The Issue The issue is whether Petitioner is entitled to additional compensation for fishing nets that he sold to the State of Florida under the Net Buy-Back Program.
Findings Of Fact Petitioner is a commercial fishers who is an affected person under the Florida Net Ban, which is set forth in the Florida Constitution, Article X, Section 16. Section 370.0805(5), Florida Statutes, which became effective on July 1, 1995, establishes the Net Buy-Back Program. The program enables eligible persons previously engaged in the commercial fishing industry to sell fishing nets to the State of Florida. The Legislature appropriated $20 million to the Seafood Workers Economic Assistance Account (the Account) to fund the payments authorized in Section 370.0805, as well as agency expenses in administering the program. Section 370.0805(3)(b) directs Respondent to purchase nets "according to the availability of funds on a first-come, first-served basis determined by the date of receipt of each completed application." By Net Buy-Back Application signed on July 5, 1995, and filed with Respondent on the same day, Petitioner applied to sell nets to the State of Florida. His application form is completely filled out and shows two saltwater-product license numbers, one for an individual and one for a vessel. The application form calls for the applicant to list the "TOTAL NUMBER OF YARDS OF EACH NET TYPE THAT YOU INTEND TO SELL." The form lists five categories of nets: gill (49 meshes or less); gill (50 meshes or more); beach, purse, seine; trawl; and trammel. The former gill net is a shallow-water gill net. The latter gill net is a deepwater gill net. Petitioner listed on his application 800 yards of shallow-water gill nets, 4600 yards of deepwater gill nets, two trawls, and 600 yards of trammel nets. After checking a data base maintained by the Department of Environmental Protection, Respondent found only one of Petitioner's two listed saltwater-product licenses. Respondent thus processed Petitioner's application as though he had only one license. By letter dated August 8, 1995, Respondent advised Petitioner that he was eligible "to receive compensation for 8 nets" and set an appointment for him to turn in the nets on September 6, 1995. On September 6, 1995, Petitioner appeared at the appointed site with nets to sell to the State of Florida. He delivered 4800 yards of seine nets, for which he received a voucher for $27,998.40. Prior to paying the voucher, Respondent discovered that the Account might be exhausted before Respondent had paid for all of the nets that fishers might lawfully seek to sell to the State. Respondent thus dishonored Petitioner's voucher, as well as the vouchers held by numerous other fishers, while Respondent considered changes in its administration of the program. The purpose of the Net Buy-Back Program, as provided by Section 370.0805(5)(a), Florida Statutes, was to allow, "[a]ll commercial saltwater products licensees and persons holding a resident commercial fishing license" to apply to Respondent "to receive economic assistance to compensate them for nets rendered illegal or useless by the constitutional limitation on marine net fishing." The emphasis was on economic assistance. Section 370.0805(5)(a) authorizes Respondent to make payments only "in nonnegotiable amounts not intended to reflect the actual value of the nets." Section 370.0805(5)(a) assigns payment amounts of $3500 for beach, purse, or seine nets of at least 600 yards in length; $500 for trawls and shallow-water gill nets of at least 600 yards in length; and $1000 for trammel nets of at least 600 yards in length and deepwater gill nets of at least 600 yards in length. Section 370.0805(5)(a) states that, except for trawls, nets of less than 600 yards in length shall be "valued proportionately." Section 370.0805(5)(c) limits the number of nets that a commercial fishers could sell, based on his annual earnings from the sale of eligible saltwater products. The limits range from four nets, for licensees whose annual earnings average from $2500 to $4999 in earnings, to ten nets, for licensees whose annual earnings average more than $30,000. Respondent relied on another data base from the Department of Environmental Protection to determine the average yearly earnings of applicants. The Department of Environmental Protection maintains records of each licensee's trip tickets, which disclose earnings. The only other limit in the statute as to the type and number of nets to be purchased is that, under Section 370.0805(5)(d), "[n]o licensee may be paid for more than two. . . trawls." Respondent reviewed the applications that it received from the initial 951 fishers who filed applications. This was a large majority of the 1104 fishers who would eventually sell their nets to the State under the Net Buy-Back Program. The purpose of the review was to determine whether the funds in the Account would be sufficient to cover the nets that the State was to be purchasing. Respondent found from the applications that seine nets represented only about five percent of the nets that fishers intended to sell to the State. Relying on this information, Respondent calculated the potential encumbrance of $6.5 million on the Account, based on an average payment of $1000 per net. Applications contained few seine nets because commercial fishers initially resisted selling their best nets to the State of Florida. The Net Buy-Back Program provided for payment of only $3500 per seine net, even though many seine nets were worth $10,000. And commercial fishers were optimistic at first that their legal challenges to the constitutional amendment would succeed. Applying liberal eligibility criteria, such as calculating the number of nets that each applicant could sell based on the number of licenses that he held, Respondent raised its estimate of the potential encumbrance to $8.775 million. But in recalculating the potential encumbrance on the Account, Respondent still assumed that the average payment per net would be $1000. Respondent began receiving nets on August 3, 1995. Through the first three weeks of August, Respondent purchased seine nets in roughly the same five-percent mix that it had used in calculating the potential encumbrances on the Account. After this point, however, fishers started turning in much larger numbers of seine nets than they had listed in their applications. During this first phase of the program, Respondent paid fishers for whatever types of nets they presented at their net buy-back appointment. Respondent would pay a fishers entitled to sell eight nets for seine nets if he turned in seine nets, even though he had listed only gill nets on his application. This policy jeopardized the solvency of the Account because the payments to fishers turning in all seine nets were 3.5 times greater than the figures that Respondent had used in calculating the potential encumbrance on the Account. From the fishers's perspective, the program acquired an element of chance, as applicants with earlier appointment times-which did not necessarily correspond with earlier-filed applications-netted fine catches of economic assistance at the expense of their counterparts, upon whom destiny had bestowed later appointment times. By late August, the applicants, less sanguine about their litigation prospects (as the fishers suggest) and more inventive in recasting old gill nets as seine nets (as Respondent suggests), began turning in seine nets in large numbers, so that Respondent was purchasing nearly all seine nets. Eventually, the cumulative effect of this trend raised the total mix of seines purchased from five percent, during the first three weeks, to sixty percent. After a brief period of trying to stay the course, Respondent decided on September 6, 1995, that it had to take action or else the Account would be exhausted before the State had purchased all of the nets listed on the applications. Respondent immediately suspended further payments on issued vouchers and applied new criteria to persons holding unpaid vouchers, as well as to applicants who had not yet received vouchers. This action stopped payment on all vouchers issued from around August 28 through September 6. At the time that it stopped payment on outstanding vouchers, Respondent had approved the purchase of nets from about 750 fishers. About 450 of these applicants received their money prior to the suspension of payments, leaving about 300 applicants, including Petitioner, holding worthless vouchers. However, a large number of the 450 applicants who were actually paid for their nets prior to September 6 sold a relatively large percentage of gill nets rather than seine nets. As of September 6 (retroactive to August 28), Respondent began the second phase of the Net Buy-Back Program. In this phase, Respondent paid for seine nets, but only up to the greater of the number of seines shown on the application or the number of seines based on past use of seines. Respondent determined the latter figure from the trip tickets, which also contained information as to types of catch, from which Respondent could infer the type of net used. As in the first phase, Respondent continued to insist the fishers turn in seines if they were being paid for seines. The 300 fishers holding dishonored vouchers filed a class action suit. Petitioner's voucher for his first eight nets was covered in this legal action and is not the subject of this case. Petitioner received slightly more than $10,000 on his claim for about $28,000. In the meantime, Respondent discovered that Petitioner in fact held two licenses, as he had represented on his application. By letter dated October 5, 1995, Respondent advised Petitioner that it had reconsidered his application and determined that he had the right to sell 16 nets, not eight nets, but none could be a seine net. Respondent issued Petitioner a new voucher for these additional eight nets. This voucher is in the amount of $7996.80 for 4800 yards of deepwater gill net. On October 13, 1995, Petitioner turned in eight nets and received his money. Petitioner's application lists no seine nets. His application, as noted above, lists one and one-third shallow- water gill nets (i.e., 800 yards), eight deepwater gill nets, two trawls, and one trammel net. Petitioner claimed that he turned in seine nets. If turned in during the first or second phase of the program, Respondent would have treated these nets as seine nets. But it is Petitioner's unique fortune to have been intimately involved with all three phases of the Net Buy-Back Program. Evidently dissatisfied with the effects of the restrictions introduced by the second phase of the program, Respondent added a third phase by promulgating an emergency rule defining "seine nets," effective October 2, 1995. This third phase, which did not change Respondent's policy of paying for the greater number of seines as shown on the application or the trip tickets, restricted the kinds of nets that fishers could turn in as seine nets. Rule 38BER95-1 provides that, for the purpose of "the implementation of the Net Buy-Back Program" described in Section 370.0805(5): "Gill net" means a wall of netting suspended vertically in the water, with floats across the upper margin and weights along the bottom margin which captures fish by entangling them in the meshes, usually by the gills. Any net offered for the net buy- back program that consists of at least fifty- one percent (51 percent) gill net, shall be considered a gill net. "Seine" means a small-meshed net suspended vertically in the water, with floats along the top margin and weights along the bottom margin, which encloses and concentrates fish, and does not entangle them in the meshes. No net offered for the net buy-back program shall be considered a seine if the wings are composed of entangling mesh. * * * THIS RULE SHALL TAKE EFFECT IMMEDIATELY UPON BEING FILED WITH THE DEPARTMENT OF STATE. Effective Date: October 2, 1995 Under the emergency rule, Respondent's nets were not seines, but were gill nets because they were at least 51 percent, by area, gill net. At the time of the final hearing, Respondent estimates that the Account balance is about $300,000 with about 160 contested claims remaining to be resolved.
Recommendation It is RECOMMENDED that the Department of Labor and Employment Security enter a final order dismissing the petition for additional payment from the Account. ENTERED on October 3rd, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this October 3rd, 1996. COPIES FURNISHED: Secretary Douglas L. Jamerson Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion General Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 John Wayde Campbell 1103 67th Street Northwest Bradenton, Florida 34209 Louise T. Sadler Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
Findings Of Fact Harbor Course South is a one hundred and seventy two lot real estate development which is a portion of the Ocean Reef Club located at the extreme northern end of Key Largo, Monroe County, Florida. The Harbor Course South property was acquired in approximately 1964 along with over 1200 acres of adjoining property for approximately 1.5 million dollars. Driscoll Properties, Inc. ("Driscoll"), a Florida Corporation, is the developer of Harbor Course South. Driscoll Foundation, Inc., (the "Foundation") is a non-profit Florida corporation which owns a portion of the Harbor Course South property. (Driscoll and the Foundation are collectively referred to as the "Intervenors" or the "Permittees.") The Ocean Reef Club is a one thousand two hundred unit development encompassing approximately eight hundred acres including at least two eighteen hole golf courses, a marina and an air strip. Nine holes of golf are located in Harbor Course South. These nine holes were leased to the Ocean Reef Club in 1974-1975 pursuant to an agreement providing for creation of golf course lots and lake-front lots in Harbor Course South. The nine holes of the golf course located in Harbor Course South were in place by at least 1978 and have been in use since that time. In order to install those nine holes, some roads were cut through the property and the lakes were dredged. Thirty-eight of the one hundred and seventy-two lots in Harbor Course South were originally platted in 1978 or 1979. These thirty eight lots are referred to as Section 1 of Harbor Course South. All of lots in Section 1 have been sold to individual purchasers for an average price of $34,210.00 per lot. The thirty-eight lots in Section 1 were all sold prior to 1988. In approximately 1979, some roads were cleared and paved on the Harbor Course South property in order to provide access to the thirty-eight originally platted lots in Section 1. A number of the lots in Section 1 have been permitted for construction by Monroe County and houses have been constructed on several of them. No individual lot owner in Section 1 has been denied a permit for clearing at least some of his land for a homesite. Both the United States Fish and Wildlife Services ("U.S.F.W.S.") and the Florida Game and Fresh Water Fish Commission (the "Commission") have determined that the clearing and/or development of the lots in Section 1 will not require permits for the taking of endangered or threatened species or their nests. In 1985, the Intervenors, in conjunction with the Ocean Reef Club, sought a determination as to the extent of their vested development rights with respect to the Harbor Course South property by initiating a vested rights hearing before Monroe County. These proceedings were initiated under Chapters 380 and 120, Florida Statutes and resulted in a Joint Stipulation on February 23, 1988 recognizing that the Intervenors have vested rights to develop the Harbor Course South plats. (The Joint Stipulation is referred to as the "Vested Rights Determination.") The Vested Rights Determination recognized that the Intervenors and the Ocean Reef Club had incurred obligations and expenditures based upon the approval of the master plan for development of Ocean Reef in 1977 in accordance with the then-existing regulations of Monroe County. The expenses and improvements upon the property included the construction of roadways, water main extensions, medical facilities, and golf courses. As a result of these expenditures, the Vested Rights Determination established that the Intervenors were authorized to continue development under the master development plan for the Ocean Reef Club, notwithstanding the enactment of a comprehensive land use plan and development regulations by Monroe County on September 15, 1986. No appeal of the Vested Rights Determination was filed by the Florida Department of Community Affairs or any other party. The remaining one hundred thirty-four lots in Harbor Course South were subdivided into three plats in 1986. These plats have been designated Ocean Reef Plat Numbers 17, 18 and 19 (also referred to as Sections 2, 3 and 4 respectively of Harbor Course South.) The Intervenors were not required to obtain a permit from the U.S.F.W.S. or the Commission prior to subdividing and/or selling lots of the Harbor Course South property. Most of the infrastructure for development of Plats 17, 18 and 19 is in place. Paved roads were completed in 1987-1988. The electrical lines and sewer lines are in place and operational in all three plats. The water lines are in place and connected in Plat 17. The waterlines are also in place, but not connected, in Plats 18 and 19. The total area of Sections 2, 3 and 4 of Harbor Course South is 134.09 acres. The remaining one hundred thirty-four lots occupy approximately 53.66 acres of this total. The lots in the area are priced at an average of $127,000 each. The Intervenors have begun selling the lots in Plat 17 (Section 2 of Harbor Course South). This plat consists of twenty-five lots. No competent substantial evidence was offered to establish the exact number of lots sold or houses constructed in this area, but it appears that ten to twelve lots were sold between July 1, 1989 and December 13, 1989. At least one house has been constructed on this plat and three building permits are pending before Monroe County. Prior to selling the lots in Plat 17, the Intervenors reached an informal agreement with the U.S.F.W.S. and the Commission as discussed in more detail in Findings of Fact 33 below. In accordance with that agreement and because there was no indication of the presence of endangered or threatened species on these lots, it was determined that none of the lots sold in Plat 17 would require the issuance of a permit from the Commission before land clearing could take place. The sales of the lots in Plat 17 were not completed until after the issuance of a Proposed Permit by the Commission for the "incidental taking" of endangered and threatened species with respect to the entire Harbor Course Property. (This Proposed Permit is discussed in more detail in Findings of Fact 44.) After the Proposed Permit was issued and this challenge was filed, the titles to the lots sold in Plat 17 were transferred to the purchasers. As indicated above, some of these lot owners have proceeded with the development of their property without the need of a permit from the U.S.F.W.S. or the Commission. None of the lots in Plats 18 and 19 (Sections 3 and 4) have yet been offered for sale. The natural vegetation of North Key Largo, including the Harbor Course South property, consists largely of tropical hardwood hammock. The quality of the vegetation varies widely throughout the area. Development of the Ocean Reef Club has largely supplanted the hardwood hammock in that area. The golf course which is located on the Harbor Course South property was placed in the midst of the hammock. The golf course and the infrastructure for development of Harbor Course South have fragmented the hammock in Plats 17, 18 and 19. The hardwood hammock of North Key Largo is a unigue flora to North America, being extremely tropical in character. It is characterized by vegetation more commonly found on the tropical islands of the Carribean and is different from the tropical hammocks of mainland South Florida because of a difference in hydrology, i.e., the Florida Keys are substantially drier and have a lower water table. The hammock of North Key Largo has a very high species diversity with one hundred and five species of trees and shrubs and fifteen species of woody vines in the hammock vegetation. The ecology of a hardwood hammock is cyclical. Over the years, the hammock has demonstrated its ability to regenerate naturally. Thus, while much of North Key Largo was used as agriculture land in the late nineteenth and early part of the twentieth century, the hammock has recovered in those areas where it has been allowed to naturally regenerate. The species of plants in the hardwood hammock are well-adopted for colonizing. The trees are "good at getting their seeds into places where they will grow." Many of the species of hammock trees and shrubs have fruits that are attractive to birds and some animals such as raccoons. These animals, birds, and raccoons eat the fruit, do not digest the seeds, but pass them in their fecal material which helps spread the vegetation. Tree growth in a young hammock is initially rapidly vertical before spreading out to provide larger coverage. A mature hammock provides a "closed canopy" of branches which affords protection and transportation for many animals including woodrats and cotton mice. As the hammock matures, there is an accumulation of humis and leaf litter on the ground beneath the trees. This humis layer serves as a seed bed for new growth and accumulates over the years. The humis layer is an important factor in assessing the quality of a hammock as habitat for endangered species. It takes decades for a hammock to fully mature to the point that it provides habitat and food sources for woodrats and similar creatures. Because of the biological richness of the hardwood hammock, as well as to protect the off-shore coral reefs from the detrimental effects of run-off from development, the State of Florida, through the Conservation and Recreational Land Acquisition program, ("CARL") has designated much of area of North Key Largo at the top of the acquisition priority list. The area slated for acquisition under the CARL program extends approximately twelve miles from the point where U.S. Highway 1 enters Key Largo northeastward to the southern boundary of Harbor Course South. The State of Florida has already acquired large tracks of North Key Largo under the CARL program. These tracks include a large portion of the land on the east side of State Road 905 from Port Bougainville to the southern border of the Ocean Reef Club (Harbor Course South.) Moreover, the Foundation is currently negotiating with the State regarding the acquisition of approxiately twelve hundred acres immediately adjacent to Harbor Course South. The federal government has established the Crocodile Lake National Wildlife Refuge which embraces most of the land lying west of State Road 905 from Card Sound Road (near and west of the Ocean Reef Club) south to Lake Surprise, a distance of approximately twelve miles. In sum, a large portion of the property in North Key Largo outside the Ocean Reef Club and Harbor Course South does not have vested development rights. A vast majority of this property is, or will likely become in the near future, publicly owned for conservation purposes. Thus, large quantities of high quality tropical hardwood hammock habitat have been, or are in the process of being, acquired in the immediate vicinity of the Harbor Course South property. The hardwood hammocks of North Key Largo are inhabited by certain endangered and threatened species. The Commission has the authority to determine endangered species within the area of its jurisdiction under the Endangered Species Act of 1973, 35 U.S.C.A. 1531, et seq. The Key Largo woodrat (neotoma floridana smalli) and the Key Largo cotton mouse (peromystus gossypinus allapaticola) are animals which can be found in the secondary growth and mature tropical hardwood forests of North Key Largo. Both the woodrat and cotton mouse as well as the Schaus' swallowtail butterfly (heraclides aristodemus ponceana,) have been listed as endangered species in Rule 39-27.003, Florida Administrative Code. The hardwood hammock of North Key Largo also serves as a habitat for the Eastern Indigo snake (drymarchon corais couperi), which has been listed as a threatened species by the Commission pursuant to Rule 39-27.004, Florida Administrative Code. Rock piles, tree roots, mounds, piles of sticks, holes in the rock substrate, holes in the humis layer beneath the trees and similar hiding areas all serve as nests or "refugia" for the woodrat. A mature hammock provides an ideal habitat for the woodrat. Destruction of the habitat of the woodrat has been a key factor in the woodrat becoming an endangered species. The Key Largo cotton mouse occupies much of the same habitat as the woodrat. Although the density of the population has not been established, there is no dispute that some portions of the Harbor Course South property are populated with woodrats and cotton mice. The quality of the habitat varies significantly throughout the property. There is only limited evidence of the presence of the Schaus' swallowtail butterfly on the Harbor Course South property. There have been a few citings of the species in the vicinity of Harbor Course South, but it does not appear that this property is an important habitat for the Schaus' swallowtail butterfly. There is no specific evidence of the presence of the Eastern Indigo snake on the subject property. Before a lot owner in Harbor Course South can clear his homesite, the Monroe County Code requires the owner to secure a habitat analysis which must be prepared by an accredited biologist approved by the County. That analysis determines the quality of the hammock on the lot, which in turn determines the amount of vegetation which the County will allow the lot owner to clear. This requirement was in place for the first thirty eight lots that were originally platted in Section 1. Under the existing Monroe County Land Clearing Regulations, only twenty percent of a lot with high quality tropical hardwood hammock can be cleared; forty percent of a lot with medium quality hammock can be cleared and forty to eighty percent of a lot with low quality hammock can be cleared. As of the date of the hearing in this case, all lot owners in Harbor Course South who have applied for a building permit were allowed to clear at least a portion of the lot for construction of a homesite. It does not appear that any lot owner was permitted to clear more than forty percent of his lot. As indicated above, no permits from the Commission or the U.S.F.W.S. were necessary in order to clear the lots and commence building on the thirty- eight lots in Section 1. Likewise, the Commission determined that the habitat quality in the area of Plat 17 was sufficiently low that a permit would not be required for development on that Plat. However, the Intervenors were aware of the presence of endangered and threatened species in this area. Around the time that the Vested Rights Determination was obtained, the Intervenors entered into discussions with the U.S.F.W.S. and the Commission in an attempt to obtain an overall permit for Plat 17, 18 and 19 with respect to endangered and threatened species. During these negotiations, the Intervenors received permission from the U.S.F.W.S. and the Commission to proceed with development in Plat 17 even before a permit was issued. The Commission determined that the Intervenors could proceed with the development of Plat 17 without obtaining a permit because of the relatively low habitat value of most of the parcel and the apparent absence of any endangered species in this area. As part of the negotiations regarding this authorization, the Intervenors agreed to seek a permit with respect to the remaining one hundred and nine lots in the subdivision. The negotiations were prompted, at least in part, by an agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority (which provides water to the area) that established certain requirements before water connections could be made to new residential property in North Key Largo. This agreement requires that, before water connections can be made to an area inhabited by endangered or threatened species of wildlife, a permit must be obtained by the U.S.F.W.S. During the negotiations, the U.S.F.W.S. indicated to the Intervenors its desire to address the conflict between the endangered species on North Key Largo and development interests in "one big conflict rather than having to handle it land owner by land owner." The Commission agreed with this approach feeling it could better protect the subject species through required mitigation by the developer which would probably not be possible or practical when dealing with individual lot owners. Although the Intervenors questioned the legality of the requirements imposed as a result of the agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority, the Intervenors decided to try and work with both the federal and state agencies and attempt to meet their concerns rather than engage them in a legal battle over their authority to impose mitigation requirements on new developments. A permit from the U.S.F.W.S. or the Commission is not necessary for the Intervenors to sell the lots in Plats 17, 18 and 19. The Intervenors sought permits from the Commission and the U.S.F.W.S. in a good faith attempt to cooperate with the agencies responsible for enforcing the Endangered Species Act and to eliminate obstacles to the clearing and development of the lots by individual lot purchasers. The U.S.F.W.S. has developed specific rules and procedures for protecting the habitat of endangered species and issuing "incidental take" permits for activities that may impact on the species or their habitat. The Commission has not adopted any rules that specifically protect the habitat of endangered species other than a prohibition against molesting or harming their nests. Similarly, the Commission has no specific rules regarding "incidental take" permits. The Intervenors filed an application with the U.S.F.W.S. on March 13, 1989 seeking a permit for covering all of Plats 17, 18 and 19. Attached as exhibits to the application were copies of the pleadings from the proceedings whereby Intervenors received their Vested Rights Determination, a summary of a proposed revegetation project to be undertaken in connection with the permit; the Harbor Course Subdivision construction plans together with construction details; a report prepared by Dr. Earl Rich regarding North Key Largo endangered rodent preservation measures; a report by Dr. Jack Stout setting forth the results of woodrat and cotton mice trapping in the subject area; and an aerial photograph of the subject area. The application sought a "permit for the incidental taking of endangered species in connection with completion of development of a residential subdivision and related site improvements surrounding an existing golf course. The area to be cleared may include habitat for the Key Largo woodrat, cotton mice, or Schaus' swallowtail butterfly." A permit has not been issued by the U.S.F.W.S. with respect to Plat 17, 18 and 19. The Intervenors' application for a permit has been transmitted to the Commission. It is not clear how the application filed with U.S.F.W.S. came before the Commission for consideration. The Commission has no direct agreement with the Florida Keys Aqueduct Authority regarding water connections. The Commission's authority for asserting jurisdiction over the development is not based on any existing rules or statutes regarding "incidental take" permits. The U.S.F.W.S. has apparently agreed to defer to the Commission with respect to the issuance of a permit for the Harbor Course South development. The U.S.F.W.S. has been kept abreast of the negotiations and terms of the Proposed Permit and has suggested various changes during the negotiation process in an effort to coordinate the conditions of the two permits. By letter dated July 24, 1989, the Commission set forth conditions for the issuance of a permit to the Intervenors which would authorize them to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, and to take Eastern Indigo snakes, "incidental to land clearing operations and building construction of single family and cluster homes" on Plat 17, 18 and 19. The permit does not authorize the killing of woodrats, cotton mice or Schaus' swallowtail butterflies. The Commission stated that the permit was being issued pursuant to Rules 39-27.002(1) and 39- 27.002(2), Florida Administrative Code. (The July 24, 1989 letter setting forth the conditions for the permit will be referred to as the "Proposed Permit.") The Proposed Permit states that the permit will inure to the benefit of the Intervenors and their "successors in title or their agents." In other words, purchasers of lots from the Intervenors would be covered by the Permit and no additional permit would be necessary to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, or to take the Eastern Indigo snakes incidental to the development of their lots. The terms and conditions of the Proposed Permit were prepared after several meetings and discussions between Commission personnel, the Intervenors' expert biologist Dr. Stout and the developers themselves. The Proposed Permit requires both on-site mitigation and off-site mitigation. The on-site mitigation requires the permanent dedication in the form of a conservation eastment of 5.94 acres in Tract E of Harbor Course South, Section 3 ( Ocean Reef Plat 18) to provide perpetual protection for the habitat for the species listed in the Proposed Permit. The exact provisions of this conservation easement are not speficified in the Proposed Permit and were not established in this proceeding. The Permit also requires specific habitat enhancement of Tract E by planting torchwood seedlings as a means to attract Schaus' swallowtail butterflies in the area of an old service road on Tract E, revegetation in accordance with specific planting instructions of another road that bisects Tract E and the placement of ten piles of rocks and logs of at least four cubic yards each in the old roadway. A ten thousand dollar surety bond or letter of credit is required to ensure compliance with the planting and debris placement provisions within three years of the date of the issuance of the permit. The Intervenors had intended to subdivide Tract E into ten additional lots to be sold as homesites. While Petitioner contends that the development of lots in Tract E may have been prohibited because of the high quality hammock on some of these lots, the evidence established that most, if not all, of the lots in Tract E will be sold and developed as individual homesites if the area is not set aside as a conservation area pursuant to the terms of the Proposed Permit. The establishment of a conservation area in Tract E will help preserve a continuous habitat area for the endangered species. Tract E is adjacent to a large track of property that has been or is in the process of being acquired by the state for conservation purposes. By requiring the Intervenors to provide rubble and debris piles and revegetation on Tract E, the Proposed Permit will further enhance the quality of the habitat in this area. The Proposed Permit requires the existing dirt road which currently cuts through Tract E to be closed and revegetated. There is no requirement that the fill installed for the road bed be removed. While Petitioners contend that such a condition is necessary for the development of this tract into high quality habitat for the endangered species, the natural regeneration of the hammock will be enhanced by the revegetation plan and this area will ultimately develop into high quality habitat. Planting torchwood in the area of Tract E, which is close to the golf course and areas that will be developed, may actually harm the survival potential of the Schaus' swallowtail butterfly. The butterflies are extremely susceptible to chemical insecticides. Planting torchwood in areas where insecticides will be used may create an attractive nuisance to the butterflies. Therefore, the requirement for planting should be moved to an off-site area that is remote from the development to guard against this problem. The area of the old service road should be revegetated pursuant to a schedule similar to the one used for the other revegetation area. Off-site mitigation is to be provided through the enhancement of hammock succession on five, one acre segments of the right-of-way of Old State Road 905 or an alternative similar site approved by the Commission with an area of enhancement to equal five acres. The amount of off-site mitigation was baseed upon a calculation of the amount of road surface in Harbor Course South. The Proposed Permit requires the old road bed and asphalt to be removed and the road restored to original grade. The enhancement of the site is to be accomplished by planting tropical hardwood vegetation from a specified vegetation list, adherence to specific planting instructions governing phase of planting, survival rate and watering conditions, placement of twenty rock and debris piles, (each four cubic yards in volume), removal of exotic plant species semi-annually for a five year period and removal of weedy species of trees and shrubs in an area within a radius of three feet around each planted tree over a similar time period. Four lots in Plat 18 are to be set aside as an assurance against failure to complete the planting or failure to provide an alternative site. A surety bond or letter of credit in the amount of $50,000.00 is also required to ensure compliance with the planting requirements. Old State Road 905 is currently owned by the Florida Department of Transportation. There are plans to convey this right-of-way to Monroe County which in turn plans to abandon the road, remove the road bed and asphalt, and cooperate with the restoration. Thus, it appears that Monroe County may assume responsibility for removing the asphalt road along Old State Road 905. The Proposed Permit requires the Intervenor to ensure that this removal is accomplished. Old State Road 905 is utilized by some utility companies to service their utility lines. At this point, it is not clear whether the utility easements will preclude the revegetation required by the Proposed Permit from becoming effective. The Proposed Permit provides adequate procedures for selecting alternative sites in the event that Old State Road 905 can not be effectively used for a mitigation area. With respect to both the on-site and off-site mitigation, the revegatation requirements in the Proposed Permit are reasonably related to the Commission's goal of enhancing the long term survival of woodrats and cotton mice on North Key Largo. While the diversity of the flora in a natural hammock is greater than that called for in the proposed mitigation, the revegetation will accelerate the development of the mitigation areas into high quality habitat for the endangered species. While a hardwood hammock has a natural capability to regenerate on its own, the regeneration can be enhanced by planting trees in a scarified area. The revegetation required pursuant to the Proposed Permit will be placed mainly in corridors replacing old road ways. This placement will hasten the redevelopment of these areas into high quality habitat. The Intervenors are required to ensure a two year, seventy five percent survival rate for trees planted. Any trees that die are to be replaced by the species with the highest survival rate. The evidence established that the most effective way to enhance the revegetation process is to plant those species of trees that are slow to seed or that are relatively rare. It is not clear whether the planting schedule and sucession procedures attached to the Proposed Permit have taken this fact into consideration. While the diversity of species detailed in the attachments to the Proposed Permit could be reallocated between species to further enhance the revegetation process, the proposed schedules are adequate except for the requirement of planting torchwood on Tract E. Torchwood is an important habitat and food source for Schaus' swallowtail butterflies and should not be placed in an area where chemical insect control efforts are likely. As indicated above, the Proposed Permit requires a survival rate of 75% for the planted trees within two years of the initial planting. The Intervenors are also required to inspect the revegetation sites semi-annually for five years and to remove invasive exotic plants. In addition, Intervenors are required to remove weeding trees, shrubs and vines within a radius of 3 feet around each planted tree for a period of five years. Semiannual reports must be filed with the Commission for the first five years after planting to advise as to the presence of such species. There are no enforcement mechanisms in the Proposed Permit to ensure that the monotoring and removal of exotic species requirements will be completed. The bond requirements of the Proposed Permit only apply to the plantings and installation of debris piles. The requirement for removal of exotic species will help ensure that those exotic species cannot invade the mitigation sites and prevent or retard the natural hammock regeneration process. This requirement will enhance the development of a high quality hammock which will hopefully provide habitat for the endangered species. It is important that an enforcement mechanism be provided in the permit with respect to this requirement. The State Department of Natural Resources has a program for the removal of exotic plants from state lands. DNR is currently preparing a major management plan for North Key Largo and DNR employees are currently involved in removing exotic species from the right-of-way of Old State Road 905. The requirements of the Proposed Permit will augment the on-going efforts of DNR and free-up resources to focus on the removal of exotic species in neighboring areas. The Proposed Permit does not impose qualifications on the individuals who will be responsible for removing the exotic species. The permit should require the Intervenors to retain qualified people to identify the exotic species. The spacing, watering and survival rate aspects of the revegetation plan were based, in part, upon the experiences with revegetation at a previous mitigation site (the Budd Post site discussed below) and represent a reasonable effort for enhancing the revegetation of the hammock. While there is no requirement that the planted trees survive longer than two years after the initial planting, the 75% survival requirement during the first two years provides reasonable assurance that the revegetation will be done properly and with a high probability of success. General Condition 1 of the Proposed Permit indicates that the Commission will review the Permit periodically and "may initiate enforcement or revocation action for any violation of the Permit Conditions by the Permittee, its agents, its employees, or representatives." There is no provision for enforcement or revocation of the permit for violations of the permit conditions by purchasers of lots or other third parties who obtain title to the property from the Intervenors. This enforcement mechanism will become essentially obsolete if and when the Intervenors transfer their interests in the property. General Condition 2 of the Proposed Permit indicates that the Permit is valid "only for the specific processes and operations applied for and indicated in the approved drawings or exhibits." This provision is meaningless since there are no "specific processing operations applied for" and there have been no approved drawings or exhibits other than the planting schedules which are part of the revegetation aspect of the mitigation requirements. There are certain provisions of the Proposed Permit which are vague and/or ambiguous. Special Conditions 4(b) indicates that the requirements of Specific Condition 3(j) are applicable to the restoration of Tract E. Special Condition 3(j) requires the placement of twenty debris piles. However, Specific Condition 4(c) only requires a placement of ten such piles in Tract E. This ambiguity should be clarified. Special Condition 4(d) indicates that there are utility lines in the revegetation area which will have to be maintained. Under this provision, the applicant is allowed to maintain, using hand tools only, a clear path of up to eight feet wide over each utility line. It is not clear from the evidence presented how many utility lines are involved and whether a separate eight foot area can be cleared for each utility line. If several separate utility lines are involved, this provision could effectively prevent the regeneration of the area into high quality hammock habitat. Free ranging domestic pets, especially cats, are a significant threat to the endangered species. One of the conditions imposed by the Proposed Permit would prohibit free ranging pets within the subdivision pursuant to a subdivision covenant to run with the land. The specific wording of such a covenant has not been provided. The Proposed Permit does not provide for any enforcement mechanism with respect to this covenant. Some enforcement mechanism must be provided in order for this condition to provide any effective protection for the endangered species. The Proposed Permit requires the Intervenors to hold four lots from sale until the off-site mitigation requirements have been met. If the planting is not accomplished within a five year period, the Intervenors are required to include these four lots as part of the conservation easement in Tract E. The lots being withheld for sale have an average market value in excess of $120,000 per lot. Thus, this requirement places a major incentive on the Intervenors to comply with the terms of the Proposed Permit. However, it is not clear whether this enforcement mechanism can be applied to the provisions of the Proposed Permit regarding the removal of exotic species. The Proposed Permit does not allow the Intervenors to kill any member of the endangered species. The Proposed Permit does allow the "incidental taking" of the threatened species (Eastern Indigo snake). The term "incidental taking" is interpreted by the Comimssion to include the killing of a member of the threatened species which is incidental to the conduct of otherwise lawful activities. The Commission contends that it has the jurisdiction to issue such an "incidental take" permit for an endangered species under appropriate conditions and mitigation requirements. The Commission did not believe an incidental take permit was necessary with respect to the endangered species on this site because the Commission felt that the habitat quality was relatively low and the likelihood of encountering a member of the species at the site was also low. The evidence established that there is a possibility that some members of the endangered species, i.e., woodrats and cotton mice, will be killed during the development and building of the subdivision. While this possibility is speculative, the chances of such a killing can be minimized by incorporating further protections in the permit. The evidence did not indicate any likelihood that East Indigo snakes or Schaus' swallowtail butterflies will be killed incidental to land clearing and/or development of Harbor Course South. The U.S.F.W.S. requires a habitat conservation plan ("H.C.P.") before it will issue an incidental take permit. A habitat conservation plan committee was established by the Governor in 1985 to prepare an H.C.P. for the North Key Largo area. The goal of the Committee is to designate areas which would be suitable for development and areas which may be necessary for conservation. A Draft Habitat Conservation Plan has been prepared, but it has not yet been officially approved. Harbor Course South is outside the study area of the Draft Habitat Conservation Plan and therefore is not proposed as a conservation area. The framework and structure of the Proposed Permit reflects the Commission's desire to apply a comprehensive permitting approach to the Harbor Course South development rather than rely upon a lot-by-lot determination of jurisdiction with each individual lot purchaser at the time clearing or development activities are sought. The evidence established that there is insufficient indicia of woodrat or cotton mouse presence on a number of the lots in Harbor Course South. Thus, if a lot-by-lot approach was used, the Commission would not have the authority under its current rules to require a number of the individual lot owners to obtain a permit before land clearing. Without question, further fragmentation of the hammock will reduce the quality of the habitat for the endangered species. If a lot-by-lot permitting process is utilized, the owners of the lots that do not show any signs of the presence of woodrats or cotton mice would be able to clear to the maximum extent allowable under the Monroe County development ordinances. Such an approach would not halt the further fragmentation of hammock. By utilizing a comprehensive permit, the Commission can establish uniform standards for development and require stronger mitigative measures to offset the impact of development in the area on the endangered and threatened species. The approach is further justified in view of the Commission's determination that the Harbor Course South property is of only minimal importance as a habitat for the endangered and threatened species. See, Findings of Fact 80-81 below. In sum, land development and land clearing activities are likely to take place on the Harbor Course South property regardless of whether the Proposed Permit is issued. If the Commission utilizes a lot-by-lot determination of jurisdiction, a large portion of the lots on Harbor Course South would not be required to obtain a permit from the Commission because many of those lots do not have nests or any indication of the presence of the endangered species. Under these circumstances, the Commission would probably not be able to obtain comprehensive mitigation conditions and the habitat for the endangered species would be further fragmented with little or no mitigation. As noted above, the Commission has not adopted any rules setting forth its policies and procedures for issuing an overall blanket permit for the "incidental taking" of endangered species. Similarly, there are no formal guidelines adopted to establish when the Commission has jurisdiction over land- clearing activities. In determining whether to assert jurisdiction over a particular piece of property, the Commission looks for evidence of existing nests or habitat of an endangered species or the probability that a taking, killing or some other molestation will occur to a particular member of the species. In connection with the Proposed Permit, the Commission determined that it had the authority under Rule 39-27.002, Florida Administrative Code, to issue permits for clearing and development activities that molest the nests of endangered species. As discussed below, the Commission has issued only one prior permit for land clearing and development activities. That prior permit is was not timely challenged. No rules or standards have been promulgated by the Commission to set forth the mitigative requirements that can be imposed, if any, upon individual lot purchasers. An important factor in the Commission's decision to issue the Proposed Permit in this case was the Commission's determination that the overall quality of the Harbor Course South property as habitat for the endangered species was minimal. In determining that the Harbor Course South property was of minimal importance to the survival of the endangered species, the Commission took into consideration various reports on the sparse density of the population of the endangered species on the subject property. The Commission also took into account what it deemed to be inevitable future development as reflected in the Vested Rights Determination, the fact that the site was not designated for preservation in the Draft Habitat Conservation Plan, and the fact that the site was not part of the North Key Largo CARL acquisition project. Finally, the Commission considered that the site was already a highly fragmented tropical hardwood hammock as demonstrated by Landsat Thematic Mapper Classfied Satellite Imagery. The only previous instance in which the Commission has issued a permit to molest or harm the nests or habitat of endangered species pursuant to land clearing or development activities involved another residential sub-division in North Key Largo. In June of 1986, separate permits were issued by the U.S.F.W.S. and the Commission to the Nichols/Post Hendrix Corporation to destroy nests and habitat of the Key Largo woodrat and Key Largo cotton mouse. (The permit issued by the Commission in connection with this prior project will be referred to as the "Budd Post Permit.") The property covered by the Budd Post Permit is south of Harbor Course South. It lies approximately six miles south of the intersection of Old State Road 905 and Card Sound Road. That property consists of approximately ten acres of high quality hardwood hammock located within the project area of the North Key Largo Hammocks, CARL land acquisition program. Thus, the property was essentially surrounded by high quality tropical hardwood hammock. The Budd Post property is similar to the Harbor Course South property in that both areas run from County Road 905 east to the ocean and both tracts contain habitat suitable for use by endangered species. However, Harbor Course South is a lesser quality habitat than the Budd Post property because it is more highly fragmented and is bordered on the north by the highly developed Ocean Reef property. Overall, there was a significantly greater indication of the presence of the subject endangered species on the Budd Post Property than there is at Harbor Course South. The Budd Post Permit was the first of its kind issued by the Commission and was processed simultaneously and concurrently with the comparable federal permit from the U.S.F.W.S. As a condition to issuance of the Budd Post Permit, the Commission required the permittee to set aside a preservation area, build debris piles to encourage nesting of woodrats and cotton mice and plant vegetation off-site to mitigate the loss of hammock habitat. A condition of the Budd Post Permit required the permittee to trap and remove the endangered species during land clearing activities. A similar condition in the Proposed Permit would help reduce the likelihood of any killing of the endangered species. The results of the mitigation plan for the Budd Post Permit indicate that such a plan can serve to enhance the survivability of the endangered species by providing high quality habitat and accelerating the revegetation of scarified areas. A little more than two years after the mitigation plan for the Budd Post Permit was implemented, it appears that the efforts are achieving their intended results. Specifically, the plants that were planted as a result of the revegetation plan are flourishing and at least some of the debris piles have been colonized by woodrats. Thus, it appears a viable habitat has been created. There is no definitive method for determining the density of population of woodrats or cotton mice at a given site. In making its jurisdictional determination with respect to the Budd Post property, the Commission looked for the presence of stick nests, (which are widely presumed to be constructed by woodrats) as the primary jurisdictional indicator. Subsequent to the issuance of the Budd Post Permit, the Commission has recognized that stick nests are not the sole indicators of the presence of wood rats and the Commission now considers other factors as well. The U.S.F.W.S. requires a trapping study of woodrats and cotton mice as part of its permit application. The permittee for the Budd Post Permit provided the U.S.F.W.S. and the Commission with a "trapping report" prepared by Dr. Stout. The Intervenors also hired Dr. Jack Stout, who is a biologist and professor at the University of Central Florida, and a similar report was prepared for Harbor Course South. The same methodology was used to trap woodrats and cotton mice on both sites. Dr. Stout concluded that the Harbor Course South property had a low density population of woodrats and cotton mice. Dr. Earl Rich, a biologist and ecologist and a former professor at the University of Miami with extensive experience researching woodrat habitat on North Key Largo, also inspected the Harbor Course South property on behalf of the Intervenors. His inspection took place after the date of the Proposed Permit. He determined that the overall quality of the subject property as habitat for the endangered species was low because of the fragmented and uneven quality of the hammock. These qualities are largely attributed to the existing intrastructure and the golf course which winds throughout the subject property. Julie Hovis, a wild life biologist employed by the Commission, performed a site inspection report in connection with the application for the Proposed Permit. While not an expert on the endangered species, she was qualified to identify certain signs of the presence of the species. She found that there was some evidence that woodrats and cotton mice were present on the Harbor Course South property. She noted that the quality of the habitat varies greatly. Her inspection and conclusions were the basis for the Commission's assertion of jurisdiction over the subject site. Dr. Steven Humphrey and Dr. Numi Goodyear inspected the area on behalf of the Petitioners to determine the presence and/or density of the endangered species populations. While their studies find more evidence of the presence of wood rats and cotton mice on the subject property than the prior studies had indicated, they also conclude that the property is a mixed quality habitat for the endangered species. While there are some areas that appear to be high quality habitat, these experts recognize the fragmented character of the habitat and the effect of the golf course in disrupting the habitat and producing "islands of vegetation." The Goodyear and Humphrey studies confirm that the densities of the endangered species are lowest in areas where the hammock is highly fragmented. The Goodyear and Humphrey studies do not refute the Commission's conclusion that a significant number of the lots of Harbor Course South do not reflect sufficient indicia of the presence of the endangered species to allow the Commission to assert jurisdiction on all the property if a lot-by-lot permitting process was utilized. The Commission has concluded that the continuing development of Harbor Course South is inevitable. The Commission has also concluded that its authority over clearing of individual homesites is limited. In view of these conclusions, the Commission has attempted to enhance the survivability of the endangered species by imposing certain mitigation requirements on the Intervenors. The evidence has established that, assuming the development of Harbor Course South is inevitable, and the Commission lacks the authority to halt the development of Harbor Course South, the Commission's comprehensive approach to permitting will be more favorable to the survival potential of the endangered species than a lot-by-lot jurisdictional determination would be.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Game and Fresh Water Fish Commission enter a Final Order setting forth the terms and conditions for an Agreement with the Intervenors for a specific period of time as set forth in Paragraph 30 of Conclusions of Law, whereby permits will be issued for the incidental destruction and/or molestation of the nests and habitat of the subject endangered species in accordance with the terms and conditions of the Proposed Permit as modified in accordance with the provisions of Paragraph 32 of the Conclusions of Law above. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of October, 1990. J. STEPHEN MENTON 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 18th day of October, 1990.
Findings Of Fact The parties stipulated to the following facts: Petitioner is an employee of the Boromei-Mirabella Seafood Company, a licensed fish dealer located in Tampa, Florida. The scope of Petitioner's employment included the vehicular transport of fish for sale or purchase. While engaged in his employment, Petitioner was apprehended and arrested by officers of the Commission, and charged with violation of Rules 39-10.02(4) and 39- 10.02(5), Florida Administrative Code. Petitioner's arrest occurred in Highlands County, Florida, on or about December 11, 1980. Petitioner, for purposes of this proceeding, admits to the factual behavior alleged in the arrest citation issued by Respondent's offices. The rules challenged in this proceeding were promulgated by Respondent in accordance with the procedures set forth in Chapter 120, Florida Statutes, also known as the Administrative Procedure Act. The challenged rules became effective on August 11, 1979. Both rules cite Article IV, Section 9, of the Florida Constitution and Section 372.021, Florida Statutes, as "specific authority" for promulgation of the rules. In addition, Section 372.65, Florida Statutes, is listed in the Florida Administrative Code, as the "law implemented" by the two challenged rules.
Findings Of Fact Max and Anne Makowsky (Respondents Makowsky) are the owners of real property located at Lot 5, Block 35, Venetian Shores Subdivision, Plantation Key, in unincorporated Monroe County, Florida. Respondents Makowsky's property is located in the Florida Keys Area of Critical State Concern. On November 20, 1992, Monroe County, Florida (Respondent County) issued a building permit, Building Permit No. 9230008125, to Respondents Makowsky. The permit authorized Respondents Makowsky to construct and place on their property a boat ramp which measures six feet by thirty feet. Petitioner received a copy of the Building Permit from Respondent County on November 24, 1992. Submerged lands adjacent to Respondents Makowsky's property are owned by the State of Florida. The boundary between the State's submerged lands and Respondents Makowsky's property is the mean high water line. Twenty feet of the proposed boat ramp would extend below the mean high water line. The twenty feet would lie over submerged lands. Chapter 9.5, Monroe County Code, contains Respondent County's Land Development Regulations. Section 9.5-345(m) contains the environmental design criteria applicable to submerged lands in Respondent County. Section 9.5-345(m) provides in pertinent part: All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * * No structure shall be located on sub- merged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water z depth of at least minus four (4) feet exists. In the permit application, Respondents Makowsky provide that the intended use for the ramp is to launch a windsurfer and a small inflatable boat or dinghy. Respondents Makowsky's dinghy has a motor with a shaft which extends two and one-half feet below the boat's water line. As the proposed boat ramp would allow access to the water via watercraft, the term "docking" facility," as used in Section 9.5-345(m), is applicable to Respondents Makowsky's proposed ramp. The submerged land adjacent to Respondents Makowsky's property is very shallow and heavily populated by sea grass, i.e. turtle grass. The turtle grass areas serve as nursery grounds and provide food and shelter for juvenile fish and invertebrates. These habitat values increase when coupled with the mangrove fringe (the roots of mangroves) located along the area. The mangrove roots also provide food and shelter for the juvenile fish and invertebrates. The turtle grass would be adversely impacted by the ramp itself if the proposed ramp was approved and constructed. The structure itself would shade out the needed sunlight to the grasses underneath the boat ramp, causing those grasses to die. Also, the use of the ramp to dock small boats would adversely impact the turtle grass. The bottom of the submerged land is a very loose, calcarious substrate. Launching a boat would cause the sand to "kick up" (lift up). When the sand comes down, it would settle on the turtle grass and smother it because there would be no way for the turtle grass to clean itself. Further, using a motorized boat, as Respondents Makwosky's, would cause "prop dredging" to occur, harming the turtle grass. In "prop dredging," the motor's propeller would destroy the grasses directly by tearing them up or destroy the grasses over a period of time through siltation after churning up the sand from the substrate. The mean low water depth, i. e., the average mean low tide, at the terminal end of the proposed ramp is less than four feet. In the permit application, the depth at the end of the ramp is indicated to be zero feet mean low water. Petitioner estimates the water depth at low tide as between one foot and two feet. The proposed ramp site is not located at a channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists. Respondents Makowsky have boat access through a boat basin approximately 320 feet to the southwest of their property. The boat basin is located in their Subdivision. A slip in the boat basin is assigned to Respondents Makowsky and they are entitled to use it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order DENYING Monroe County Permit No. 9230008125. RECOMMENDED this 22nd day of December, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 2nd day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1317DRI Petitioner's proposed findings of fact 1 - 13 have been adopted in substance, although not verbatim, in this recommended order. COPIES FURNISHED: Bob Bradley, Secretary Florida Land and Water Adjudicatory Commission Executive Office of The Governor 1601 Capitol Tallahassee, Florida 32399 Gregory C. Smith, Esquire Governor's Legal Office 209 The Capitol Tallahassee, Florida 32399-0001 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Karen Brodeen Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie Gehres Assistant General Counsel Department of Community Affairs Marathon Regional Service Center Suite 212 2796 Overseas Highway Marathon, Florida 33050 Max and Anne Makowsky 1900 Glades Road, Suite 245 Boca Raton, Florida 33431 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 James T. Hendrick, Esquire Morgan & Hendrick 317 Whitehead Street Key West, Florida 33041-1117 Bob Herman, Director of Growth Management Monroe County Regional Service Center 2798 Overseas Highway Marathon, Florida 33050-2227
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29(1) Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner. The hearing was originally scheduled for December 8, 1977, but respondent filed a motion for continuance which was granted by the Hearing Officer and the hearing was rescheduled for January 18, 1978. At the hearing, respondent moved to dismiss the charges on the ground that the Notice of Hearing issued on November 21, 1977, by the Hearing Officer was defective in that it did not adequately describe the petitioner's Notice to Show Cause or attach it to the Notice of Hearing. The motion was denied upon a determination that respondent had adequately been placed on notice as to the nature of the offense charged and due to the fact that the Notice to Show Cause had been sent by certified mail to respondent and that the receipt thereof on August 13, 1977, by an authorized agent of respondent was not contested. Further, respondent's motion for continuance indicates that her counsel was aware of the subject matter of the charges. Additionally, if such had not been the case, respondent had sufficient opportunity during the period in which the case had been continued to seek amplification or clarification of the issues involved in the case as set forth in the Notice of Hearing.
Findings Of Fact Respondent Jennie E. Harrell, d/b/a W. D. Harrell Fish Bait and Tackle, 515 South Roberts Street, Quincy, Florida, holds license Number 30-82, Series 1 COP, issued by petitioner which permits the sale of beer for consumption on the premises. The license was in effect during August, 1976. (Petitioner's Exhibit l) An occupational license for 1975-76 issued by the City of Quincy, Florida, Number 394, was issued to the Lake Talquin Fish Market, 515 South Roberts Street, Quincy, Florida, on October 15, 1975, to engage in the occupation of merchant. A similar license in the same name at the same address, Number 395, and issued on the same date, authorized the licensee to engage in the occupation or business of retail sale of gasoline. City occupational license 1976-77, Number 298 ,issued by the City of Quincy to Lake Talquin Fish Market at 517 South Roberts Street, to engage in the business or occupation of merchant, was issued on September 30, 1976. The Lake Talquin Fish Market is located at 517 South Roberts Street. The official records show that the license was issued to Jenny Harrell of 515 South Roberts Street, Quincy, Florida, and that the 1975-76 license Number 394 was issued in the same name. (Petitioner's Exhibits 2 and 10, supplemented by Petitioner's Composite Exhibit 3) On August 15, 1976, at approximately 10:55 a.m., State Beverage Officers Gary Sams and Fred Miller met with a reliable informant, one Guy Williams, in the vicinity of respondent's licensed premises at 515 South Roberts Street, Quincy, Florida. After searching Williams for any money or alcoholic beverages on his person, Sams gave him $7.20 and instructed him to attempt to purchase whiskey at respondent's place of business, W. D. Harrell Fish Bait and Tackle. The officers observed Williams drive to the building in question, but could not see his subsequent actions. He returned approximately fifteen to twenty minutes later with a partially filled one-half pint bottle of Seagram's Seven Crown whiskey. Williams had entered respondent's premises and asked a woman behind the counter if he could purchase a half-pint of whiskey. She told him he would have to go next door. He thereupon entered the adjacent premises, Lake Talquin Fish Market, and ordered a half-hint of Seagram's Seven Crown whiskey from a man there. The man went in the back of the store and returned with a sealed one-half pint bottle labeled Seagram's Seven Crown. Williams paid $2.50 for the bottle, took a drink from it, and found that it was, indeed, whiskey. The bottle was thereafter labeled for identification by the beverage officers and placed in the evidence room of petitioner's Tallahassee office. However, it was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 22, 1976, the two beverage agents again met with Williams at the same location at approximately 9:30 a.m. Following the same procedures as before, Sams gave Williams $4.00 and instructed him to go to respondent's state- licensed premises to attempt to purchase liquor. The same sequence of events as on August 15th occurred, involving a woman at W. D. Harrell Fish Bait and Tackle, and a man at the Lake Talquin Fish Market. This time the purchase was for a one-half pint sealed bottle of Seagram's Golden Dry Gin for which Williams paid $2.50. Again, he drank out of the bottle and verified that it was gin. This bottle was turned over to the beverage agents who verified that it was gin by its smell, and it was tagged and placed in petitioner's evidence room in Tallahassee. It, too, was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 23, 1976, criminal complaints were filed by petitioner's representatives against respondent and others, and, on August 24, a search warrant was issued authorizing a search of the premises of the Lake Talquin Fish Market at 517 South Roberts Street, and warrants were issued for the arrest of respondent and the individuals who had allegedly sold the alcoholic beverages to Williams. At approximately 5:15 p.m. on August 28, Agent Miller, together with local police officers, served the search warrant on one Isaac Ford at the Lake Talquin Fish Market. A search of the premises failed to reveal the presence of alcoholic beverages. The agents observed a well-worn path leading approximately 15 or 20 feet to an adjacent condemned frame house, and also an electric wire running from the store to the house. Further, they discovered a light switch in the store which controlled a light in the northeast room of the house. They observed a quantity of liquor and wine bottles on the floor of that room. It was noted that the house was secured by a padlock. Upon Inquiry, Ford stated that he did not have the key to the lock. The agents then asked respondent, who was at her place of business, if she had the key. She answered in the negative. When asked if the whiskey that had been observed in the house belonged to her, she said that it did not, but that she owned the house and wanted the whiskey off the premises. The agents thereupon forced entry into the house and seized 265 bottles of alcoholic beverages found inside. The bottles were sealed and strips indicating that tax had been paid were on the bottles. Sixteen of the bottles were assorted brands of wine; the remainder were liquor. (Testimony of Sams, Miller, Fader, Petitioner's Exhibits 5-13)
Recommendation That a civil penalty in the amount of $500.00 be imposed against Jennie E. Harrell, d/b/a D. Harrell Fish Bait and Tackle, License Number 30-82, pursuant to Section 561.29(1)(h) and (4),F.S., for violation of Section 562.12(1), F.S. DONE and ENTERED this 27th day of January, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley,. Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Jack A. Harnett, Esquire Post Office Box 706 Quincy, Florida 32351 Charles A. Nuzum, Director Division of Beverage Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
Findings Of Fact Respondent, Norman Padgett, holds a haul seine permit, issued by the Commission, which authorizes Respondent to operate a haul seine net on Lake Okeechobee. The permit is renewable annually and is one of ten such permits issued by the Commission. The Lake Okeechobee Haul Seine Permits authorize their holders to fish by haul seine and to harvest game fish in commercial quantities, activities not legal absent such a permit. To minimize conflicts between sport fishermen and commercial haul seine permittees on Lake Okeechobee, the Commission has, by rule, prohibited seining activities in certain areas. Among the areas closed by rule to haul seining is the area south of a line that connects the northernmost point of Kreamer Island to the northernmost point of Ritta Island. That line is approximately five miles long and can be readily determined since the northernmost point of either island is visible from the other island. Also closed by rule to haul seining are those areas shoreward of a line delineated by the Commission's commercial fishing boundary buoys. The boundary line is approximately one mile lakeward of emergent aquatic vegetation. The Commission, by rule, has prohibited the use of "short" haul seines as an aid to its enforcement against haul seining in closed areas. "Sport" nets are prohibited because of the ease with which they can be deployed and retrieved. During the time period pertinent to these proceedings, the Commission's rules prohibited use of haul seine nets of less than 350 yards in length. On June 18, 1984, a crew was conducting haul seining operations under the authority of Respondent's haul seine permit. The crew was operating in the closed area south of the line established by the northernmost points of Kreamer and Ritta Islands and was warned by a Commission employee that use of a haul seine in that area was prohibited. On June 19, 1984, a crew was again conducting haul seining operations under the authority of Respondent's haul seine permit in the closed area south of the line established by the northernmost points of Kreamer and Ritta Islands. The seining operations were being conducted from one-half to one mile within the closed area. On June 20, 1984, a crew was again conducting haul seining operations under the authority of Respondent's haul seine permit. On this occasion the crew was operating in a closed area shoreward of a line delineated by the Commission's commercial fishing boundary buoys. The haul seine net being used measured 277 yards in length. Respondent was not on board the fishing vessels during the foregoing events. However, consistent with the Commission's rule, the crews were in possession of his permit. At hearing Respondent offered no evidence of what, if any, efforts he took to supervise or maintain control of the haul seine crews. His testimony established, however, that he was aware the haul seine net was less than 350 yards in length. By letter dated March 28, 1985, the Commission informed Respondent of its intent to revoke his Lake Okeechobee Haul Seine Permit. Respondent timely requested a formal hearing. The case was forwarded to the Division of Administrative Hearings and assigned Case No. 85-1312. By letter dated July 23, 1985, the Commission informed Respondent of its intent to deny his application for renewal of his haul seine permit, predicated on their prior decision to revoke his permit. Respondent timely requested a formal hearing. The case was forwarded to the Division of Administrative Hearings, assigned Case No 85-2612, and consolidated with Case No. 85-1312.
The Issue The issue for resolution in this proceeding is whether the Department of Environmental Regulation (DER) should approve Petitioner's construction of a dock on Lake Kissimmee in Polk County, Florida. Such approval would require the grant of an after-the-fact permit.
Findings Of Fact Earl W. Thomas, the Petitioner, owns approximately 15.5 acres on the western shore of Lake Kissimmee near Lake Wales, in Polk County, Florida. On March 15, 1984, Petitioner filed an application with the Department of Environmental Regulation (DER) to construct a 3,160 square foot dock at his property on Lake Kissimmee. The dock is described in drawings attached to the application as 550 feet long with a 60 foot "T" segment at the end. The application form is styled, "Joint Application, Department of the Army/Florida Department of Environmental Regulation for Activities in Waters of the State of Florida". The activity described in the application is "proposed pier for mooring private boat -- no fuel pumps or toilet facilities to be constructed on pier". (Petitioner's exhibit #5) Thomas received a letter dated March 28, 1984 from the Army Corps of Engineers acknowledging the application and granting General Permit SAJ-20. The letter authorized construction but provided that it did not obviate the need for any other required federal, state or local permits. A form letter from the Florida Department of Natural Resources (DNR) dated April 26, 1984, informed Thomas that a letter of consent from the Board of Trustees of the Internal Improvement Trust Fund would be required. A form letter from DER dated May 10, 1984 acknowledged receipt of the application and stated that evaluation of the project would be delayed until receipt of DNR consent. The DNR letter of consent was issued on June 28, 1984, signed by Ted Forsgren, Chief, Bureau of State Lands Management, and referencing the use of approximately 2,366 square feet of state-owned submerged land for a private docking facility. The letter states, "Please consider this the authority sought under Section 253.77, Florida Statutes, to pursue this project." (Petitioner's exhibit #9) Thomas commenced construction, and the dock was completed by July 28, 1984. As completed, the dock is approximately 480 feet long, with a 24 foot "T" cross at the end. During construction, in a letter dated July 24, 1984, to the DER Tampa office, Ed Moyer, then Fishery Biologist with the Florida Game and Fresh Water Fish Commission stated, "Our office is opposed to the issuance of a permit to construct a 600' [sic] dock on the west shore of Lake Kissimmee. " (Respondent's exhibit #2) Basis for the opposition was that the structure would obstruct boat traffic along a navigable path parallel to Mr. Thomas' shoreline. In a letter dated September 17, 1984, signed by James W. MacFarland, Director, Division of State Lands, DNR informed Thomas that it was rescinding its prior consent due to receipt of additional information from DER and conversations with the Game and Fresh Water Fish Commission. The letter also states "...It appears that the information represented to us did not actually represent your proposed activity or address the severe navigational problems caused by your construction of a facility approximately 600 feet [sic] in length. ..." (Petitioner's exhibit #10) On September 18, 1984, DER issued its Intent to Deny Thomas' application. This document provides, in pertinent part: * * * On October 14, 1984 [sic] Bill Ackerman, Field Inspector for Polk County, inspected the proposed pier site and the adjacent lake. Approximately 200' waterward from the west shore of the lake is a 20' wide approximately 4' deep navigation channel which is used by area boaters during sudden winds from the east as a safe haven path which protects them from the chop of the open lake. Based on his personal experiences and site inspection on this lake and the opinion and the recommenda- tion of the Florida Game and Fresh Water Fish Commission, the agency has come to the conclu- sion that the proposed dock will both obstruct and hinder navigation in this natural lake channel, contrary to the provision of Chapter 253.123, F.S. In addition, the proposed dock's obstruction of the existing channel will cause boaters to prop dredge a new access channel around the dock, causing substantial wetland losses, resuspension of nutrient laden bottom sedi- ments and turbidity. * * * [Petitioner's exhibit #11] In response to this notice, Petitioner requested a formal hearing. Nothing in the record of this proceeding explains the inconsistency in the dates in the notice of intent to deny. The notice itself was issued on September 18, 1984 and the October 14, 1984, reference is clearly in error. The permit file of the DER includes a form dated 6/11/84, styled "Permit Application Appraisal", referencing an on-site inspection by Bill Ackerman on 10/14/82. [Respondent's exhibit #3] This form appraisal describes the project as a 600' long private dock, with a 48 square foot "T" at the end, and 2400 square feet of over-water surface area. The appraisal references a fence that Thomas built allegedly on state submerged lands in the lake, and a dispute with DNR over that fence. The appraisal also describes a boat path about 200' from shore and parallel to the shore within the grassy weeds, providing a safe passage for small boats caught in the lake in sudden storms or high waves. The appraisal recommends denial of the permit for navigation reasons, but recommends that the permit could be approved if the fence were removed and the length of the dock were reduced. The inspector and apparent author of the appraisal report, Bill Ackerman, died several years ago. No witness could explain the source of the various references to a 600' dock, since the application was for a 550' long dock, including the width of the "T" cross, and the dock that was built was 480' long. The appraisal report is the only evidence from DER's file of that agency's review of the project, and it is evident that the site visit was conducted approximately 1 1/2 years prior to the application in issue, perhaps related to the fence, which is not at issue in this proceeding. However, Edwin Moyer, the Florida Game and Fresh Water Fish Commission staff person who wrote the July 1984 opposition letter, testified and confirmed that the boat trail described in the appraisal did exist in 1984. This trail, called a "kicker trail", was not a dredged path, but rather was created like many others by the operation of boat propellors through the weeds and grasses along the shore of the lake. If unused, these trails disappear, and new ones are created. At the Thomas site, Lake Kissimmee is approximately 5 miles wide. Small boats need the trails as the vegetation protects them from high waves. Thomas' dock intersected the kicker trail described in the DER appraisal report and by Edwin Moyer. New trails, however, now exist beyond the end of Thomas' dock and still within the dense vegetation which extends some 360 feet waterward from the end of the dock. An "outside" trail runs parallel to the shoreline, approximately 350 feet beyond the dock, and is used by small to medium motorboats. An "inside" trail is located about 60 feet beyond the end of the dock and is used exclusively by airboaters, who can run in just inches of water and who experience severe handling problems in deep water or heavy waves. Airboats don't require trails, as they can travel on top of the vegetation. Regular motorboats, such as bass boats and jon-boats, require more water. The water depth at the end of Thomas' dock fluctuates from about one to five feet deep; not including the approximate 1.5 feet of muck on top of the sand at the lake bottom at the Thomas site. The water elevation in Lake Kissimmee is controlled by the South Florida Water Management District, with a regulated high of 52.5 ft. NGVD to a regulated low of 49.0 ft. NGVD, with an even lower 48.5 ft. NGVD every three years. At the time of hearing, the water level was 50.3 ft. NGVD, or approximately 2.4 ft. deep at the end of Thomas' dock, not including the depth of the muck. Even if the Thomas dock did not exist, regular motor boats would have trouble navigating closer to shore, due to the shallowness of the water. Moreover, there are stumps and posts closer to shore, which present a greater danger to boaters, including seasoned airboaters, than Thomas' dock which is fully visible and which includes a light at the end which remains lit, with reflectors along the edges. Airboats running close to the shore have to veer out into deeper water as they approach the Thomas site, to avoid the dock. This is a nuisance, according to Garrett Whatley, an airboat operator who races on Saturday evenings. But the greater nuisance, as he concedes, are the posts and steel pipes in the water near the shore which are not marked and which can crack up a boat. In bypassing the dock, these obstructions are also avoided. Some Lake Kissimmee boaters consider Thomas' dock a navigational aid. The west side of the lake is not developed and the dock provides a prominent landmark, particularly for snail fishermen and other night boaters. The Gleasons and the Gilberts are neighbors of Earl Thomas. They each have 200 ft. docks which have been permitted by DER. The Gleasons have a 24 ft. pontoon boat which they moor at the end of a 70 ft. catwalk extending from the end of their dock. Even then, the water is only about 12 inches deep and they have to pole the boat out to avoid plowing into the muck on the lake bottom. The vegetation line at Thomas' site is thicker and farther out than at the Gleason's. George Gilbert also has a pontoon boat which he has to pole to access his dock. He has a kicker trail at the end of his dock, but the water is too shallow to use it. DER has granted him a permit to extend his dock another 100 feet. DER considers 300 feet a reasonable length for docks in the area and the agency tries to keep them a uniform length for navigational purposes. Removal of all or a portion of Thomas' dock can be accomplished without water quality damage so long as the removal is closely controlled. The pilings would have to be enclosed with a screen to limit turbidity during the removal process. Even if the act of removal could be controlled, the turbidity caused by boats interacting with the sediment closer to shore would be a recurring problem without the dock as it now exists. A shorter dock would necessitate the use of catwalks or other temporary access to boats unable to navigate the shallow water. Those boats moored away from the dock would still be an obstruction, and if unlit, would be less visible to night fishermen than the existing structure. The Thomas dock, as it now exists, is not a navigational hazard. Its removal would be more damaging than to permit it to remain.
Recommendation Based on the foregoing, it is hereby recommended that the Department issue its final order granting Petitioner's application for the dock as it now exists. That is, the application for a 550 foot dock should be deemed amended to provide for a 480 foot dock, as built. RECOMMENDED this 7th day of January, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4164 The following constitute specific rulings on findings of fact proposed by the parties. Findings of Fact Proposed by Petitioner Adopted in paragraph 2. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Addressed in Preliminary Statement. Adopted in paragraph 7. 10.-14. Adopted in paragraph 17. 15.-18. Adopted in substance in paragraphs 16 and 20. Findings of Fact Proposed by Respondent Adopted in paragraph 2, except that the dock was to be 550 feet long. Adopted in paragraph 7. Adopted in paragraph 5. Adopted in paragraph 10. Adopted in substance in paragraphs 16 and 20. 6.-9. Adopted in summary in paragraph 17. Adopted in paragraph 12. Adopted in paragraph 15. Adopted in paragraph 16, by implication. Adopted in paragraph 18. 14. Rejected as unnecessary. 15.-16. Adopted in substance in paragraph 20. 17. Rejected as unnecessary. 18. Adopted in paragraph 16. 19. Adopted in paragraph 18. 20. Rejected as unnecessary. 21. Adopted in paragraph 22. COPIES FURNISHED: Carlyn Harper, Esquire P.O. Box 2807 Orlando, FL 32802 Douglas H. MacLaughlin Asst. General Counsel DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Dale H. Twachtmann, Secretary DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 12th day of June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
