The Issue The issue for consideration in this case is whether the Respondent's license as a certified general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Construction Industry Licensing Board was the state agency responsible for the licensing and regulation of construction contractors in this state. Respondent, Frank W. Miller, was licensed as a certified general contractor in Florida under License No. CG C036176. On June 2, 1988, Lots of Casey Key, Inc., a group of investors and contractors, including the Respondent, purchased the land in question located in Sarasota County, Florida. On June 26, 1988, the group hired an environmentalist from a list provided by the county, who evaluated the property with a view toward development. The developers also hired a surveyor and an engineer to get the proper permits for the development. They also published all required notices and acquired at least some of the required permits for the initial stage of the development. This consisted of the construction of a fishing pier extending from the property into Sarasota Bay. This permit was taken out by the Respondent. The Respondent and his associates also contacted Robert B. Patten, an environmental consultant, with a view toward having the eight acres in question rezoned so that houses could be built on it. After examining the property, however, Mr. Patten advised Respondent there were so many protected mangroves on the property, both state and local permits would be required and he, Patten, was not interested in the job. He suggested that Respondent hire an attorney to insure the proper permits were obtained. Respondent claims that in January of 1989, he took his site drawing for the proposed development to the county natural resources office headed by Mr. McCarthy, told him what was planned at the property, and secured his approval. Mr. McCarthy was not called as a witness, and all the appropriate permits were not offered, so at most it can be found that McCarthy approved the concept of the activity in principle. At approximately this same time, the environmentalist the group hired to insure compliance with the environmental requirements purportedly also assured them that the proposal was environmentally sound and properly permitted. It is accepted that he did. As a result, the group acquired the state and county permit for the pier and, in addition, a permit to clear the uplands. They also procured a permit from the Southwest Florida Water Management District and the appropriate agency governing the construction and installation of utilities. In addition, the Respondent procured a permit allowing construction of a boardwalk and a seawall. He did not, however, procure the appropriate permit to allow him to cut, trim, or top mangroves in the numbers shown here. The group hired Southern Landscaping to do all the land work under a contract which called for all mangrove trimming to be done in accordance with the Division of Natural Resources rules This company, which was the low bidder in the procurement process, was relied on to trim the mangroves in accordance with the law and before beginning work, showed how the trees would be trimmed. It appeared to Respondent at this time that the work was being and would be done properly. On March 10, 1989, Belinda S. Perry, an employee of the county's Natural Resources Department, was out on Casey Key and observed that at the Respondent's work site clearing work was being done. She questioned the permitability of this work. She also observed that the mangroves on the north side of the property had been improperly cut, and she asked her associate, Mr. McCarthy, to check it out. He did and thereafter, on March 14, 1989, Respondent came to the office with a copy of his state-issued permit. After analyzing the permit and comparing the work done with the terms thereof, Ms. Perry and Mr. McCarthy advised Respondent it appeared his work was in excess of the limits imposed by his permit and that they would have to notify state authorities and get back to him. At that time, Respondent was cooperative and indicated he wanted to get the proper authorization. As a result, Ms. Perry contacted Ms. Toledo, of the Department of Environmental Regulation, discussed the possible violation with her, and arranged to visit the site with her on March 20, 1989. When they did, Ms. Perry again observed the cutting on the North side of the property in addition to which there was a corridor which had been cut to the east (water) side of the property heading toward the bay. At that point, they contacted Mr. McClintock, the forester, who examined the Respondent's permit. When he saw it permitted only the relocation of 20 palm trees and made no mention of or gave no approval of cutting or trimming of mangroves, he authorized the issuance of a stop work order on March 20, 1989. Ms. Perry and Ms. Toledo, pursuant to the terms of that order, served a copy on Mr. Miller and advised him he was in violation of both state and county regulations and should discontinue the work at the site. Ms. Toledo recalls that when she visited the site on March 20, 1989, she observed much the same situation as described by Ms. Perry. She also recognizes that one of Respondent's permits allowed the moving of palms, and he also had one for the construction of a fishing pier. As a part of this second permit, Respondent was allowed to cut mangroves. Nonetheless, she noted on her visit that in the area to the left of the pathway, many more mangroves had been cut than were allowed by the permit. This cutting was in the form of trimming in excess of any exemption criteria outlined in Rule 17-27.060, F.A.C., (17- 321.060), which allows trimming by a property owner without a permit, but of no more than 25 % of the lateral branches. The red mangroves on the property had been topped which is totally prohibited, and the trimming of the remaining white and black mangroves was to an extent in excess of the permitted 25%. At that time, Mr. Miller indicated to Ms. Toledo that he was the general contractor in charge of the site, and the workers doing the actual trimming were operating under his direction. This is corroborated by the testimony of Mr. Boatright, one of the trimmers, who indicates much the same. At that time, in Ms. Toledo's opinion, Mr. Miller was uncooperative and aggressive and as a result, on March 31, 1989, she drafted a warning notice which was issued on April 3, 1989. On that latter date, Ms. Toledo again went to the site and saw that additional and different mangroves had been trimmed in excess of the exemption criteria mentioned above. Thereafter, on April 7, 1989, she had a telephone conversation with the Respondent during which she advised him that the Department of Environmental Regulation intended to file criminal and civil charges against Lots of Casey Key, Inc. because of the violations described. At that time, Respondent expressed his regret that the situation had happened. As a result of the visits by Ms. Toledo and Ms. Perry, in late March or early April, 1989, Steven T. Cooley, environmental prosecutor for the 15th Judicial Circuit of Florida, was notified through the Sarasota County Sheriff's Department and Division of Natural Resources that there was significant damage to a mangrove forest at Lots of Casey Key. Mr. Cooley conducted an extensive investigation into the matter and caused a collateral criminal investigation to be conducted as well, and as a result of these inquiries, decided to file criminal charges against Mr. Miller and a co-defendant, Mr. Burke. This decision was based on the investigation which revealed that the county's tree protection ordinance, Ordinance 83-44, which included mangroves among the protected species, had been violated. It appeared that Respondent and Mr. Burke had hired subcontractors who committed a significant cutting, (trimming, topping and stumping) of more than 2000 mature trees. The Respondent and Burke were contacted by code enforcement people, (Perry and Toledo), and advised to stop. Nonetheless, additional damage was done after the notice to stop and a Stop Order was thereafter issued. Respondent had a permit to cut mangroves in a corridor area out to the fishing pier, but the actual cutting far exceeded the terms of the permit. The first cutting was a thinning out of mangroves around Casey Key, which, in itself, was a violation, and even after the Respondent was informed he was in violation, he improperly cut more trees. Not all trees were cut down to the ground, but many of those which were illegally trimmed were trimmed to a point where the tree would ultimately die. This was verified by county tree experts. Mr. Cooley filed criminal charges against the Respondent rather than the actual workers who did the cutting because, in his opinion and as a result of his investigation, the workers were merely agents working under the direction of the Respondent. Mr. Miller originally pleaded Not Guilty to the charges against him but subsequently, on June 25, 1990, changed his plea to Guilty. At a sentencing hearing held in December, 1990, adjudication of guilt was withheld, and Mr. Miller was fined a total of $15,000.00; ordered to perform 500 hours of public service, and ordered to spend 10 weekends on the road gang. In addition to the criminal charges, a civil suit was filed by the county against Lots of Casey Key, Inc., to prevent additional cutting of mangroves. By stipulation, a temporary injunction was entered. Trial on the permanent injunction had not been held at time of hearing. According to Mr. McClintock, a sampling taken on March 22, 1989, after the stop work order was approved, showed approximately 2175 mangrove trees had been severely cut on the northern side of the property and between 75 and 100 cut down to the ground in the corridor on which the pathway to the fishing pier was to be constructed. This accounted for a total of 2275 trees. When he went back to the property on March 30, 1989, after the stop work order had been issued, McClintock observed that while cutting was no longer in progress, an additional cutting had taken place, and he counted approximately 78 additional trees which had been destroyed. He later verified that additional trees were cut in the corridor area as well. Taken together, a total of approximately 2350 trees were improperly cut in violation of the state and county codes protecting mangroves. This destruction is the largest in the recollection of Norman C. Easey, the Director of the county's forestry division, and it constituted a serious impact on what was then the largest single mangrove stand in the southern part of Sarasota County. Respondent does not deny that the trees were cut. He notes, however, that after Ms. Perry first came out and advised him of the possibility he was in violation, he agreed not to cut further and in fact, tried to cooperate. He met with his associates who encouraged him to nonetheless continue the cutting even though he advised against it. Ultimately he was able to convince them. An associate, Norman Sharrit, the architect for the project, recalls that Respondent spontaneously exclaimed to him that Burke and Jaffe, the other partners, directed the additional cutting after the stop work order was issued. Nonetheless, after securing his associates' agreement to suspend any cutting, Respondent attempted to contact the trimmers, Southern Landscaping, to advise them to stop work but claims he could never find anyone on site. In this claim, he is supported by Davis Baker, an adjacent retired homeowner, who, in observing the clearing process on a daily basis, noticed that the cutters kept very irregular hours and were gone as often as not. Respondent also claims he left word for the cutters to stop on the company's answering machine but the work continued. It is this additional work, after Respondent's efforts to get the work stopped, that constituted the additional cutting charged. Respondent also claims that the additional trees near the walkway were cut as activity beyond the scope of the contract which he had entered into with the landscape company. Mr. Miller also contends that the work was not done under his license because he was not an owner of Casey Key Estates. The owners of that company, the parent company for development, were Mr. Burke and Mr. Jaffe. He was, however, the Secretary of the corporation, but claims he did not have complete control as to who did what and where. He claims he was not a stockholder in the company and had no ownership in the operation. Under the terms of his agreement with the owners, he was to get a percentage of the profits when the development was completed. As of the date of the hearing, he has received nothing in the way of remuneration. Except for the claim that the work was not done under his license, it is so found. He also claims that in the instant case he was not acting as a contractor for the project. His reasoning here is not supported by the facts. His relationship with the other developers was based on the fact that he obtained the option to purchase the land; he was to put in the utilities; and he was to build the homes and construct the walk over to the beach and the seawall. He also was the one who obtained all permits and who entered into the contract for trimming with Southern Landscaping. It is found, therefore, that he was, in fact, the general contractor for this project and ultimately responsible for all actions taken under his certificate. Mr. Miller cites in his defense that as he understands the law, mangroves can be trimmed without a permit between October and March, up to 25% of the lateral growth, and in his opinion, the trimming did not constitute more than that allowable 25%. This is clearly not so, as evaluation of the Petitioner's photographs, taken near the time in question, which Respondent agrees fairly represents the site at the time, clearly indicates that more than 25% of the lateral growth of the trees' foliage was taken off. It should be noted, however, that a photograph taken some substantial time after the cutting shows that the trimmed area is filling in again and the trees are not dead. This does not mean there was no damage, however. Mr. Easely, the Director of Forestry, whose expertise indicates a reliable opinion, opined that the mangroves are not as healthy as they should be. Once cut, they are going through a period of shock and are branching out from reserve buds developed by the tree for emergency situations such as fire and damage. The tree, once in this condition, has a much shorter life span. Though new trees may, and probably will come in, there is a loss of habitat in the a rea as a result of the trimming, of some 30 to 40 years. In any case, minimization of damage does not excuse or justify prohibited trimming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frank W. Miller's certification as a General contractor be suspended for three years, with the execution of the last two years of the suspension stayed under such terms and conditions as prescribed by the Construction Industry Licensing Board, and that he pay an administrative fine of $5,000.00. RECOMMENDED this 8th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1991. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Frank W. Miller 20 Dover Drive Englewood, Florida 34223 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The following issues have been raised by the Department: Did the Respondents carry out any dredge, fill and bulkhead activities on Mr. Romaine's land within the "waters of Florida"; if so, to what extent? If dredge, fill and bulkhead activities took place within the waters of Florida, did they cause any damage to the natural resources the Department is charged with protecting; and, if so, to what extent? If such activities took place within the waters of Florida, what actions would be appropriate to remedy the violations and the damage caused? What is the amount of expense and damage, if any, which the Respondents should be required to pay to the Department?
Findings Of Fact Mr. Romaine and his wife Purchased land along the shore of the St. Johns River on December 10, 1984. The property was purchased from Milton C. and Cheri A. Rosberg and was secured by mortgage from James L. Tison, Jr., and Frances S. Tison. The land purchased by the Romaines (hereinafter referred to as the "Property") is located on the westerly bank of the St. Johns River in Clay County, Florida. The Property is more particularly described in the copy of the Warranty Deed accepted into evidence as the Department's exhibit 1. The property immediately to the north of the Property is owned by Mr. Rosberg. The property immediately to the south of the Property is owned by Mr. and Mrs. Tison. The Tisons have resided on the property to the south of the Property for approximately 27 years. The Tisons formerly owned the Property. Mr. Tison mowed the grass on the Property and otherwise maintained the Property prior to its sale. The Tisons are familiar with the shoreline of the St. Johns River along the Property both before and after December of 1985. During the latter part of 1985, Mr. Romaine contracted with B & W for the construction of a bulkhead along the western border of the Property and the St. Johns River. From approximately December 3, 1985, to December 7, 1985, a bulkhead was built along the portion of the Property fronting on the St. Johns River. No application for dredge and fill or bulkhead activities was filed with the Department with regard to the activity on the Property, and no such permit was issued by the Department. Mr. Romaine relied upon B & W to obtain any permits required for the construction of the bulkhead on the Property. The Department was not asked whether a permit was required for the construction of the bulkhead on the Property. Other State and federal agencies were consulted concerning their jurisdiction over the construction of the bulkhead on the Property. In addition to the portion of the bulkhead constructed on the Property, approximately 31 feet of bulkhead was constructed from the border of the Property with Mr. Rosberg's property north to a dock located on Mr. Rosberg's property. Mr. Rosberg gave Mr. Romaine permission to use the dock in exchange for the construction of this portion of the bulkhead. For purposes of presenting evidence, the Department divided the bulkhead constructed along the Property into two sections: Area "A" and Area "B." Area A consists of a portion of the bulkhead which begins at the border of the Property and Mr. Rosberg's property and runs in a relatively straight line to the south for approximately 48.2 feet. The bulkhead then begins a gradual, then more pronounced, curve to the west. This is the end of Area A. The bulkhead in Area B goes almost perpendicular to the tangent of the curve in a southern to southwesterly direction in a straight line for approximately 23 feet. The bulkhead then makes a sharp turn to the west and proceeds in a straight line for approximately 12.5 feet where it intersects with the Property's southern boundary. Areas A and B are shown on the Department's exhibit 2 and Romaine exhibit 8. The designation of Areas A and B on these exhibits was not prepared by a licensed surveyor; the designation was intended only as an approximate drawing of portions of the Property. A wetland area is an area which experiences flooding or inundation of water often enough for the area to become defined by species of plants and soils characteristic of areas subject to flooding or inundation of water. Wetlands are potentially the most important part of a water body. Wetlands can maintain water quality, acting as the "kidneys" of a water body, provide habitat not found elsewhere, act as a flood storage area, protect against erosion and play an essential role in the life cycle of aquatic plant and animal life. Water quality will deteriorate if wetlands are destroyed. The wetlands that border the St. Johns River act as a flood plain where water is stored during periods when the River is high. The determination of the extent, if any, of the Department's jurisdiction over the bulkhead built on the Property, is more difficult in this case than in a case where a permit is applied for because of the inability of the Department's experts to examine the Property in its natural, undisturbed state. Because of the changes to the natural state of the Property, including filling activities, many of the natural indicators used to determine the Department's jurisdictional line on the Property have been eliminated or altered. If there is insufficient physical or other evidence to the contrary, the landowner should be given the benefit of any doubt the Department has in setting the Department's jurisdictional line and a line of restoration where property is examined after it has been altered. In determining the extent of the Department's jurisdiction in this case, the starting point is the St. Johns River itself. The open water of the St. Johns River is a water body over which the Department has jurisdiction pursuant to the Florida Administrative Code. Area B used to be a wetlands area prior to the placement of the bulkhead on the Property and the placement of fill behind the bulkhead. This finding of fact is supported, in part, by the location of a large cypress tree, which is a wetlands tree. This tree is the first tree encountered behind the bulkhead in Area B and is the dominant upper canopy vegetation. This tree has been marked by a red "X" on the Department's exhibits 2, 3 and 7. Additionally, the area to the east and south of the bulkhead (between the bulkhead and the St. Johns River) still remains as wetlands. Because of the alteration of Area B by the bulkhead and the placement of fill behind the bulkhead, it is not possible to determine exactly how far the Department's jurisdictional line goes landward from the shore of the St. Johns River. At a minimum, the area between the dashed line and the bulkhead on the Department's exhibit 3 constitutes wetlands and lands within the Department's jurisdiction. By filling the area identified in the Department's exhibit 3 as within the Department's jurisdiction, wetlands of the St. Johns River have been destroyed. This has resulted in the elimination of an area which served the functions of wetlands as explained in findings of fact 10-12. To ignore the fact that the construction of the bulkhead was completed without a permit or to now grant a permit could affect other bulkhead and fill projects along the St. Johns River. Even though the effect of the filling of Area B may be small, the cumulative impact of the destruction of multiple small areas of wetland would have an overall negative effect on the quality of the St. Johns River. In order to remedy the damage in Area B the original status quo of the area should be restored. This requires the removal of the bulkhead in Area B and all fill added behind the bulkhead in Area B down to the original contour of the land and revegetating the area with indigenous wetland vegetation. During this process, steps must be taken to control turbidity and to prevent pollution of adjacent waters. Additionally, it would be appropriate to require that numbered paragraphs 5c, 6, 7, 8 and 9, in the Department's exhibit 10, be complied with in restoring Area B. The Department's experts were unable to say where the Department's jurisdictional line was located in Area A of the Property because there was no physical evidence remaining after construction of the bulkhead from which it could be determined where the natural shoreline of the St. Johns River was located at the time of the Department's examinations. Despite the inability of the Department's experts to precisely locate the Department's jurisdictional line based upon the current condition of Area A, other evidence supports a finding of fact that the bulkhead in Area A was built within the jurisdiction of the Department. In particular, the testimony of Mr. and Mrs. Tison and the Department's exhibits 12A-12D, support a finding that the portion of the bulkhead constructed in Area A of the Property extends into the waters of the St. Johns River to the east of the former shoreline of the Property. Fill was then placed into the River between the bulkhead and the former shoreline. Mr. Tison drew a line in red on the Department's exhibit 11. This line represents the approximate former shoreline of the St. Johns River prior to the construction of the bulkhead on the Property. The area between this red line and the bulkhead is within the Department's jurisdiction. B & W used a Case 410 tractor backhoe to construct the bulkhead. This tractor had outside wheels eighty-two inches apart and it weighed approximately 14,000 pounds. A bucket at the end of the tractor was used for digging. The bucket was approximately two feet wide and the arm, when fully extended, could perform work approximately eight feet away from the body of the tractor. After digging a trench where the bulkhead was to be placed in Area A, a water jet was used to sink four-by-six posts five feet apart. Two-by-eight boards were then stacked between the posts six boards high. The backhoe was used to dig a hole approximately twelve feet behind each post where a deadman was sunk or a tieback was attached to each post. The Department's exhibits 12A-12D are Photographs of Area A during the construction of the bulkhead. They all show water of the St. Johns River between the posts to the west where the shoreline of the St. Johns River was located. Based upon the size of the backhoe, Mr. Woodyard's testimony that the backhoe's wheels, while the backhoe straddled the bulkhead area to dig the trench, were on dry land is not credible. The Department's exhibits 12A and 12D show a leaning cypress tree in the waters of the St. Johns River. The bulkhead posts pictured in these exhibits are several feet into the River. In Romaine's exhibits 3 and 4, and the Department's exhibit 4 the same leaning cypress tree is several feet landward of the bulkhead. The Department's exhibit 12C shows the bucket of the backhoe totally submerged in the waters of the St. Johns River. This further supports a finding that dredging and filling occurred in the waters of the St. Johns River. When the Department's exhibits 12A-12D (photographs of the bulkhead construction in Area A) are compared with Romaine exhibits 3 and 4 and other photographs taken after construction of the bulkhead in Area A, it is evident that fill was placed between the bulkhead and the former shoreline of the St. Johns River. The construction of the bulkhead in Area A has caused the same damage that the construction of the bulkhead in Area B caused. The same remedy suggested for Area B would also be appropriate for Area A. The Department incurred $730.17 in its investigation of this matter and the preparation for the formal hearing of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued finding that the Respondents have violated Section 403.161(1)(a) and (b), Florida Statutes (1987). It is further RECOMMENDED that the Final Order provide that the Respondents, jointly and severally, must pay $730.17 to the Department within twenty (20) days from the date of the Final Order in this case in reimbursement of the Department's expenses. Payment shall be made by cashiers check or money order and shall be payable to the Department of Environmental Regulation. Payment shall be sent to the Department of Environmental Regulation, Northeast District, 3426 Bills Road, Jacksonville, Florida 32207. It is further RECOMMENDED that the Final Order Provide that the Respondents are to restore the areas of the Property described in this Recommended Order within Sixty (60) days from the date of the Final Order as follows: All of the vertical bulkhead located on the Property shall be removed; All fill material within the jurisdiction of the Department shall be removed and placed upland of the Department's jurisdiction as described in this Recommended Order (the portion of Area A between the St. Johns River and the line drawn in red on the Department's exhibit 11 and the portion of Area B between the St. Johns River and the dashed line on the Department's exhibits 2, 3 and 7. The area from which the fill material is removed shall be restored to the elevation which existed prior to the violation; and During restoration of the Property, adjacent areas within the jurisdiction of the St. Johns River shall not be disturbed unless otherwise approved by the Department in writing. It is further RECOMMENDED that the Final Order provide that the Respondents shall carry out the activities described in paragraphs 5c, 6, 7, 8 and 9 of the Department's exhibit 10. It is further RECOMMENDED that the Final Order Provide that the Respondents are not to undertake any additional dredge and fill activities within the waters of Florida, other than the restoration measures described in the Final Order, without obtaining a permit or written notice that the work is exempted from permitting from the Department. It is further RECOMMENDED that the Final Order provide that the Respondents are to allow authorized representatives of the Department access to the Property at reasonable times for purposes of determining compliance with the Final Order in this case and with Chapter 403, Florida Statutes, and the Department's rules promulgated thereunder. DONE and ENTERED this 2nd day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 2nd day of March, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact: Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Hereby accepted. 2 1. 3 3 and 9. 4 13. 5 These proposed findings are not necessary. They affect the weight to be given to some of the evidence. 6 10. 7 11. 8 12. 9 14. The portion of this proposed finding after the first sentence constitutes proposed conclusions of law. 10. Hereby accepted. 11 13. 12 20. The portion of this proposed finding after the first two sentences constitutes proposed conclusions of law. 13-15 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 15-17. 16 This paragraph is not a proposed finding of fact. It is a summary of testimony concerning law. 17-19 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 18-19 and 28. These proposed findings are not necessary. They affect the weight to be given to some of the evidence. Summary of testimony. 22 6. 23 29. 24-26 Summary of testimony. See 3 and 21. The weight of the evidence did not support a finding that the fill in Area A extended into the St. Johns River approximately 20 feet at its widest point. 27 5 and 7. 28 8. 29 Hereby accepted. 30 22. 31-32 Summary of testimony. See 23-25. 33 25. Not Supported by the weight of the evidence. 26. The last sentence is not supported by the weight of the evidence. Cumulative and unnecessary. 37 27 38-39 Conclusions of law and argument. 40-41 Hereby accepted. Mr. Romaine's Proposed Findings of Fact: The first paragraph under the Findings of Fact portion of Mr. Romaine's proposed recommended order does not contain any relevant findings of fact. Summary of testimony and irrelevant proposed findings of fact. Summary of evidence. The following numbers correspond to the numbers of the sentences contained in Mr. Romaine's "Procedural Statement." 1 and 3. 4 and 7. Hereby accepted. Irrelevant. 5-6 Not supported by the weight of the evidence. See 5 and 6. 7-17, 19-27 32-39 and 42 Irrelevant or not supported by the weight of the evidence presented at the formal hearing. 18, 28-31 and 40-41 Hereby accepted. COPIES FURNISHED TO: JOHN P. INGLE, ESQUIRE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400 WILLIAM A. ROMAINE 2127 WINTERBOURNE, WEST ORANGE PARK, FLORIDA 32073-5621 ROBERT E. WOODYARD, PRESIDENT B & W MARINE CONSTRUCTION, INC. 4611 LAKESIDE DRIVE JACKSONVILLE, FLORIDA 32210 DALE TWACHTMANN, SECRETARY STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400 DANIEL H. THOMPSON, ESQUIRE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400
The Issue The issues are (1) whether Respondents, Frank H. and Linda M. Molica, dredged and filled wetlands on their property in Merritt Island, Brevard County (County), Florida, without a permit and should take certain corrective actions, and (2) whether Respondents' activities are exempt from permitting under Section 373.406(2), Florida Statutes.1
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 1990, Respondents purchased a 3.47-acre, rectangular- shaped parcel at 2050 North Tropical Trail, Merritt Island, Florida, which is located within the regulatory jurisdiction of the District. See § 373.069, Fla. Stat. The parcel identification number is 24-36-15-00-00764-00000.00. The property is less than a mile south of State Road 528 (A1A), approximately one-half mile west of State Road 3 (North Courtney Parkway), and around one-half mile east of the Indian River. The property is bounded on its western side by a roadway known as North Tropical Trail, on the south side by a drainage ditch, and on the east side by another drainage ditch. Further to the east of the drainage ditch on the eastern side of the property are a holding pond and a subdivision known as Copperfield Subdivision developed in 1993, while a nursery is located just south of the drainage ditch on the southern side. The northern boundary of the parcel is five hundred twenty feet long and is adjoined by a vacant parcel of land similar in size to the Molica parcel and which is owned by the Lacanos. The Lacano property is largely a wetland. To the north of the Lacano property is a parcel owned by the Stricklands. Historically, the natural flow of water in the area was north to south, that is, from the Stricklands to the Lacanos to the Molica's property, and then to the drainage ditch on the south side of the Molica's property. When Respondents purchased the property in 1990, citrus trees were located "mostly in the front half," or western side of the property, "but they were also located in the rear scattered throughout." There was also "weed grass" or "mini grass" throughout the entire parcel. In 2002 or 2003, the citrus industry was economically hurt by a drop in prices due to various problems, and it became difficult to find fruit pickers or purchasers for the fruit. Because of these conditions, and pursuant to a recommendation by another citrus grower, Respondents state that they began to "transform their property to palm tree production." In late 2003, Respondents began removing orange trees and clearing the land; this continued throughout 2004. At the same time, they began to remove vegetation from the eastern half of the property, which included the excavation of the vegetation, soil, and roots. This was accomplished by the use of heavy equipment, including a tracked cab with hoe, a bobcat with front end loader bucket and root rake, and a wheeled tractor with front end root rake. This is confirmed by photographs taken of the property in April and December 2004. See District Exhibits 8 through 10. Also, a few cabbage palms were removed that were damaged during the clearing process, as well as trees damaged by hurricanes that struck the east coast of Florida in 2004. The vegetation and soil were trucked off-site for disposal, and new soil or fill was placed throughout the eastern half of the property in which vegetation and soil had been excavated. In some cases, the fill measured as high as thirty-three inches but averaged around one foot in height. There is no dispute that dredging (or excavation) and filling on the property occurred. Respondents did not obtain an Environmental Resource Permit (ERP) before performing this work. On December 13, 2004, the County received a complaint (generated by Mrs. Strickland, the neighbor to the north) about "heavy machinery operating in a wetland" on the Molica property. Mr. Pinnick, who was charged with enforcement of County environmental ordinances, visited the subject property to determine whether a violation of an ordinance had occurred. He observed heavy machinery operating on the central and eastern sides of the property and took several photographs of the site. See District Exhibit 12. He also observed vegetation and muck soil in the disturbed area and standing water in the ditch to the south and concluded that wetlands were being impacted. It is fair to infer that he then notified the DEP about the incident. On December 15, 2004, Mr. Pinnick, accompanied by two DEP employees, Mr. West and his supervisor, Ms. Booker, visited the site and met Mr. Molica and his consultant. At that time, "clearing and [dredging and filling] of wetland at rear [or east end] of Molica's property [was observed]." See District Exhibit 49. The DEP requested that Respondents' consultant "flag a [wetland] line and then Molica have all fill within wetland area removed." The DEP also advised Mr. Molica that "[a]rea then needs to be restored to natural grade." Id. Notes taken by Mr. Pinnick confirm that Mr. Molica agreed to remove the fill "to restore the natural grade and the wetland boundary would be delineated [by Mr. Molica's consultant.]" See District Exhibit The conclusion of both the County and DEP was that wetlands were present in the central part of the property. No formal delineation of wetlands was performed by them since the parties reached an understanding that Mr. Molica's consultant would perform this task. Because Mr. Molica thereafter denied access to the property, this would be the last time regulatory personnel were able to make an on-site inspection of the property until October 2008, when the District obtained an Order authorizing them to inspect the property. The County later charged Respondents with violating the County Code ("prohibitions in functional wetlands"), and the matter was considered by a Special Magistrate. An Order of Dismissal was entered by the Special Magistrate on February 1, 2006, on the grounds the property was zoned agriculture and enjoyed an agricultural exemption, and Respondents agreed to use Best Management Practices, as prescribed by the Department of Agriculture and Consumer Affairs. See Respondents' Exhibit 4. However, neither the DEP nor the District was involved in that action, and the matter concerned an alleged violation of a local ordinance, and not a provision in Chapters 373 or 403, Florida Statutes. At some point in time, but presumably after the site visit in December 2004, Mr. Molica asserted to the DEP that he was conducting an agricultural operation. In early 2005, the DEP referred the matter to the District since the two agencies have an operating agreement concerning which agency will handle certain types of permitting and enforcement matters. By letter dated August 15, 2005, Mr. Molica advised the local District office in Palm Bay, Florida, that the owners of the property were engaging in agricultural activities and denied that any unauthorized fill and excavation activities had occurred. He also requested copies of any statutes, rules, or case law that supported the District's position. See Respondents' Exhibit 2A. On August 3, 2007, the District advised Mr. Molica by letter that it had received a complaint from DEP, that the matter had not yet been resolved, and that it wished to inspect his property to determine if unauthorized fill and excavation activities had occurred. See Respondents' Exhibit 2B. According to a District witness, the delay in responding to Mr. Molica's letter was caused by the building boom occurring in 2005 and 2006, which required action on numerous pending permits, and in-house confusion over whether the DEP or District had jurisdiction to handle the complaint. There is no evidence to suggest that at any time the District agreed that the activities were lawful, or that the delay in responding to Mr. Molica's letter prejudiced Respondents in any manner. After conducting a preliminary investigation, which included a review of aerial photographs of the area, wetland maps, and soil maps, a visual inspection taken from the Copperfield Subdivision to the east and North Tropical Trail from the west, and a flyover of the property, the District issued its Complaint on August 8, 2008. Are there wetlands on the property? To determine whether wetlands were present on the Molica property, the District made a site inspection on October 22, 28, 29, and 30, 2008. Besides making a visual inspection of the property, the staff took photographs, performed twenty-nine soil borings on both the Molica and Lacano properties, reviewed soil surveys for the area, completed one west-to-east transect and five north-to-south transects to determine locations of hydric soils and any fill materials, and observed lichen and water stain lines on trees. The locations of the various soil borings are depicted on District Exhibit 22. Finally, the staff examined a series of aerial photographs of the property. Under the wetland delineation rule, three different indicators are used to make that determination: vegetation; soils; and signs of hydrology. See Fla. Admin. Code R. 62- 340.300(2)(a)-(d). In addition, where the vegetation and soil have been altered by man-induced factors so that the boundary between the uplands and wetlands cannot be delineated by use of Rule 62-340.300(2), such a determination shall be made by using the most reliable information and "reasonable scientific judgment." See Fla. Admin. Code R. 62-340.300(3)(a). The parties presented conflicting evidence on the wetland issue; the District's evidence has been accepted as being the more persuasive and credible and supports a finding that the areas where dredging and filling occurred in the eastern and central parts of the property meet the test for a wetland. Wetland Soils Muck presence is a hydric soil indicator and also a wetland indicator. The District's expert, Mr. Richardson, established that the soil on the property where the dredging and filling occurred was hydric in nature, and therefore indicative of a wetland. Although Respondent's soil expert disagreed with this conclusion, he generally agreed with Mr. Richardson's methodology, and he agreed that muck was present below the fill material. Wetland Vegetation The presence or absence of wetland vegetation is another factor to consider in deciding whether an area is or was a wetland. Wetland hardwood trees, and not grass planted on top of the fill, are more appropriate for evaluating whether the area in which the trees are located was a wetland. Large trees, estimated to be fifty to sixty years old, remain on the property in the vicinity of certain District soil borings. They include boring 20 (swamp tupelo); borings 3, 4, and 5 (red maple, American elm, and holly); and borings 9 and 10 (maple and American elm). These are all wetland canopy species and provide further support for the District's position. Hydrologic Indicators Algal matting is found on the surface of the property in the vicinity of borings 3, 4, 5, 8, and 9. Algal matting occurs because water has inundated the surface of the ground sufficiently long for algae to grow in the water and then remains on the ground surface after the water no longer covers the ground. Rainfall alone does not produce algal mats. Trees on the property provided evidence of being in saturated or inundated soil conditions through the morphological adaptation of buttressing and adventitious roots, particularly in the vicinity of District borings 20, 8, 9, and 10. Also, the trees had lichen lines on them, which are indicators of seasonal high water inundation elevations in wetlands. The presence of muck soils is a hydrologic indicator. As noted above, the District determined through soil borings that muck was under the fill that had been placed on the property. Reasonable Scientific Judgment The evidence established that there was significant alteration to the soils and vegetation across the central and eastern parts of the subject property due to man-induced factors of vegetation removal, dredging, and filling. Through consideration of the most reliable information available, including aerial photographs, the remaining trees on the site, hydrologic indicators, the presence of hydric soils, coupled with reasonable scientific judgment, the evidence established that the areas where the recent dredging and filling occurred met the wetland delineation test in Florida Administrative Code Rule 62- 340.300(3). Agricultural Exemption Mr. Molica is a full-time practicing attorney. His wife is his legal secretary. Respondents contend that since they purchased the property in 1990, they have been continuously engaged first in the occupation of citrus farming, and then beginning sometime in 2004 in the production of palm trees. Therefore, they assert they are entitled to the exemption provided under Section 373.406(2), Florida Statutes. That provision states in relevant part that "[n]othing herein . . . shall be construed to affect the right of any person engaged in the occupation of . . . horticulture . . . to alter the topography of any tract of land consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters." The parties agree that the burden of proving entitlement to this exemption rests on Respondents. When the property was purchased in 1990, there were citrus trees on the land, mainly in the western half. A few navel oranges were later added, and some citrus trees were removed at that time. Beginning at the end of 2003, and continuing in 2004, the citrus trees were removed. At the time of the DEP inspection in December 2004, no potted palm trees were observed on the property. The precise date when they were first placed on the property is not clear. Photographs taken in January 2006, more than a year after the dredging and filling and just before the County code violation charge was resolved, reflect around fifty or so small trees in pots located in a small, cleared section of the property. See Respondents' Exhibit Photographs taken three years later (January 2009), long after the dredging and filling occurred, show a comparable number of small palm trees in pots placed on what appears to be the same part of the property. See Respondents' Exhibit 21. Mr. Molica also submitted numerous documents (dated 2005 and later) downloaded from the internet by his wife which pertain to palm trees, see Respondents' Exhibit 20; and he stated that a marketing plan for the sale of palm trees has been developed, which was simply a goal of selling the trees after they were ten years old. He further stated that he intends to work the "farm" as a business full-time after retiring from his law practice. Finally, he presented the testimony of an agronomist who stated that clearing property, filling holes, smoothing land, and building an access road are normal agriculture activities. It is fair to infer from the record that Respondents' activities can be characterized as an avocation, not an occupation. Notably, there is no evidence that since they purchased the property in 1990, Respondents have sold any citrus fruit or a single palm tree. There is no evidence that dredging and filling in wetlands is a normal agriculture practice, or that it is consistent with the practice of horticulture, including the growing of exotic palm trees. Mr. Molica's agronomist acknowledged that he has never been associated with an application to conduct agricultural or horticultural activities that involve the filling of wetlands. Moreover, extensive dredging, filling, and removal of vegetation were not necessary to accommodate the small area on which the potted plants sit. The more persuasive evidence supports a finding that the topographic alterations on the property are not consistent with the practice of agriculture. The evidence shows that the filling on the property has obstructed the natural flow of surface water. More than likely, the filling of the wetlands was for the predominant purpose of obstructing and diverting surface water that flowed south from the Lacano property, and not for the purpose of enhancing horticultural productivity. Corrective Actions At hearing, the District submitted certain revisions to the proposed corrective action, which are described in District Exhibit 73. The revisions provide greater specificity regarding the formulation of a restoration plan and who must be involved in formulating that plan. In general terms, the corrective action offers Respondents the option of seeking an after-the-fact permit or restoring the wetlands. Respondents offered no proof at hearing that the original or revised corrective action is unreasonable. The revised corrective action is found to be reasonable and designed to address the restoration needs of the property and is hereby approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the charges in the Complaint, requiring Respondents to take the corrective actions described in District Exhibit 73, and determining that Respondents are not entitled to an agricultural exemption under Section 373.406(2), Florida Statutes. DONE AND RECOMMENDED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 12th day of June, 2009.
The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . .. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 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 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue The issue in this case is whether the Petition to Contract the Tampa Palms Open Space and Transportation Community District should be granted.
Conclusions Section 190.046(1), Fla. Stat. (1995), provides for the filing of a petition for contraction of a community development district under the provisions of Section 190.005. Under paragraphs (f) and (g) of Section 190.046(1), petitions to contract a CDD by 2,357 acres “must be considered petitions to establish a new district and shall follow all of the procedures specified in s. 190.005.” Under Section 190.005(1)(e), Fla. Stat. (Supp. 1996), the Florida Land and Water Adjudicatory Commission (FLAWAC) must consider the following factors in determining whether to grant or deny a petition for the establishment of a CDD: Whether all statements contained within the petition have been found to be true and correct. Whether the creation of the district is inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Whether the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. Whether the community development services and facilities will be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special- district government. Factor 1 In this case, all statements contained within the petition for contraction have been found to be true and correct. However, as found, the petition for contraction does not contain the written consent of the owners of all of the real property to be included in the new TPOSTCDD, after contraction; nor was there any documentation or other evidence demonstrating that either the TPOSTCDD or those giving their written consent to the contraction have control by deed, trust agreement, contract, or option of 100 percent of the real property to be included in the new TPOSTCDD, after contraction. Section 190.005(1)(a)2, Fla. Stat. (Supp. 1996), requires that a petition for establishment of a CDD contain the written consent of the owners of all of the real property to be included in the proposed CDD, or documentation demonstrating that the petitioner has control by deed, trust agreement, contract, or option of 100 percent of the real property to be included in the proposed CDD. (Section 190.046(1)(e), Fla. Stat. (1995), requires the written consent of all landowners whose land is being deleted through contraction, but paragraphs (f)-(g) of Section 190.046(1) would appear to require the petition to contract in this case follow all of the procedures specified in s. 190.005, including the requirement of Section 190.005(1)(a)2, Fla. Stat. (Supp. 1996).) It is noted that the petition for contraction in this case contains an economic impact statement that not only contains a statement of estimated regulatory costs in accordance with Section 120.541, Fla. Stat. (Supp. 1996), but also contains several other estimates of economic impact, in accordance with Section 120.54(2), Fla. Stat. (1995). Factor 2 It was found, supra, that the creation of the proposed TPOSTCDD, after contraction, is consistent with applicable elements and portions of the state comprehensive plan and the effective local government comprehensive plans. Factor 3 It was found, supra, that the proposed TPOSTCDD, after contraction, will be of sufficient size, sufficiently compact, and sufficiently contiguous to be developable as one functional interrelated community. Factor 4 The evidence in this case was that, due to the existence of the major infrastructure along the spine of County Road 581, and the ownership of Areas 4 and 8 by a different developer, contraction of the TPOSTCDD by deletion of Areas 4 and 8 will have no adverse impact on the issue whether the proposed TPOSTCDD, after contraction, is the best alternative available for delivering community development services and facilities to the area that will be served by it. It was found in the Recommended Order and Report in DOAH Case Number 89-3654 that the existing TPOSTCDD is the best alternative available for delivering community development services and facilities to the area that is served by it. Presumably, that finding supported the adoption of F.A.C. Rules Chapter 42J-1, which created the existing TPOSTCDD on January 31, 1990. Using the legal principle of res judicata, it can be deduced that, since contraction will have no adverse impact on this issue, the proposed TPOSTCDD, after contraction, still is the best alternative available. Factor 5 It was found, supra, that the proposed TPOSTCDD, after contraction, will be compatible with the capacity and uses of existing local and regional community development services and facilities. Factor 6 It also can be deduced, using the legal principle of res judicata, that the area that will be served by the proposed TPOSTCDD, after contraction, still will be amenable to separate special-district government. The Recommended Order and Report in DOAH Case Number 89-3654 found that the existing TPOSTCDD would be amenable to separate special-district government. Since the evidence in this case was that contraction will have no adverse impact on this issue, it can be concluded that the proposed TPOSTCDD, after contraction, still will be amenable to separate special-district government. REPORT AND CONCLUSIONS SUBMITTED this 29th day of January, 1997, at Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1997. APPENDICES APPENDIX A In accordance with F.A.C. Rule 42-1.013(1) and (4), the following is a list of the names and addresses of the witnesses and the findings which their testimony helped support: L.A. “Art” Woodworth, Jr. President, Florida Technical Services Nicholas Pointe Office Park 522 West Bearss Avenue Tampa, Florida 33613 Findings 3-6, 8, 15-18 Susan Johnson DRI and Subdivision Coordinator City of Tampa Tampa, Florida Findings 14, 15, 16 William J. Rizzetta Rizzetta & Company 3550 BuschWood Park Drive, Suite 135 Tampa, Florida 33618 Findings 5-6, 10-13, 15-18 Charles E. Cook, P.E. Vice-President, Land Division Lennar Homes, Inc. 1110 Douglas Avenue, Suite 2040 Altamonte Springs, Florida 32714 Findings 3,6, 9 APPENDIX B In accordance with F.A.C. Rule 42-1.013(2), the following is a list of the attached documentary evidence: Petitioner’s Exhibit 1 - Receipt from “Florida Administrative Weekly” and Affidavit from “The Tampa Tribune” Petitioner’s Exhibit 2 - Resume’ of L.A. “Art” Woodworth, Jr. Petitioner’s Exhibit 3 - Area Map Petitioner’s Exhibit 4 - Letter from Susan Johnson Petitioner’s Exhibit 5 - Company Profile, Rizzetta & Company, March, 1996 Petitioner’s Exhibit 6 - Economic Impact Statement COPIES FURNISHED: Bob Bradley, Secretary Florida Land & Water Adjudicatory Commission Exec. Office of the Governor 1601 Capitol Tallahassee, FL 32399 Gregory Smith, Esquire Florida Land & Water Adjudicatory Commission Exec. Office of the Governor 209 Capitol Tallahassee, FL 32399-0001 Scott I. Steady, Esquire Williams Reed Weinstein Schifino & Mangione, P.A. Post Office Box 380 Tampa, FL 33602
The Issue Whether the respondent is indebted to the complainant for the sale of Florida-grown agricultural products, and, if so, the amount of the indebtedness.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Rose has a grove of lychee trees on his property; each year he harvests the lychee nuts for sale, but the sale of agricultural products is not his sole source of income. In mid-June, 1996, Mr. Rose heard that the Growers Association was offering $3.50 per pound for lychees, the highest price of which he was aware. Mr. Rose took his fruit to the Growers Association on June 18, 1996. Mr. Rose had not done business with the Growers Association previously but had sold his fruit to another company. Mr. Rose received a grower's receipt showing that, on June 18, 1996, he had brought in 298 pounds of fruit, that 14 pounds were culls, and that the Growers Association had packed 27.9 ten- pound boxes of fruit. The Growers Association packed only marketable fruit. Ninety-nine percent of the tropical fruit grown in Florida is handled in pools.1 According to industry practice, the "handler" does not purchase the fruit outright but is responsible for packing, storing, selling, and shipping the fruit and for accounting for and remitting the proceeds of sale, minus expenses, to the members of the pool on a pro rata basis. The pools are composed of all growers whose fruit is packed during a designated period of time. Prices initially quoted to growers participating in a pooling arrangement are not guaranteed because the actual sales price may vary, depending on market conditions. It was the practice of the Growers Association to handle lychees under a pooling arrangement, and the receipt Mr. Rose received from the Growers Association contained the notation "P- 407LY," which designated the pool to which Mr. Rose's fruit was assigned. The Lychee P-407LY pool to which Mr. Rose's fruit was assigned consisted of fruit packed by the Growers Association between June 15 and 21, 1996. Mr. Rose was told on several occasions by employees of the Growers Association that he would receive $920.70 after expenses for the sale of his lychees. This amount was reflected in a Pool Price Report generated by the Growers Association on July 10, 1997, which also showed that a total of 107.6 pounds of fruit was included in the pool and that the Growers Association anticipated receiving a total of $4,088.65 for the sale of the fruit in the pool. The Growers Association maintained in its files a work order showing that 83 ten-pound boxes of lychees were sold to Produce Services of America, Inc., at a price of $38.00 per box and that the fruit was shipped on June 21, 1996. According to the July 10 report, the Growers Association had received payment of $932.90 for 24.55 ten-pound boxes of lychees sold to "L & V" on June 21, 1996, at $38.00 per box, but there is no indication in the report that the anticipated payment of $3,154.00 had been received from Produce Services of America. Mr. Rose repeatedly called the Growers Association during July and August to inquire about when he would receive payment for his fruit. In accordance with the information he had consistently been given by employees of the Growers Association, he expected to receive $920.70. When he received a check from the Growers Association dated August 29, 1996, in the amount of $367.48, he called the Growers Association for an explanation of why he had received that amount rather than the $920.70 he was expecting. Ultimately, he spoke with Mr. Kendall in early September, who told him that the $367.48 was all he was going to receive as his pro rata share of the pool because Produce Services of American had not paid in full for the 83 boxes of fruit it purchased. As reflected in the Pool Price Report dated September 19, 1996, the Growers Association received a total payment of only $1,847.42 for the fruit in the pool, rather than the $4,088.65 shown in the July 10, 1996, report. After the Growers Association's expenses were deducted, a total of $1,417.25 was distributed to the five growers in the pool. Although a copy of this final price report for the P-407LY pool should have accompanied Mr. Rose’s check, it did not. According to the information contained in the September 19 Pool Price Report, the shortfall in the amount received for the sale of the fruit in the pool is attributable to the Growers Association's receiving only $913.00, or $11.00 per box, for the sale of the 83 boxes of lychees to Produce Services of America, instead of the anticipated $3,154.00. The $913.00 was paid to the Growers Association by check dated August 19, 1996. Mr. Rose did not present sufficient evidence to establish that he had a contract for the outright sale of 27.9 ten-pound boxes of lychees to the Growers Association. Rather, the evidence establishes that Mr. Rose's fruit was handled by the Growers Association under a pooling arrangement and that, consistent with the practice in the tropical fruit industry, the Growers Association assumed responsibility for packing, storing, selling, and shipping the fruit. The Growers Association failed to offer any credible evidence to explain why Produce Services of America paid only $11.00 per box for the 83 boxes of fruit shipped from the pool, notwithstanding that the agreed sales price was $38.00 per box.2 Even if the fruit was damaged or in poor condition when it was delivered to Produce Services of America, the Growers Association packed 27.9 ten-pound boxes of marketable fruit on Mr. Rose’s account, and, once packed, it had complete control of the fruit in the pool. The Growers Association failed to offer any evidence to establish that it acted with reasonable care in fulfilling its responsibilities under the pool arrangement. Consequently, it bears the risk of loss rather than Mr. Rose and is indebted to him for $553.22, which is the difference between the $920.70 Mr. Rose would have received as his pro rata share of the pool had Produce Services of America paid the agreed-upon sales price of $38.00 per box and the $367.48 which the Growers Association paid to Mr. Rose by check dated August 29, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order finding that the South Florida Growers Association, Inc., is indebted to Mike Rose for the sale of agricultural products and ordering the South Florida Growers Association, Inc., to pay Mike Rose $553.22 within fifteen (15) days of the date its order becomes final. The Final Order should also provide that, in the event that the South Florida Growers Association, Inc., fails to pay Mike Rose $533.22 within the time specified, Aetna Casualty and Surety Company, as surety for the South Florida Growers Association, Inc., must provide payment under the conditions and provisions of its bond. DONE AND ENTERED this 10th day of April, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1997.
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
Findings Of Fact Based upon the evidence and testimony adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Proposed District will be located in an unincorporated area of central Palm Beach County within the boundaries set forth in the Amended Petition. It will encompass approximately 9,450 acres of land, including the 2,300 acre impoundment area that the State of Florida has an option to purchase. Irving Cowan, individually and as Trustee, Adrian R. Chapman, as Trustee of the A.R. Chapman Palm Beach Groves Trust, Marvin S. Savin and Elaine S. Savin, as general partners of Savin Groves, a Florida general partnership, and Petitioner, a Florida limited partnership, presently own 100 percent of the land to be included within the Proposed District. The property within the District is designated in the Palm Beach County Comprehensive Plan Land Use Element as either Agricultural Production or Rural Residential The land within the Proposed District is located entirely within the boundaries of an inactive unit of development of the ITWCD. Consequently, the owners of the land neither pay taxes to, nor receive benefits from, the ITWCD. Most of the land is currently used for growing citrus fruit. Those areas which do not have citrus groves are used to support grove operations. It is the present intent of the landowners to continue to use the land for such agricultural purposes. The purposes and functions of the ITWCD and the Proposed District will be significantly different. The ITWCD is primarily concerned with providing drainage to an urbanizing, residential area with a "one By contrast, the Proposed District will operate a "two-way" drainage and irrigation system designed for the benefit of active agricultural production. The ITWCD and the Proposed District will be able to operate independently within their respective areas of responsibility. The creation of the Proposed District will have no adverse impact upon the ITWCD. On July 27, 1992, the Board of Supervisors of the ITWCD unanimously adopted a Resolution in support of the establishment of the Proposed District. The existing infrastructure within the Proposed District consists of roadways, drainage and irrigation facilities, pumping stations, and culverts connecting with the L District. There are no existing water mains or existing sewer facilities. Among the potential improvements to the existing infrastructure which could be undertaken by the Proposed District are the construction of central pumping stations to replace the many individual pumps operated by the several property owners within the Proposed District, and the replacement of the outfall structures into the L-8 canal. In addition, the Proposed District could engage in roadway construction and surfacing of the main fruit hauling routes within the District. 4/ The Proposed District provides the best possible mechanism for financing and implementing these improvements. Of the various alternatives in providing infrastructure services for the community, a community development district is superior to any other alternative, including a municipal service taxing unit, the County or a homeowners' association. This is because neither the County nor a municipal service taxing unit would be as responsive to the Proposed District's landowners as would be the Proposed District and because a homeowners' association would be hindered by reason of its inability to issue bonds or effectively collect property assessments. Centralized ownership, management and control of the Proposed District's infrastructure is more efficient and less costly than the current arrangement. Consequently, the establishment of the Proposed District will increase the likelihood that the land within its boundaries will continue to be used for agricultural purposes. The District will be empowered to issue bonds, levy ad valorem taxes and special assessments, and impose user fees and charges. To defray the costs of operation and maintenance of the infrastructure, the District will utilize a variety of taxes, assessments and user charges tailored to the service involved so as to minimize costs while insuring that only those who receive the benefits from a facility pay the costs involved. Ultimate Findings All statements contained in the Amended Petition, including those contained in the economic impact statement, are true and correct. The creation of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or of the Palm Beach County Comprehensive Plan. The land within the Proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as a functional interrelated community. The Proposed District is the best alternative for delivering community development services and facilities to the area that will be served by the District. The community development services and facilities of the Proposed District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area that will be served by the Proposed District is amenable to separate special-district government.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that FLWAC enter a final order granting Petitioner's Amended Petition to establish the Cypress Grove Community Development District by rulemaking pursuant to Chapter 190, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of June, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1993.
The Issue Whether petitioner has standing to request consent of use of marine bottoms? Whether the site in question lies within the John Pennekamp Coral Reef State Park? Whether petitioner's application for consent to dredge in two places east of Angelfish Creek should be granted, under Chapters 253 and 258, Florida Statutes (1989) and Chapters 16D and 18-21, Florida Administrative Code?
Findings Of Fact Angelfish Creek in Monroe County runs virtually due east from Card Sound (which opens into Biscayne Bay just north of Angelfish Creek) to Hawk Channel, which hugs the upper Florida Keys at the edge of the Atlantic Ocean. The "creek" or strait separates Key Largo and Angelfish Key on the south from Palo Alto Key to the north. Three flashing red lights and other navigational aids mark a channel traversing the saltwater pass between sound and ocean. Petitioner South Florida Waterways Improvement Foundation, Inc. (SFWIF) is a non-profit corporation owing its existence chiefly to John A. Bott, a public spirited boater known in some circles as the "king of luggage racks." T.134. Mr. Bott, whose home at the Ocean Reef Club fronts on Card Sound, (T.145), owns "a 63 Ocean Sports fisherman, a 22 Mako and a 16-foot dinghy." Id. He once ran aground in his big boat in the Angelfish Creek channel. Respondents are state agencies charged with managing state lands in general, including submerged lands like those underlying Angelfish Creek and further east where petitioner proposes to dredge; and state parks in particular, including the John Pennekamp Coral Reef State Park, a pioneering and world- renowned "underwater park," about whose northern boundary the parties are in dispute. Petitioner Named for Predecessor Boats navigated Angelfish Creek as early as March 13, 1945, the date of an aerial photograph received as petitioner's Exhibit No. 8. But Angelfish Creek was first dredged (T.154) only after the Army Corps of Engineers issued a permit in the wake of approval by Trustees of the Internal Improvement Trust Fund (Trustees) on March 12, 1968, approval which is reflected on page 469 of Volume 36 of the official minutes. Petitioner's Exhibit No. 10. After expiration of the original permit, a non-profit corporation, South Florida Waterways Improvement Foundation, Inc. (proto-SFWIF) applied for and received permission to dredge "190 cubic yards of material from an area [in the mouth or slightly easterly of Angelfish Creek] 350 feet long by 60 feet wide." T.159. On December 30, 1975, DER issued a dredging permit to proto- SFWIF. Petitioner's Exhibit No. 11. On January 22, 1976, the Army Corps of Engineers issued a permit to proto-SFWIF for the same project. Petitioner's Exhibit No. 13. After dredging took place as authorized, proto-SFWIF "was allowed to dissolve for failure to pay or failure to file the corporate annual reports." T.164. Proto-SFWIF paid for spoil it removed to uplands (which, when deposited, ceased to belong to it) but "did not [ever otherwise] own any property." T.164. After Mr. Bott engaged Tallahassee counsel, another non-profit corporation, petitioner SFWIF, was formed, in 1990. SFWIF owns no property in Monroe County, either. Mr. Bott and twelve other members of Key Largo's Ocean Reef Club, some of whose boats draw several feet, are members of SFWIF. Two were also members of proto-SFWIF, and at least one, Mr. Bott, owns waterfront property within a few miles of the proposed site. William J. Roberts, the lawyer who formed SFWIF, together with others in his office, serve as SFWIF's corporate officers. Park Boundaries The overwhelming weight of evidence adduced at hearing establishes that the site SFWIF proposes to dredge lies within the John Pennekamp Coral Reef State Park. When the then newly formed DER issued a dredging permit to proto- SFWIF, Petitioner's Exhibit No. 11, it did so on the mistaken assumption "that the project was not in an aquatic preserve, and . . . not within the boundaries of John Pennekamp Coral Reef State Park." T.162. (At the time, SFWIF, the petitioner in the present case, was not in existence. Nor did respondents make any representations directly to proto-SFWIF.) DER may have relied on advice from Jack W. Pierce, then an attorney for DNR, in his letter of August 18, 1975, which stated: "In my opinion, these rules would not affect the maintenance dredging on Angel Fish Creek as that is not on Key Largo." Petitioner's Exhibit No. 17. But, when expressly addressing the question of park boundaries, Mr. Pierce's letter stated simply that "the boundaries . . . are those set out in the Presidential Proclamation of 1960 plus those described as set forth in the Dedication of the Trustees dated September 21, 1967, . . . ." Petitioner's Exhibit No. 17. Successive Dedications On December 3, 1959, the Trustees dedicated "for park, recreational and preservation purposes, . . . [a] portion of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo." Petitioner's Exhibit No. 23. The Presidential Proclamation of 1960 stated similar federal intentions with respect to the same "portion of the outer Continental Shelf." Known as the Key Largo Coral Reef, this offshore tract has a perimeter of some 21 miles. The northern end of its landward edge lies slightly north (and three miles east) of the northernmost point of Key Largo. In describing the offshore dedication by metes and bounds, the Trustees put the northwesternmost point at "Can Buoy '21' (approximate Latitude 25o20'06" N., Longitude 80o12'36" W.) southeast of Old Rhodes Key." Id. Can Buoy "21" has since been lost. A new day marker, No. 23, has replaced it, although possibly at a slightly different point, viz.: Latitude 25o 20' 08.58967" N., Longitude 80o 12' 34.5983" W. T.419; Petitioner's Exhibit No. 22. The current marker is 2.58967 seconds (approximately 260 feet) north and 1.4017 seconds (less than 140 feet) east of what was described as the approximate location of Can Buoy "21" in 1959. If, as a witness testified is likely, the 1959 coordinates were rounded to the nearest tenth of a minute, the apparent discrepancy may be attributable to rounding. In any event, under no analysis advanced, would a difference of 295 feet (to take the hypotenuse) prove significant, for present purposes. T.336. In the dedication of 1959, the Trustees described the southern, as well as the northern, end of the western or landward edge of the original, offshore tract with some specificity. The southern end of the landward edge of the original offshore tract, also some three miles east of the island, lies south of the northern tip of Key Largo, but well north of the island's southern tip. The southern boundary of the original, offshore tract runs approximately east-west, while its northern boundary runs more or less southeast-northwest, as it reaches the northwestern corner. By the time the Trustees dedicated additional sovereignty lands on September 21, 1967, Key Largo Coral Reef had come to be known as John Pennekamp Coral Reef State Park. On that day, the Trustees added: Those submerged tidal bottom lands in the Atlantic Ocean lying between [what was then] the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo. Petitioner's Exhibit No. 24. While preserving to their owners "any riparian rights and interest," the Trustees extended the park landward from the original offshore tract to the shore of Key Largo, without, however, listing coordinates of latitude and longitude for the northernmost and southernmost points on shore. Lying Between The southern boundary of the original, offshore tract is on a line approximately perpendicular to Key Largo's Atlantic shoreline. Surveyors who have considered the problem apparently agree that extending the southern boundary of the original tract to the shore of Key Largo appropriately defines the southern edge of submerged lands lying "between" the island and the original, offshore tract. But the northern boundary of the offshore tract, if extended landward, would proceed northwesterly and come ashore somewhere on Rhodes Key, well north of the northernmost point of the offshore tract, and still further north of the northern tip of Key Largo. T.532. Before the present controversy arose, DNR engaged James Weidener, a professional land surveyor "to survey basically the Pennekamp Park and to provide boundary maps . . . and then as part of that to locate and monument both the north and south boundaries." T. 528. As part of this project, Mr. Weidener and others working with him conducted mean high water surveys at points along the eastern shore of Key Largo and extrapolated a boundary between state-owned bottom lands and uplands in private ownership. In locating the northernmost point on Key Largo, however, Mr. Weidener did not rely on a mean high water study. Instead he chose the northern edge of tidally washed mangroves or "the apparent edge of vegetation" (T.537) that extended probably 40 to 60 feet north of the mean high water line. Nothing in the record raised the possibility that the point he chose was more than 100 feet north of the mean high water line. By joining this point with marker No. 23, he defined the northern boundary of the submerged lands "between" Key Largo and the original tract. Even before the Weidener survey, a sign had been erected "only 30 or 40 feet off the line," (T.533) which the surveyors ultimately decided on. The piling holding the sign stands 34.45 feet off the line. Respondent's Exhibit No. 1. The north side of the sign "says entering Pennekamp State Park. On the south side it says entering Biscayne National Park." T.530-531. The line between the northernmost point on Key Largo and marker No. 23 is depicted as (A) in Appendix B to the recommended order. The site at which petitioner proposes to dredge lies south of the northerly boundary described in the Weidener survey and depicted as (A) in Appendix B. If a point 100 feet further south than the one Mr. Weidener identified as the northernmost point on Key Largo is connected to the marker, the resulting line lies well north of the proposed site. T.565. If a point 260 feet south of marker No. 23 is connected to a point 100 feet further south than the one identified by Mr. Weidener as the northern tip of Key Largo, the resulting line still lies north of the proposed site. The scaled drawing attached as Appendix B requires these inferences, although these variants of line (A) are not depicted there. Forensic Surveying In preparing for litigation in the present case, petitioner engaged a surveyor, George Cole, who assembled Petitioner's Exhibit No. 22. Citing "Hayes v. Bowman, Fla., 91 So.2d 795 and Bliss v. Kinsey, Fla. 233 So.2d 191," Petitioner's Exhibit No. 22, p. 2, Mr. Cole testified that "these cases suggest the best courses [sic] of action is one that's perpendicular to the channel out here if this indeed was a riparian rights case." T.344. But, since the Trustees took care, in expanding the park, to preserve to their owners "any riparian rights and interest," the location of the northerly boundary of the tract dedicated in 1967 has nothing to do with riparian rights; and lines (C) and (D) depicted in Appendix B have no support in the record, aside from Mr. Cole's unfounded speculation. Line (B) depicted in Appendix B, also proposed by Mr. Cole, reflects the same methodology Mr. Weidener employed (in the sense of joining a point on Key Largo to marker No.23), but proceeds on the assumption that the northernmost point on Key Largo of relevance is at the mouth of an inlet known as Pumpkin Creek. Mr. Cole conceded that "Key Largo does indeed go further to the north, but . . . [testified that] this portion up here is obscured and shielded from the Atlantic Ocean by Angelfish Key and this is Pumpkin Creek and various other creeks. These are distinct, discrete islands. They have their own land mass. They are not Key Largo." T.342-3. But Angelfish Key (and Little Angelfish Key) resemble El Radabob Key in this regard. El Radabob Key is the largest of the small islands lying alongside Key Largo in the Atlantic Ocean. All witnesses testifying on the point agreed that submerged land lying between Key Largo and El Radabob Key fell within the Trustees' 1967 dedication of "submerged land in . . . [the Atlantic Ocean including] the various inlets along the easterly coast of Key Largo." Similarly, as Key Largo tapers to a northern point, Angelfish Key and Little Angelfish Key lie on its Atlantic side, separated from it (and each other) by narrow, elongated inlets of the ocean. T. 535, 537. The submerged bottoms of these elongated inlets, no less than the submerged bottom lands in Key Largo Sound, comprise part of John Pennekamp Coral Reef State Park. Poorly Marked Although charts overstate the controlling depth, the channel in Angelfish Creek is already the best channel connecting the Atlantic Ocean to inland waters north of Snake Creek and south of Government Cut. Tavernier Creek to the south and Broad and Caesar Creeks to the north are also navigable by small craft. Of course, weather and low tides make navigation more difficult everywhere they have an effect. Depicting depths at mean low water, Respondents' Exhibit No. 2B maps the ocean bottom in the vicinity of markers Nos. 2A and 3A, including the eastern end of the channel petitioner seeks to widen. The two formations petitioner proposes to dredge aside, depths within the channel vary from 4.9 to 13 or 14 feet, at mean low water. The topographical survey features one-foot contours (between five and fifteen feet below mean low water) and reports hundreds of soundings. Respondents' Exhibit No. 2B. A shoal lies inside the channel about 15 feet from the southerly edge, some 30 feet easterly of green day marker No. 3A. In the worst spot, fossilized coral lies under only 3.5 feet of water at mean low tide. Boats run aground there as well as on another ledge of fossil coral on the other side of the channel, near marker No. 2A. At the latter site, Mr. H. R. Pender once measured the depth at five feet (T.125); and mean low water is shown at 5.4 feet. Whether dredging would actually increase boat traffic was not established, although dredging would permit the channel to handle more traffic. The narrower and more serpentine a channel becomes, the smaller the vessels it can accommodate. But traffic could be routed around these shoals by repositioning markers Nos. 2A and 3A, or by adding markers. Outside the channel opposite marker No. 2A is a deep hole; there is ample water into which to shift the channel. Opposite marker No. 3A outside the channel, depths at mean low water are as low as 5.6 feet. Although that is deeper than places in the mouth of the channel, it might be preferable simply to narrow the channel by moving marker No. 3A the few feet necessary to locate it channelward of the out-cropping of "fossil coral [or] calcium carbonate rock," (T.382) petitioner proposes to dredge. Environmental Effects The DER permit conditions specify turbidity screens, limit dredging to slack and incoming tides, and require deposition of spoil upland. Biota in the vicinity can withstand "spurts of turbidity," in any event. Tidal currents have scoured the channel, removing most fine particles, but intermittent northwesters flush slugs of particulate matter from Card Sound through Angelfish Creek. The project site is on the order of a mile from the nearest active coral reef in the park, but a few small colonies of coral, both hard and soft (gorgonian) grow where petitioner proposes to dredge, as do algae, marine grasses, and perhaps other alcyonarians. Dredging would displace these individuals but create a new and deeper hard substrate for colonization by like organisms. A representative of DER is to help pick which fossil coral to remove. Marine life, if established at a greater depth, would less likely suffer interference from boats' 60- to 100-feet long running aground. Petitioner's Exhibit No. 14. Groundings entail the risk of fuel spills. Traces of presumably toxic bottom paint have been found on fossil coral near the surface. But these hazards would also be greatly reduced if markers Nos. 2A and 3A were repositioned, or additional markers placed, to mark the outcroppings, so boaters could avoid them.
Recommendation It is, accordingly recommended: That respondents deny petitioner's application for consent to dredge. That respondents specifically initiate relocation of markers Nos. 2A and 3A or take other steps to mark the channel appropriately. RECOMMENDED this 13th day of November, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1991. APPENDIX A TO RECOMMENDED ORDER, CASE NO. 90-4285 Petitioner's proposed findings of fact Nos. 1, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, 26, 29, 31, 34, 35, 42, 43, 44, 45, 46, 47, 48, 49, 51, 52, 56, 57, 78, 80, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95 and 97 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 2, 3, 4, 5, 58, 59, 60 and 71 are immaterial. With respect to petitioner's proposed finding of fact No. 12, no causal connection between the letter and the permit was proven. With respect to petitioner's proposed finding of fact No. 18, the owner's testimony was largely hearsay. With respect to petitioner's proposed finding of fact No. 21, the shallows are a hazard on account of the markers' location. With respect to petitioner's proposed finding of fact No. 27, the adequacy of the width would depend on the vessel. With respect to petitioner's proposed finding of fact No. 28, no fatality occurred from grounding. With respect to petitioner's proposed finding of fact Nos. 30 and 32, see finding of fact No. 24. With respect to petitioner's proposed finding of fact No. 33, such an event blocked the channel for "another large vessel." T.38. With respect to petitioner's proposed finding of fact No. 36, Mr. Bott had only one grounding. Petitioner's proposed finding of fact No. 37 has been adopted, in substance, but proto-SWFIF is now defunct. With respect to petitioner's proposed finding of fact No. 38, a new corporation was organized. With respect to petitioner's proposed finding of fact No. 39, at least one nonprofit corporation obtained such permits. Petitioner's proposed findings of fact Nos. 40, 50, 70, 74 and 76 have been rejected. With respect to petitioner's proposed finding of fact No. 41, while apparently accurate, the proposed finding is not supported by the citation to the record. With respect to petitioner's proposed findings of fact Nos. 53 and 73, the evidence showed that the new marker was likely at the same spot as the old. Petitioner's proposed findings of fact Nos. 54, 55, 72, 75 and 77 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 79, the effect of possibly increased traffic in larger vessels was not considered. With respect to petitioner's proposed finding of fact No. 81, the testimony was "on the order of" a mile. Petitioner's proposed finding of fact No. 96 so-called is actually a proposed conclusion of law. With respect to petitioner's proposed findings of fact Nos. 98 and 99, the proposed dredging is contrary to administrative rules which, at least in the absence of a rule challenge, express public policy definitively. Respondents' proposed findings of fact were not separately numbered, but have been addressed, in substance, in the findings of fact. APPENDIX B TO RECOMMENDED ORDER, CASE NO. 90-4285 (From Petitioner's Exhibit No. 22) COPIES FURNISHED: Robert A. Routa, Esquire P.O. Drawer 6506 Tallahassee, FL 32314-6506 Brian F. McGrail, Esquire John W. Corrigan, Esquire 3900 Commonwealth Blvd., MS-35 Tallahassee, FL 32399-3000 Ken Plante, General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-0300 Tom Gardner, Exec. Director Department of Natural Resources 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-0300
