammert and Mr. Roberts added that if Petitioner’s helicopters were equipped with pontoons and landed directly on the surface of Honeymoon Lake, his “landing site” would qualify for the exemption set forth in section 330.30(3)(f).

    
    

    
    

21. Ms. Lammert and Mr. Roberts further explained that the Department is responsible for ensuring that aircraft operating in Florida takeoff and land in safe, controlled areas. Through section 330.30, the Department is tasked to inspect all potential airport sites to make sure that the landing zones do not pose a danger to any aircraft (or helicopter) that might use them. Safety is the Department’s primary focus when approving private airport/heliport registrations. For example, as Ms. Lammert explained, the Department would inspect Petitioner’s heliport to ensure that the platform is sturdy enough and wide enough to bear the weight of Petitioner’s helicopters. The Department might also determine whether the platform should be equipped with a safety net.

22. Regarding Petitioner’s argument that the Department should consider his heliport a “structure . . . that facilitates private use” of a body of water, Mr. Roberts understands the exemption under section 330.30(3)(f) to include docks that are used for persons disembarking from a seaplane or other floatable aircraft. The exemption, however, does not apply if the dock, itself, serves as the landing site.

23. Regarding Petitioner’s reference to the FAA analysis determination, Mr. Roberts explained that while the FAA has authority to approve the use of the airspace over Honeymoon Lake,

    
    

    
    

    the authority to approve the landing site remains with the Department.

24. Based on the evidence and testimony presented at the final hearing, Petitioner did not prove, by a preponderance of the evidence, that his heliport qualifies for an exemption under section 330.30(3)(f). Accordingly, prior to his use of his heliport to takeoff or land his helicopters, he must apply for site approval from the Department.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See

    §§ 120.569 and 120.57(1), Fla. Stats.

    
    

26. The Department is authorized to regulate airports to include initial airport site approval, registration of private airports, and the licensing of public use airports. See

    §§ 330.29 and 330.30, Fla. Stat; and Fla. Admin. Code R. 14- 60.005.

27. Petitioner initiated this action seeking an exemption from Department approval under section 330.30(3)(f) to operate his heliport to takeoff and land his helicopters. As the party asserting the affirmative in this administrative proceeding, the

    burden of proof is on Petitioner. Dep’t of Transp. v. J.W.C. Co.,

    
    

    396 So. 2d 778 (Fla. 1st DCA 1981); see also Dep’t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670

    
    

    
    

    So. 2d 932, 935 (Fla. 1996)(“The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.”).

28. The preponderance of the evidence standard is applicable to this case. See § 120.57(1)(j), Fla. Stat.; Dep’t

    of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). Preponderance of the evidence

    is defined as “the greater weight of the evidence,” or evidence that “more likely than not” tends to prove a certain proposition. S. Fla. Water Mgmt. v. RLI Live Oak, LLC, 139 So. 3d 869, 872

    (Fla. 2014).

    
    

29. The issue to determine in this matter is whether Petitioner is required to obtain the Department’s approval prior to operating his heliport, or does Petitioner qualify for an exemption from Department approval under section 330.30(3)(f).

30. Section 330.30 states, in pertinent part:

    
    

    1. SITE APPROVALS; REQUIREMENTS, EFFECTIVE PERIOD, REVOCATION.—

       
       

       1. Except as provided in subsection (3), the owner or lessee of any proposed airport shall, prior to . . . construction or establishment of the proposed airport, obtain approval of the airport site from the department.

          
          

          * * *

          
          

          (3) EXEMPTIONS.—The provisions of this section do not apply to:

          
          

          * * *

          
          

          
          

          (f) Any body of water used for the takeoff and landing of aircraft, including any land, building, structure, or any other contrivance that facilitates private use or intended private use.

          
          

31. Petitioner argues that, under the plain meaning of the section 330.30(3)(f), his heliport should be considered a “structure . . . that facilitates” the use of a private body of water to takeoff and land his helicopters. Because his heliport sits over Honeymoon Lake, not land, Petitioner contends that he will use a “body of water” to operate his heliport. “Facilitates” means to make an action easier, or to help bring about.4/ Petitioner asserts that the platform he built over his dock makes it easier (and safer) to land and takeoff from Honeymoon Lake. Therefore, he qualifies for the exemption under section 330.30(3)(f).

32. Conversely, the Department maintains that the primary goal of section 330.30 is to ensure that airport sites do not expose the aircraft using them to dangerous conditions or environments. The reason a “body of water” is exempt from Department approval is because “water” is not a physical landing site that the Department can inspect.

33. Regarding Petitioner’s proposed heliport, the Department asserts that Petitioner seeks to takeoff and land on a fixed structure--not Honeymoon Lake itself. Consequently, the exception is not applicable. In other words, because Petitioner intends to

    
    

    
    

    land on a wooden platform, and not on the waters of Honeymoon Lake, he must obtain the Department’s approval of his landing site prior to using his platform as a heliport.

34. The interpretation of section 330.30(3)(f) begins with the question of whether the language is clear and unambiguous.5/ “When construing a statute, the court must first look to the plain meaning of the words used by the Legislature.” Brandy’s

    Prods. v. Dep’t of Bus. & Prof’l Reg., Div. of Alcoholic

    
    

    Beverages & Tobacco, 188 So. 3d 130 (Fla. 1st DCA 2016)(citing Verizon Bus. Purchasing, LLC v. Dep’t of Rev., 164 So. 3d 806,

    809 (Fla. 1st DCA 2015)). “When a statute is clear, a court may not look behind the statute’s plain language or resort to rules of statutory construction to determine legislative intent.” Dep’t of High. Saf. & Motor Veh. v. Peacock, 185 So. 3d 632, 633

    (Fla. 1st DCA 2016). See also Holly v. Auld, 450 So. 2d 217, 219

    
    

    (Fla. 1984)(“[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.”). The undersigned perceives the language and meaning of section 330.30 to be clear and unambiguous.

35. Chapter 330 does not define the word “water” as used in the phrase “body of water” in section 330.30(3)(f). Where the Legislature has not specifically defined the words used in a

    
    

    
    

    statute, “the language should be given its plain and ordinary meaning.” Greenfield v. Daniels, 51 So. 3d 421, 426 (Fla.

    2010)(citing Sch. Bd. of Palm Beach Cnty. v. Survivors Charter

    
    

    Schs., Inc., 3 So. 3d 1220, 1233 (Fla. 2009)(quoting Fla. Birth- Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin.

    Hrgs., 686 So. 2d 1349, 1354 (Fla. 1997)).

    
    

36. The word “water” has a plain and ordinary meaning. “Water” is defined as “the liquid that descends from the clouds as rain, forms streams, lakes, and seas.” “Water” is also defined as “a particular quantity or body of water.” Merriam-

    Webster Dictionary, at http://www.merriam-webster.com (accessed October 10, 2018). See Seagrave v. State, 802 So. 2d 281, 286

    (Fla. 2001)(“When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary.”); see also Raymond James Fin. Servs. v. Phillips,

    110 So. 3d 908, 910 (Fla. 2d DCA 2011)(“It is appropriate to refer to dictionary definitions when construing statutes or rules.”).

37. The undersigned concludes that section 330.30 means what its plain and unambiguous text clearly conveys. A wooden platform, even if it is located on, or over, water, is not a “body of water” as the Legislature used that term in section 330.30(3)(f). Therefore, because Petitioner intends to land his helicopters on the platform, and not on Honeymoon Lake, itself,

    
    

    
    

    Petitioner’s heliport should not be treated as a “body of water.” Neither is it a “structure . . . that facilitates private use” of Honeymoon Lake. This is because Petitioner intends to takeoff and land on the platform, not on the waters of the lake.

    Accordingly, Petitioner does not qualify for the exemption under section 330.30(3)(f). Prior to using his heliport, he must obtain the Department’s approval pursuant to the provisions of section 330.30.

38. The undersigned also notes that, at the final hearing, the Department offered a persuasive and reasonable interpretation of section 330.30(3)(f).6/ The Department expressed that the exemption from airport site approval applies only to landing sites used by seaplanes or helicopters outfitted with pontoons that takeoff or land directly on the water. Similarly, a “structure . . . that facilitates private use” of an airport site on a “body of water” would include edifices used by the passengers or pilots to embark and disembark from the aircraft, such as attendant docks, ramps, or buildings. The “structures” the Legislature considered in section 330.30(3)(f) do not include docks when the dock itself serves as the landing site (even if the dock is situated over water).

39. In sum, based on the competent substantial evidence in the record, Petitioner did not meet his burden of proving that his platform is a “structure . . . that facilitates private use”

of the body of water that is Honeymoon Lake. Accordingly, Petitioner is not exempt under section 330.30(3)(f) from obtaining Department approval prior to the takeoff or landing of his helicopters on the dock structure he intends to use as his heliport.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner’s request for an exemption from Department approval under section 330.30(3)(f) prior to the use of his wooden platform as a heliport.

DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2018.

ENDNOTES

1/ Unless otherwise noted, all statutory references are to the 2018 codification of the Florida Statutes.

2/ The final hearing was originally scheduled for July 20, 2018. Following the transfer of the case on July 9, 2018, the final hearing was reset for August 9, 2018, to accommodate the undersigned’s hearing calendar. Thereafter, at the parties’ request during a case status conference, the final hearing was moved to August 21, 2018, which allowed the parties time to narrow the focus of the issues to be heard at the final hearing.

3/ Petitioner represents that the Florida Department of Environmental Protection has disclosed that it has no jurisdiction over the heliport because Honeymoon Lake is not considered to be sovereign submerged state land.

4/ See Merriam-Webster Dictionary, at http://www.merriam- webster.com (accessed October 10, 2018).

5/ Legislative intent is the polestar that guides a court’s statutory construction analysis. “To discern legislative intent, a court must look first and foremost at the actual language used in the statute.” Larimore v. State, 2 So. 3d 101, 106 (Fla.

2008). “The Legislature must be understood to mean what it has plainly expressed and this excludes construction. The Legislative intent being plainly expressed, so that the act read by itself or in connection with other statutes pertaining to the same subject is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms.” DMB Inv. Tr. v. Islamorada, 225 So. 3d 312, 317 (Fla. 3d DCA 2017)(quoting Van Pelt v. Hilliard, 78 So. 693, 694- 95 (Fla. 1918)).

6/ Florida courts, as well as DOAH, defer to agency interpretation of their own statutes. See Paloumbis v. City of Miami Beach, 840 So. 2d 297, 298-99 (Fla. 3d DCA 2003)(explaining that “administrative interpretation is entitled to judicial deference as long as it is within the range of possible permissible interpretations”); Bd. of Trs. of the Int. Imp. Trust Fund v. Levy, 656 So. 2d 1359, 1363 (Fla. 1st DCA 1995)(“If an agency’s interpretation of its governing statutes is one of several permissible interpretations, it must be upheld, despite the existence of reasonable alternatives.”); and McQuade v. Fla. Dep’t of Corr., 51 So. 3d 489, 492 (Fla. 1st DCA 2010)(“When an agency interprets [a statute within its substantive jurisdiction], this Court will not reverse based on that interpretation unless it is clearly erroneous.”).

COPIES FURNISHED:

Daniel P. Faherty, Esquire

Telfer, Faherty & Anderson, P.L.L.C. Suite 201

815 South Washington Avenue Titusville, Florida 32780 (eServed)

Susan Schwartz, Esquire Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458 (eServed)

Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450 (eServed)

Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450 (eServed)

Michael J. Dew, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 57

Tallahassee, Florida 32399-0450 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 18-002352

Orders for Case No: 18-002352