STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF NATURAL RESOURCES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2974

)

RON HARROD, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on May 6, 1987, a formal hearing was held in this case. The authority for the conduct of the hearing was Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer. This Recommended Order is being entered following the receipt and review of the transcript of proceedings which was filed with the Division of Administrative Hearings on July 10, 1987. In addition, the parties have submitted Proposed Recommended Orders which have been reviewed. In some instances the facts suggested by the parties have been utilized in the preparation of the Recommended Order. Otherwise, those facts are distinguished from facts found in the Recommended Order through an Appendix.

APPEARANCES

For Petitioner: James V. Antista, Esquire

Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Respondent: Ron Harrod, Pro Se

Post Office Box 1662 Bushnell, Florida 33513

WITNESSES AND EXHIBITS

Petitioner presented the testimony of Gordon Roberts, Louis Feulner, Robert Verlato, Douglas A. Thompson, Kenneth Campbell, Catherine M. Gilbert, Louis Neuman and Linda Sanford. Respondent testified and presented the testimony of Jerry Lovett. Petitioner offered 14 exhibits which were admitted into evidence. Within that group of exhibits Petitioner's exhibits 6 and 14 are synonymous.

Respondent offered 3 exhibits which were admitted.

PROCEDURAL MATTERS

Following the conclusion of the final hearing, Respondent employed counsel and moved to reopen the hearing. That motion was denied by order of July 15, 1987.

ISSUES

The issues presented concern the attempt on the part of the State of Florida, Department of Natural Resources (DNR) to impose a fine against Ron Harrod (Respondent) for willfully or knowingly damaging or removing products from sovereign lands without the consent of DNR or the State of Florida, Board of Trustees of Internal Improvement Trust Fund. The products spoken to is timber allegedly cut and removed from state-owned lands on November 20, 1985, and April 1, 1986. This purported conduct on the part of the Respondent is said to have violated Section 253.04(2), Florida Statutes (1985), and Rule 16Q- 14.03(2) and (6), Florida Administrative Code.

FINDINGS OF FACT

1. On September 1, 1985, Blanche Farrow made an agreement with the Respondent which allowed the Respondent as the owner of "Rons Cypress" to cut all the timber on her property. Rons Cypress is a business for cutting cypress slabs. This property is described in the agreement as being located on Highway

   48 approximately 1 mile east of Floral City, on both the north and south sides of the road. Further it was stated that the timber contemplated in this arrangement could be found along Daniels Drive. A copy of the statement of agreement between Farrow and the Respondent may be found as Respondent's Exhibit

   1 admitted into evidence.

   
   

2. The exact nature of the Farrow property which is the subject of the agreement with the Respondent may be found in a copy of the Warranty Deed pertaining to this property, which has been admitted as DNR Exhibit 4. This property is located in Citrus County, Florida. The extent of the property over which Blanche Farrow and her husband, Chester B. Farrow, hold ownership does not extend into Lake Tsala Apopka, Lake Bradley and Little Lake, lakes adjacent to their property. These lakes constitute part of an historically meandered lake system and are subject to the sovereign rights of the State of Florida. In effect, the State of Florida owns those water bodies. The limitations of the boundaries of the Farrow property are made clear in the Warranty Deed in which certain language describes the boundaries of the property owned by the Farrows as being ". . . to the waters of Lake Tsala Apopka; thence Southerly along the water's edge of said Lake Tsala Apopka . . ." and ". . . to the water's edge of Lake Bradley . . ." Therefore, notwithstanding Respondent's protestations to the contrary and any statement made by Chester B. or Blanche Farrow, the legal description of the property does not convey title to those individuals for the several lakes described, nor create any leasehold interest on the part of the Farrows to the lakes.

   
   

3. In pursuit of the agreement with the Farrows, Respondent made arrangements with Jerry Lovett, who is in the lumber business, to cut trees, principally cypress trees. Through this agreement, Lovett would write checks to Blanche Farrow which would be given to her by the Respondent. The Respondent in turn would be able to take the stumps left over from the cutting of cypress trees and use them for slabs in his business of selling cypress tree products. Respondent was to pay Ms. Farrow for the stumps from which he cut slabs. Respondent also took cypress knees in this area for use in his business. Respondent's Composite Exhibit 3 describes payment made by Jerry Lovett to Blanche Farrow for trees removed. On October 14, 1985, $600.00 was paid for cypress trees. On October 28, 1985, $1,275.72 was paid, of which 52.31 tons of cypress at $6.00 a ton was included in that purchase. On November 4, 1985,

   $551.28 was paid for cypress trees. On November 15, 1985, he paid $131.92 for removal of cypress trees. In this endeavor, Lovett in the person of his work

   crew had cut and removed cypress trees which belonged to the State of Florida. Respondent cut and removed slabs from the stumps left following Lovett's lumbering operation and took cypress knees as well belonging to the state.

   Respondent's involvement with the stumps and knees was through activities of a crew working for the Respondent. Neither the Farrows, Lovett nor Respondent had permission to take cypress products from this land belonging to the State of Florida.

   
   

4. Lovett, in his activities, had operated under the misapprehension that the Farrows owned the disputed cypress trees that were cut from lands of the sovereign. He was led to believe in his discussions with Blanche Farrow that Respondent would point out the places where the cut could be made. Lovett also understood from his conversation with Ms. Farrow that certain monuments identifying the extent of her ownership could be found on the side of the road near Lakes Tsala Apopka and Bradley, described as cement corners. Lovett never located those monuments in that as he understood the outer bounds of the Farrow ownership, as Ms. Farrow described them, he would not approach those outer limits in his activities. Respondent likewise believed that the Farrows owned the property where the cypress cutting was being done. Nevertheless, Lovett cut and removed cypress trees in Lake Tsala Apopka, Lake Bradley and Little Lake and Respondent took stumps and knees from those lakes owned by the sovereign.

   
   

5. Lovett sold the cypress logs which he removed from the area in dispute, to include cypress logs belonging to the State of Florida.

   
   

6. Lovett removed less than 300 trees from the site and left some cypress logs at the site. Lovett through his crew was operating at the site of the dispute sometime approximately a week before October 14, 1985, through November 15, 1985. Lovett ceased his activities in the cutting of cypress when instructed to do so by the Respondent who mentioned something to the effect that the local zoning board said that this cutting had to cease.

   
   

7. In the course of his operations in the three lakes, Respondent took 693 knees and between 800 and 1,200 cypress slabs.

   
   

8. DNR became aware of the activities of Lovett and the Respondent based upon an investigation that was prompted by observations which Linda Sanford made. Linda Sanford is a zoning inspector for Citrus County. She also lives adjacent to Lake Bradley. As she describes it in her testimony, she observed work crews in the water cutting cypress "off and on." Among the people that she identified as being a member of the work crew was a James Gunn, who is an employee of the Respondent. The first time she saw the Respondent's crew was on November 13, 1985, around Daniels Road and Highway 48. Three persons were in the water and a chain saw was being operated. On November 16, 1985, while at home, Ms. Sanford received complaints from some neighbors about saws being operated and observed Respondent's crew again. One other time on a date that Ms. Sanford does not remember, which would have been following the first two occasions of her observations, Ms. Sanford asked the work crew if they had permits for the activities. Ms. Sanford never saw the Respondent's work crew remove any of the cypress materials.

   
   

9. On November 20, 1985, Lieutenant Louis Feulner, then a Sergeant for the Florida Marine Patrol, went to the area where cypress trees had been cut by Lovett and cuttings from stumps and cypress knees were being taken by Respondent's work crew. This area was described by Feulner as the Lake Tsala Apopka chain. A copy of his report of the incident may be found as DNR Exhibit

   7 admitted into evidence. Feulner was sent to investigate by his superior,

   Major Brown of the Florida Marine Patrol. Feulner arrived at the scene of the cutting activity around 3:30 in the afternoon and saw three subjects in the water. Those persons were James Gunn and Respondent's two sons. Feulner saw that cypress trees had been cut down on the site and some were located in the water. He observed stumps in the water as well. These observations were made of cypress products in knee- deep water. Feulner saw a chain saw being operated by the crew. The cutting that was being done was a slab from a stump. He did not see trees being removed from the site of the cutting. Upon inquiry, Gunn told Feulner that he worked for the Respondent and that the Respondent had gotten permission to cut the cypress trees from Ms. Farrow. Feulner advised Gunn that the activities involved in the cutting violated state law. In fact those activities did involve cutting of property belonging to the State.

   
   

10. Major Brown had dispatched Lieutenant Fuelner to the questioned site on November 20, 1985, based upon a request of Gordon Roberts, Assistant Chief of Aquatic Lands for NR. At that time, Roberts was employed in a Division of State Lands, as an administrative assistant involved with investigations and enforcement. He held that position until May 1, 1987.

    
    

11. On December 4, 1985, Roberts went to the site and observed that cypress harvesting had taken place in wetlands, in a submerged area. The area he observed was one involving buttress cypress trees. Roberts observed that harvesting was being done in an area below a line which represents the minimum flood plan line, a control line for what is described as the water management division.

    
    

12. In conversation which Roberts had with the Respondent following the Feulner visit to the site, Roberts explained to the Respondent that there was some question about whether the cutting was on privately owned land or submerged land belonging to the State. He further advised the Respondent not to cut anymore in that area until a determination could be made about ownership of the property.

    
    

13. Roberts wrote to the Respondent on December 13, 1985. A copy of this correspondence may be found as DNR Exhibit 1 admitted into evidence. Respondent says he did not receive this correspondence Nonetheless it was sent to the address utilized in noticing of the Respondent of the final hearing in this cause, as attended by the Respondent. The letter mentions concerns of the State on the subject of the belief held by the State that cutting was being done on its property. It went on to say that a survey was going to be conducted to decide where the line of demarcation between the upland owners property and that of the State would occur. The letter states that DNR preferred to have the matter settled amicably but indicated that trees should not be cut where buttressed cypress were found nor any other trees below the ordinary high water line of the lakes in question. It warned Respondent that a fine of $10,000 could be imposed under the provisions of Rule 16Q-14, Florida Administrative Code, for unauthorized removal of the trees and that the fine could be mitigated. Further it was stated voluntary cessation of the tree cutting would be a consideration on the amount of the fine. Finally, the letter stated that the Respondent could contact the State concerning these issues.

    
    

14. By activities of Louis Neuman, Senior Forester for DNR, an attempt was made to ascertain the value of cypress trees which were cut in the areas in dispute. Mr. Neuman is qualified to assess the value of the trees cut. A description of his evaluation may be found in DNR Exhibits 12A-C representing the assessment made in Little Lake, Lake Bradley, and Lake Tsala Apopka. This involves a survey of December 18-20, 1985, as made by Mr. Neuman. He found that

    value involved in the cutting to be $440, $1,364 and $2,948, respectively, for Little Lake, Lake Bradley and Lake Tsala Apopka. These findings were related to Gordon Roberts in a memorandum of February 25, 1986, a copy of which may be found as DNR Exhibit 2 admitted into evidence. His assumption was that 78 trees, 306 trees and 815 trees had been cut within Little Lake, Lake Bradley and Lake Tsala Apopka, respectively. The total amount for cut cypress trees in all three lakes was $4,752, per Mr. Neuman's observations. Comparing his observations to those of the Respondent and Lovett, there is a disparity in valuation; however, it suffices to say that a substantial dollar amount of product was destroyed and removed from sovereign waters. This was an arrangement in which the Respondent was a knowing participant, who profited from the endeavor.

    
    

15. In spite of the conciliatory tone of the letter of December 13, 1985, from Roberts to the Respondent, on March 26, 1986, a notice of violation or administrative complaint was brought against the Respondent concerning the observations made on December 4, 1985 and in view of the $4,752 statement of damages on the part of Mr. Neuman. The State sought to collect that amount of money and $2,000 punitive damages. A copy of the March 26, 1986 complaint letter may be found as DNR Exhibit 3 admitted into evidence. That complaint or notice of violation was subsumed in action of July 2, 1986, which forms the basis of the present dispute and for which the Respondent sought timely hearing. In the present complaint, allegations are made concerning observations of November 20, 1985, and the assessment of an administrative fine of $6,752 for what is described as a first offense. There is set forth in the notice of violation a second count or claim of violation pertaining to events of April 1, 1986, in which Respondent is stated to have willfully and knowingly removed products from the same area in which sovereign lands are said to have been involved. For this alleged second offense, DNR sought the imposition of an additional $10,000 fine.

    
    

16. The accusations concerning a second offense arise from an investigation performed by Robert Verlato, an officer with the Florida Marine Control, which was conducted on April 1, 1986. He went to the Bradley Lake site where the cutting had been done in the past and observed three individuals at work. These were members of the Respondent's crew, including James Gunn and Respondent's two sons. He saw them operating a chain saw cutting the base of the stump which was approximately two feet in length. Gunn was operating the saw. Verlato told the individuals to stop work and they did. He arrested them for trespassing and removing state property. Respondent then arrived at the scene and indicated that he should be charged if there were any violations, and that the three men were members of his crew under his supervision and control. Verlato also observed other freshly cut stumps than the one which he had seen crew members working on, which stumps were in the same general area. He collected ten of the these fresh-cut stumps and took them as evidence for the criminal court case.

    
    

17. Respondent indicates that the activities of April 1, 1986, had to do with the cleanup of this site requested by Ms. Farrow and not for purpose of further removal of cypress products for Respondent's benefit. The facts lead to the conclusion that while the Respondent may have had in mind accommodating Ms. Farrow, he also was accommodating his financial interests as well. This conclusion is supported by Respondent's Exhibit 2 admitted into evidence which was a letter from Ms. Farrow to Respondent on May 19, 1986, after the April 1, 1986, incident in which she asked the Respondent to observe the state's suggestions that no further cutting and hauling be done related to the cypress trees in question.

18. Composite Exhibit 5A-D constitutes photographs of the site related to Lake Tsala Apopka showing where trees have been removed.

    
    

19. DNR Common Exhibits 6 and 14 is an aerial photograph which marks the places where the subject cypress trees have been cut in the three lakes. They are shown in red marking.

    
    

20. The findings about cutting that was done in Tsala Apopka Lake are not conclusive because the ordinary high water line for Lake Tsala Apopka was not established. This circumstance is discussed in the following paragraph.

    
    

21. DNR commissioned an ordinary high water line study to be performed by Douglas A. Thompson, Professional Land Surveyor, registered in the State of Florida, and other states. He is the Assistant Chief of the Bureau of Survey and Mapping for DNR. Other members of his team included Kenneth M. Campbell, Bureau of Geology, and geologist for DNR; Catherine M. Gilbert, Bureau of Aquatic Plants, and botanist for DNR; and Louis A. Neuman of the Bureau of Mine Reclamation, forester. The details of this study are set forth in DNR Exhibit

    11 admitted into evidence which is a copy of the ordinary high water lines survey of Bradley Lake and Little Lake. This study established the ordinary high water line elevation for Bradley Lake at 42.75 feet and for Little Lake at

    41.75 feet. Areas where cypress trees were observed to have been cut in the operations of Lovett and the Respondent showed that in Little Lake the maximum elevation for those cuttings was 40.3 feet and at Lake Bradley the maximum elevation was at 41.4 feet. Both of these measurements are below the ordinary high water line elevation for those two water bodies. This confirms that Lovett and the Respondent were destroying and taking products belonging to the State which were below the ordinary high water line and within the boundaries of the sovereign's ownership. Due to the special nature of Lake Tsala Apopka, DNR was unable to establish with exactitude the high ordinary high water line for Lake Tsala Apopka. They were able to approximate that line at 42.75 feet in a setting where the maximum elevation of cuttings of cypress within that lake were found at 41.2 feet.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action in keeping with Section 120.57(1), Florida Statutes.

    
    

23. Section 253.04(2), Florida Statutes (1985), creates the authority on the part of the Board of Trustees of the Internal Improvement Trust Fund to fine persons who have committed the following acts:

(2) In lieu of seeking monetary damages pursuant to subsection (1) against any person or the agent of any person who has been found to have willfully damaged lands of the state, the ownership or boundaries of which have been established by the state, or willfully damaged or removed products thereof in violation of state or federal law or to have knowingly refused to comply with or willfully violated the provisions of this chapter, the board may impose a fine for each offense in an amount up to $10,000 to be fixed by rule

and imposed and collected by the board in accordance with the provisions of chapter

120. Each day during any portion of which such violation occurs constitutes a separate offense. This subsection does not apply to any act or omission which is currently subject to litigation wherein the state or any agency of the state is a party as of October 1, 1984, or to any person who holds such lands under color of title. Nothing contained herein impairs the rights of any person to obtain a judicial determination in a court of competent jurisdiction of such person's interest in lands that are the subject of a claim or proceeding by the department under this subsection.

Respondent has been involved in the willful damage and removal of cypress trees, products owned by the State. These products were found waterward of the ordinary high water line in Lake Bradley and Little Lake. Evidence of his participation was established by the events of November 20, 1985, and April 1, 1986, and at other times, by the actions of his work crew, condoned by the Respondent. He is charged with the two specific incidents, of November 20, 1985, and April 1, 1986. Sufficient proof has been made as to each of those incidents to find Respondent responsible and subject to a fine. The fine to be imposed is controlled by Rules 18-14.002 and 18-14.003, Florida Administrative Code, formerly Rules 16Q-14.002 and 16Q-14.003, Florida Administrative Code, respectively. The present statement of Rule 18-14.002, Florida Administrative Code, is as follows:

1. A person or agent of a person who willfully damages state land, willfully damages or removes products from state land in violation of state or federal law, or knowingly refuses to comply with or willfully violates the provisions of Chapter 253, F.S., shall also be in violation of this rule and shall incur a fine up to $10,000 per offense.

2. When determining the amount of a fine to be imposed, the board shall consider:

   1. the value of products removed from state lands;

   2. the diminished value of state land or products, or the cost of restoring the affected state land or products;

   3. lost revenue from impaired use of the affected state land;

   4. the need to deter future violations by removing any economic benefits to the

      violator from failure to comply with the law;

   5. aggravating or mitigating circumstances specific to the violation, including the nature and extent of the

      violation, a violator's degree of cooperation in correcting the violation and a violator's good faith efforts to negotiate a settlement before formal legal proceedings begin; and

   6. lost or impaired opportunities for public use of the affected state land.

3. Payment of all or part of a fine may

   be waived when purposes of the law and this rule are not frustrated, and when fairness would result.

4. Fines imposed pursuant to this rule shall be:

1. $1-$2,500 for the first offense; and

2. $1,000-$10,000 for the second or subsequent offenses.

3. Fines for first offenses may exceed

$2,500 upon approval by the board.

This rule sets forth the method by which his conduct is measured in terms of appropriate penalty or fine. The substantive violation which the Respondent is said to be subject to is announced at Rules 18-14.003(2) and (6), Florida Administrative Code, which state:

18-14.003 Violations. It shall be a violation of this rule for any person or the agent of any person to knowingly refuse to comply with any provision of Chapter 253, F.S., willfully violate any provision of Chapter 253, F.S., or to willfully damage state land (the ownership or boundaries of which have been established by the state) or products thereof, by doing any of the following:

(2) Remove, in violation of state or federal law, any product from state land without written approval or specific exemption from the board or department.

(6) Any other willful act that causes damage to state land, or products thereof, when such activity occurs without the

required approval by the board or department.

Respondent has been involved in the removal of the cypress trees, products belonging to the State, without written approval or any exemption from the Board of Trustees of the Internal Improvement Trust Fund or DNR and has been involved in the willful damage to those cypress trees owned by the State, again without approval of the Board of Trustees of the Internal Improvement Trust Fund or DNR.

Having considered the nature of these violations and in keeping with the format set forth in Rule 18-14.002, Florida Administrative Code, it is

RECOMMENDED:

That a final order be entered which imposes a fine in the amount of $1,000 for the first offense of November 20, 1985, and a fine of $2,000 for the second offense of April 1, 1986, for a total fine of $3,000 in the aggregate.

DONE and ENTERED this 11th day of August, 1987, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2974

The factual findings suggested by counsel for the parties have been utilized in the recommended order with the exception of:

Petitioner's fact proposals

1. Those proposals found at paragraphs 4, 5, 6, 10, 12, and 13 are subordinate to facts found in the recommended order.

2. Those facts found in paragraph 17 are not necessary to the resolution of the dispute.

3. Those facts found in paragraph 19 are contrary to the facts found in the recommended order.

4. The suggestion in paragraph 22 that Respondent's business concern was cutting timber is not in keeping with facts found in the recommended order. Respondent was found to have been involved with the taking of slabs and knees and Lovett was cutting the cypress trees.

5. Paragraphs 23 and 26 are subordinate to facts found in the recommended order.

6. The suggestion in paragraph 27 that the ordinary high water line study was commissioned to examine Lake Tsala Apopka is contrary to the nature of that study.

7. Paragraphs 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42,

43 and 44 are subordinate to facts found in the recommended order.

1. Paragraph 45 is contrary to facts found.

   
   

   Respondent's fact proposals

   
   

2. Paragraphs 5, 6 and 8 are subordinate to facts found.

3. Paragraphs 7 is contrary to facts found.

COPIES FURNISHED:

Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

James V. Antista, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Mr. Ron Harrod

Post Office Box 1662 Bushnell, Florida 33513

Kenneth L. Travis, Esquire Stepp and Travis, P.A.

220 South Pine Avenue Inverness, Florida 32562

Docket for Case No: 86-002974

Orders for Case No: 86-002974