The Issue Whether the Lee County Sheriff’s Office (“LCSO” or “Respondent”) correctly determined that a vessel owned by Gary Janikula (“Petitioner”) was a “derelict vessel” or an “abandoned vessel” on the waters of the state of Florida, within the meaning of section 823.11, Florida Statutes (2020), and therefore, subject to the provisions of sections 376.15, 705.101, 705.103, and 823.11, Florida Statutes (2020).
Findings Of Fact Based on the competent substantial evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: Mr. Janikula is the registered owner of a 35-foot pontoon houseboat,6 registration number FL3396HP (“pontoon houseboat”), found in the public waters of Lee County, Florida. LCSO is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of Florida.” § 823.11(3), Fla. Stat. Adam Winton is a sworn law enforcement officer (“LEO”) working as a Deputy Sheriff for Respondent. Prior to joining Respondent, Deputy Winton was employed by the Florida Fish and Wildlife Conservation Commission (“Commission”). The Commission is the primary state agency responsible for derelict vessel enforcement identification and investigation. Deputy Winton received “ongoing training, as well as [law enforcement] academy training in derelict vessel investigations,” and he has been assigned to “disaster areas several times for the sole purpose of conducting derelict vessel identification.” Deputy Smith has been a LEO for 23 years. Deputy Smith has been with Respondent’s marine unit for nine years. In addition to his four-year 6 Generally, this type of pontoon boat operates with a motor on each hull. degree from Florida State University, he has completed 16 hours of derelict vessel investigation training. When a derelict vessel investigation is begun, the LEO starts by identifying the owner of the vessel and finding out the owner’s intentions for the vessel. The derelict vessel investigation then determines three things: the vessel is “wrecked;” “junked;” or “substantially dismantled.” A vessel is “wrecked when it does not have the ability to extract itself absent some mechanical assistance;” it might be sunk or grounded. A vessel is “junked” when it is substantially stripped of components, the vessel has been discarded, or it could also be sunk. A vessel is “substantially dismantled” if the vessel does not have the power to be steered, there are parts missing from the vessel, or the vessel’s integrity itself is compromised. 10 On August 16, 2020, Deputy Winton was working the marine patrol detail in the public waters of Lee County, Florida. While on that patrol, Deputy Winton observed Mr. Janikula’s pontoon houseboat in Matanzas Pass7 in Lee County, Florida. Deputy Winton observed the pontoon houseboat “listing [leaning] significantly” and the “right [starboard] hull had been compromised.” He observed the right hull did not “have an effective means of dewatering ... [and] it’s been in the state for quite some time.” Although the pontoon houseboat appeared to be floating, Deputy Winton testified the “starboard hull was in shallow water so it’s possible it was resting on the bottom.” The pontoon houseboat’s starboard hull was low in the water while the port (left) side was much higher out of the water, demonstrating the vessel’s listing. Deputy Winton also observed that the “interior cabin areas were breached and open to the elements.” Several “cabin windows and doors were 7 Matanzas Pass is within Estero Bay, Lee County, Florida. either open, broken, or missing,” allowing air, rain, or salt water into the pontoon houseboat. Further, Deputy Winton observed the pontoon houseboat did not “appear to have any sort of steering device.” He observed that although this pontoon houseboat was supposed to be equipped with two motors, the starboard motor was missing and the port motor had “damage to the cowling area [and] the bottom part was very corroded.” The port motor was “cracked in the back and everything [was] corroded on it.” Deputy Winton determined the port motor was an inoperable outboard engine. The “cables and different control mechanisms that run to where the [other] engine should be or where any sort of steering should be were broken, discarded, just hanging into the water.” As a result of all that he observed, Deputy Winton issued a Florida Uniform Boating Citation V2973718 to Mr. Janikula. In addition to including Mr. Janikula’s identification information, and the date, time, and location of the pontoon houseboat, the citation included the following description of the pontoon houseboat as “at-risk of becoming derelict.” Deputy Winton testified that this “at-risk” citation “is usually used as a sort of warning or sort of means to get somebody to fix a problem before it escalates to the point where they are issued a criminal charge for derelict vessel and a removal process is initiated.” In late November 2020, over three months after Deputy Winton issued the “at-risk” citation, Deputy Smith observed the pontoon houseboat partially submerged in Estero Bay in Lee County, Florida. Deputy Smith observed the pontoon houseboat’s pontoons under water, and the vessel was “hard aground” in three feet of water. 8 This citation contained Lee County Court Case Number 20-396456/W4 and was for an infraction which did not require a court appearance, but the payment of a fine within 30 days. This is an administrative proceeding. The undersigned was not advised of and has not relied on any action taken by the Lee County Court. Deputy Smith began an investigation of the pontoon houseboat, looking to determine if it met the criteria for a derelict vessel. Deputy Smith spoke with Mr. Janikula about the condition of his pontoon houseboat, and what his intentions were for it. In early December 2020, Deputy Smith observed the partially submerged pontoon houseboat, and again spoke with Mr. Janikula. On December 8, 2020, Deputy Smith again observed the partially submerged pontoon houseboat in Estero Bay. He saw the pontoon houseboat “was definitely in [a] wrecked condition ... sitting on the bottom. And it did not have the ability to remove itself.” The pontoon houseboat was sitting on a sandbar in two-to-three feet of water, and it was listing to the starboard side because the starboard pontoon was full of water. Deputy Smith also observed that the pontoon houseboat was missing the starboard motor and the port motor was inoperable. The cables, necessary to connect the two motors for steering, were “degraded, rotting, and laying in the water.” Deputy Smith observed the “throttle mechanism was rusted and degraded and, ... not in very good shape.” The pontoon houseboat could not move on its own. As a result of his observations, Deputy Smith located Mr. Janikula, and provided him a Florida Uniform Boating Citation, V542737. This citation included Mr. Janikula’s identification information, and the date, time, and the location of the pontoon houseboat. Additionally, the citation included the description that the pontoon houseboat was an “ABANDONED AND DERELICT VESSELS [sic].” Mr. Janikula acknowledged receipt of the derelict vessel citation and the information described in the first paragraph of the Preliminary Statement above. LCSO provided photographic evidence (Respondent’s Composite Exhibit G) of the condition of the pontoon houseboat between December 2020 and February 2021. A brief description of each photograph is provided: G-1: The front of the pontoon houseboat is listing to the starboard side, with barnacles exposed on the port hull, rub railing is broken, and port side is missing windows; G-2: The front of the pontoon houseboat is listing to the starboard side, with barnacles exposed on the front port bow; G-3: The pontoon houseboat registration number is visible, barnacles on the port side exposed pontoon above the water line are visible, rub railing is broken and coming apart, windows are broken out, and the LCSO’s Notice is visible; G-4: Starboard lower back side panel is shredded, hatch cover is missing, starboard motor is missing, throttle cables are unattached and hanging in the salt water; G-5: Starboard stern close-up of the damaged steering position, throttle cables are hanging down, starboard lower back side panel is shredded, stern back-door frame is rusted, and the back door open; G-6: Full stern view of the inoperable port side outboard motor, starboard motor is missing, starboard side steering cables laying in the salt water, and starboard lower back side panel is shredded; G-7: Navigational lights on starboard are visible, and bow appears to be a receptacle for a number of unrelated, discarded items, including a wheel and ice chest; G-8: Starboard lower back side panel is shredded, open hatches or windows are visible, port engine is out of the water, starboard motor is missing, steering cables are in the water, and pontoon houseboat is visibly listing to the starboard side; G-9: Full stern view of the inoperable port side outboard motor, starboard motor is missing, starboard side steering cables are laying in the salt water, stern back door frame is rusted and back door is open, and starboard lower back side panel is shredded; G-10: Port side pontoon is partially out of the water, rub rail is broken, windows are broken or missing, stern back door is open, port side outboard motor is out of the water, and starboard motor is missing; G-11: LCSO Notice posted on the pontoon houseboat on December 8, 2020; and G-12: Bow of the pontoon houseboat is listing to the starboard side, barnacles are exposed on the front port bow, and rub railing is broken. Mr. Janikula testified that the pontoon houseboat is “an ongoing project” of his, yet he failed to provide credible evidence of any repairs being made to it. He offered that someone was living on it and the person had a “hot shower last night.” Mr. Janikula testified that his pontoon houseboat was “currently in about 7 feet of water floating just fine. Right next to me. I can see it from here.” Mr. Janikula testified that the one outboard motor “got damaged,” his pontoon houseboat “doesn’t have any functioning engine” on it, and currently it is incapable of being moved on its own. Although he claimed the pontoon houseboat only had one motor when he purchased it, Mr. Janikula claimed the steering components were all present, and the vessel only needed one engine to steer. Lastly, Mr. Janikula testified that the pontoon houseboat was “technically ... a residential barge … it looks like a mobile home on pontoons.” LCSO’s photographs provide proof that this is not a barge as defined in section 327.02(3), Florida Statutes,9 but a pontoon houseboat, and it is in a wrecked condition. There can be no dispute that the pontoon houseboat was a “vessel” within the meaning of section 327.02(46). Based on the evidence (both testimony and photographic), the undersigned finds that at the time of the hearing, Mr. Janikula’s testimony regarding: substantial repairs having been made to the pontoon houseboat; 9 Section 327.02(3) provides: “Barge” means a vessel that does not have living quarters, is not propelled by its own power, and is designed to be pushed or pulled by another vessel. the description of the pontoon houseboat as floating in “7 feet of water”; the claim that the pontoon houseboat was sold with only one engine; and the claim that it is a residential barge, to be unpersuasive and self-serving. Further, the pontoon houseboat was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. The testimony and photographic evidence conclusively demonstrate that the pontoon houseboat was a junked and/or substantially dismantled vessel when it was observed by the deputies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County Sheriff’s Office issue a final order deeming the pontoon houseboat to be a “derelict vessel” within the meaning of section 823.11, and the Lee County Sheriff’s Office is authorized under section 376.15(3)(a) to relocate or remove it. DONE AND ENTERED this 30th day of April, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2021. COPIES FURNISHED: Gary Scot Janikula 132 Tropical Shore Way Fort Myers Beach, Florida 33931 Antonette D. Hornsby, Esquire Lee County Sheriff's Office 14750 Six Mile Cypress Parkway Fort Myers, Florida 33913
The Issue The issues to be resolved in this proceeding concern whether the City of Naples's (City) Waterway Marker Permit Application should be granted, given the requirements of Section 327.40, Florida Statutes (2005) and Florida Administrative Code Rule 68-23.105(1)(b)(3) through (6).
Findings Of Fact The Petitioner, Eric Alexander, is a resident of Collier County and a licensed boat captain. He is the owner of a charter boat business operating in Naples Bay, in Collier County waters. The Petitioner, Douglas Finlay is also a resident of the City of Naples and a recreational boater. He operates power boats and a kayak on the waters of Naples Bay involved in this proceeding. The Petitioner, James Pergola is also a resident of Naples and resident of Collier County. He is a recreational boater and uses the waters of Naples Bay for recreational boating purposes. He is also a homeowner, owning a home adjacent to Naples Bay. The Petitioner, Allen Walburn is a resident of Collier County and a licensed boat captain. He owns a charter boat business which operates in the waters of Naples Bay and Collier County. The Petitioner, Collier County, is a political subdivision of the government of the State of Florida. It operates a boat ramp and county park area on the waters of Naples Bay for use by its citizens and other members of the public. Its Sheriff Department employees patrol the waters of Naples Bay seeking to enforce relevant boating safety and other laws and ordinances. The Petitioner, Marine Industries Association of Collier County, Inc. (MIACC), is a non-profit association of businesses which are directly or indirectly involved in the marine industry on, or near the waters of Naples Bay. The members of the association and/or its customers use the waters of Naples Bay in the conduct of their businesses, employment, and for recreational boating and recreational and commercial fishing purposes. The City of Naples (City) is a unit of local government. It has authority to adopt the ordinance which triggered the dispute involved in this proceeding, based upon Section 327.60, Florida Statutes (2005). The City thus has authority to adopt ordinances regulating the operation of vessels on waterways within the jurisdiction of the City, so long as such ordinances or local laws do not conflict with the provisions of Chapter 327, Florida Statutes, and any regulations promulgated thereunder, or with other state or federal law. The City thus adopted the relevant slow speed, minimum wake boating restricted areas (slow speed zones) at issue in this proceeding. The Respondent, FWC, is an administrative agency of the State of Florida charged in pertinent part with managing the navigable waters of the state and with the consideration of waterway marker permit applications filed and arising under Chapter 327, Florida Statutes, and the related rules promulgated in Florida Administrative Code Chapter 68. The Intervenor, Conservancy of Southwest Florida (Conservancy), is a Florida non-profit corporation. Its purpose is the protection of the natural environment of Southwest Florida, including advocacy, education and research. The Intervenor, Citizens to Preserve Naples Bay (Citizens), is also a Florida non-profit corporation. Its organizational purpose is to preserve and protect the bay by actively supporting efforts it believes will further that mission. In arriving at its positions on issues affecting Naples Bay, Citizens considers questions of physical, chemical, biological, and navigational safety. The Waterway Marker Permit Application Naples Bay is a water body located within the boundaries of Collier County and the City of Naples. It is an inland water body connected to the Gulf of Mexico at "Gordon Pass." Near the seaward end of Naples Bay on its southerly margin is a connection with Dollar Bay, which extends southward of Naples Bay in the direction of Marco Island. Naples Bay contains a federally-maintained channel used for navigation and commerce. Naples Bay is both a destination and a transit waterway used by local businesses, citizens, and tourists for recreational, business, and commercial purposes. It is used for a wide variety of boating purposes and interests, including commercial fishing, commercial charter boat operations, recreational boating, and recreational fishing purposes, as well as by institutional/scientific users. There are already vessel speed zones established on portions of Naples Bay. The City of Naples, however, adopted ordinance number 04-10664 (the ordinance) creating the additional slow speed zones at issue in this proceeding. The ordinance, adopted on November 17, 2004, establishes new slow speed zones or minimum wake zones in portions of Naples Bay, Dollar Bay, and Gordon Pass. The ordinance was adopted under the authority of Section 327.60, Florida Statutes (2004), which allows a city to adopt ordinances regarding vessel operations on waterways so long as such ordinances or local laws do not conflict with the provisions of Chapter 327, Florida Statutes, or rules promulgated under that chapter. In order to implement the newly adopted slow speed zones the city applied for a Uniform Waterway Marker Permit (Permit) from the FWC on December 23, 2004, in accordance with Sections 327.40 and 327.41, Florida Statutes (2004), and Florida Administrative Code Rule 68D-23. Section 327.40, Florida Statutes, provides that: Waterways in Florida which need marking for safety or navigational purposes shall be marked [uniformly]. . . . (2)(a) application for marking . . . navigable water under concurrent jurisdiction of the Coast Guard and the division shall be made to the division. . . ." (Emphasis supplied). Section 327.40, Florida Statutes, was amended in 2000 to provide FWC with the authority to adopt regulations to implement that statutory section. Florida Administrative Code Rule 68D-23.105 was amended by the FWC in 2001, pursuant to the statutory purpose of determining which waterways need marking for safety or navigational purposes. Since the time of that amendment the Rule (Florida Administrative Code Rule 68D-23.105(1)(b)), concerning the criteria for approval of regulatory markers, now provides that a valid vessel traffic safety or public safety purpose exists for "slow speed minimum wake" speed zones under the following facts and circumstances: The Division shall find a valid vessel traffic safety or public safety purpose is presented for ordinances adopted pursuant to Section 327.60, Florida Statutes, under the following facts and circumstances: * * * (b) For a slow speed minimum wake boating restricted area if the area is: * * * Subject to unsafe levels of vessel traffic congestion. Subject to hazardous water levels or currents, or containing other navigational hazards. An area that accident reports, uniform boating citations, vessel traffic studies, or other creditable data demonstrate to present a significant risk of collision or a significant threat to public safety. * * * Fla. Admin. Code R. 68D-23.105(1)(b). The previous rules, prior to 2001, contained no similar factual criteria to those now found in the above-quoted rule. There are actually six factual criteria in the Rule, but only criteria four, five, and six, quoted above, are at issue in this proceeding, as stipulated by the parties. The FWC issued a Notice of Intent to grant the permit stating that the FWC's Boating and Waterways Section found that the criteria in their referenced rule had been met. See City Exhibit 26 in evidence. In arriving at this Notice of Intent to grant the permit application the FWC did not, however, independently make a determination or confirm that any of the factual circumstances referenced in the above Rule, and, specifically, subsections four through six of the Rule, actually existed. Rather, FWC assumed that all the statements in the application were true and issued the Notice of Intent to grant the permit. Standing Collier County is a political subdivision of the State of Florida. It expends county funds to provide for the patrol and regulation of safety on the waters of Naples Bay. It regulates Naples Bay through the patrolling of the Collier County Sheriff's Office. Section 125.01(j), Florida Statutes, grants the powers and duties to counties to "establish and administer programs of . . . navigation . . . and to cooperate with governmental agencies and private enterprises in the development and operation of such programs." Collier County also owns and operates the only county- owned boat launching facility on Naples Bay. Collier County citizens have the right to access and enjoy Naples Bay and the waters beyond Naples Bay through that access, including the Gulf of Mexico. Collier County has concurrent jurisdiction over Naples Bay and, like the other Petitioners, is concerned with recreation and enjoyment of use of the waterways of Naples Bay, including access to the Bay and adjacent waterways through traverse of the bay. The Petitioner, Eric Alexander is a resident of Collier County and has been for over 18 years. He is a licensed boat captain. He owns a charter boat business which operates in the waters of Naples Bay and adjacent waters in Collier County. He has recreational, commercial, navigational, and economic interests personal to him invested in the use of Naples Bay for both recreational and commercial purposes, as well as the access it provides to additional waterways. Naples Bay provides Mr. Alexander his only access to the Gulf of Mexico, where he takes his fishing charter parties in the conduct of his business. The proposed speed zones will have a substantial effect on his business and possibly his livelihood because the long transit times involved in the enactment of all the slow speed zones will tend to make his customers use charter boat businesses in other nearby areas that do not have to transit Naples Bay to reach fishing grounds, etc. His testimony of the substantial effect on his charter boat operations posed by the more pervasive slow speed zones was not refuted in the record. He established that his business will be substantially affected by the slow speed zones. The Petitioner, Douglas Finlay has resided in Collier County and Naples for over 10 years. He has been a recreational boater for that period of time. He has recreational and navigational boating interests in Naples Bay, including the access it provides to the Gulf and to additional waterways. He is particularly concerned that the proposed speed zone being moved from the protected area, out to the entrance to the Gulf at Gordon Pass, will adversely impact boating safety. The slow speed zone at that point will adversely impact safe boating operation because sufficient power and steerage provided by higher speed must be maintained to safely navigate the sometimes difficult wave, current, and wind conditions at the entrance to the Gulf. Mr. Finlay is directly affected in terms of his recreational boating and navigational interests by the imposition of the slow speed zones at issue. In terms of this concern, as well as, generally, the resultant long transit times through Naples Bay. The Petitioner, James Pergola resides on the waters of Naples Bay by owning a home on a canal that communicates with the bay. He has been a resident of Collier County for more than 29 years and is a recreational boater. He uses the waters of Naples Bay for all purposes related to recreational boating, including simply operating his boat on and traversing the bay when bound to other locations, as well as for fishing. The proposed speed zones will adversely affect the recreational boating use and trips Mr. Pergola takes on the waters of Naples Bay by substantially increasing transit times through the waters of the bay, a restriction he deems unnecessary from a safety standpoint. The Petitioner, Allen Walburn is a licensed boat captain and owns and operates a charter boat business. He conducts his charter boat operation in Naples Bay and adjacent waters of Collier County and the Gulf of Mexico. He has been a resident of Collier County since 1977. Mr. Walburn has commercial and economic interests which are intertwined with his navigational interests in operating his vessels in the waters of the bay. The restrictions at issue would adversely affect his access and the time of access through the waters of the bay, to additional water ways and to the Gulf. The proposed speed zones, and their adverse effect on transit times through the bay will adversely affect Mr. Walburn's charter boat business. Some days he will not be able to operate two charters in one day, which will substantially reduce his revenue. Additionally, his charter boat customers over time will tend to migrate to charter boat businesses that operate in areas other than Naples Bay and which don't have the attendant long transit times in reaching fishing grounds caused by the proposed speed zones. Thus, the Petitioner Walburn is substantially affected by the proposed permit regarding the slow speed zones, in terms of both his recreational and commercial navigational interests and economic interests related to vessel operations in the waters of Naples Bay. The MIACC is a non-profit trade association. Its members are made up of businesses which directly or indirectly operate in or are related to the marine industry in the vicinity of Naples Bay. Membership in the MIACC includes 60 or more businesses or persons located in Collier County. The members consist of recreational boaters, marina operators, yacht brokers, boat dealers, boat yards, marine construction contractors, marine professionals and charter boat businesses. The association members rely upon reasonable access and reasonable transit times to and through Florida waters and, in particular, Naples Bay. This is important to their engagement in commerce, including the selling, servicing, and maintenance of boats, marine contracting, charter fishing and general recreational boating. The members' market for their products and services, their revenues and the costs of their doing business depends substantially on reasonable public access, transit and safe use of the navigable waters in Naples Bay and the use of adjacent waters, which requires Naples Bay transit. Members of MIACC have lost some business in potential sales of boats and boat slip rentals, from customers who have elected not to locate boats or operate boats in Naples Bay because of the inconvenience caused by the speed zones. These additional speed zones have had the effect of discouraging recreational boating members or potential recreational boaters from boating on Naples Bay. At least one MIACC member has experienced several previous boaters placing their vessels with him for sale, ending their Naples Bay boating activities in the belief that the slow speed zones are, or soon will be, placed into effect. The members of MIACC will incur additional time and costs in conducting sea trials of boats they are placing into service or repairing. The proposed slow speed zones leave only a small area of Naples Bay where boats are allowed to exceed slow speed. Consequently, the proposed slow speed zone will force all boat testing to occur in one small area of Naples Bay. That fact alone will create more congestion and possibly a safety issue in that more confined small area of the bay. It will render more difficult the operation of the members' businesses, which are involved in testing boats and boat engines, and other operational systems of boats, when placed into service as part of a new vessel or when performing repair work on vessels. MIACC and its members' ability to navigate and conduct commerce in Naples Bay will be impeded by the proposed slow speed zones. They will substantially increase the time for fishing charter members to navigate to, from, and between fishing locations and will increase the time for recreational fishermen members of the association to navigate to and between their fishing grounds as well. The proposed slow speed zones will affect MIACC members by causing additional vessel congestion caused by excessively slow speeds over a longer distance, thereby potentially creating a safety issue. An additional and somewhat different safety issue will occur because the slow speed zones will reduce the maneuverability of the vessels moving at slow speeds, a different kind of safety issue than caused by vessels moving at excessive speeds, in terms of steerageway on slow moving vessels and the vessels ability to avoid collisions. The proposed speed zones will affect the members traversing Naples Bay by slow speeds increasing the risk of dangerous weather conditions. The corporate purpose of MIACC is to: represent and educate recreational boating citizens and members of the marine industry and its workforce in the promotion and protection of recreational boating as a traditional family and business past- time and element of commerce. It seeks to promote boating both commercially and recreationally as a source of business activity and tourism. It seeks to protect and enhance the environmental circumstances of Florida waterways. See MIACC Exhibit 26 in evidence. Its purposes are further to promote improved conditions on the waterways of Collier County generally, and improved operating conditions for recreational boating and the commercial boating industries as well. The interest of MIACC and its members in both commercial and recreational boating pursuits will be substantially affected if the relevant slow speed zones are enacted which would pose a significant restriction beyond the limitation already prescribed by state and local law. This is because access to fishing and recreational areas will require longer travel time, with more areas of interest to the boating public eliminated from reasonable use. This will have a negative effect on the manufacture, sale, chartering, docketing, equipping, servicing, maintenance, and operation of boats on the bay and adjacent waterways. The Intervenor, the Conservancy, is a Florida non- profit corporation organized in 1966 headquartered in Naples, Florida. Its purpose is the protection of the natural environment of Southwest Florida, including through environmental advocacy, education, and research. The Conservancy has approximately 4,100 members in Collier County. The Conservancy has conducted scientific research in Naples Bay for more than 20 years in support of its mission. It published the Naples Bay study in 1979, which was one of the first comprehensive studies of that estuary system. That study, and the research conducted by the Conservancy since, involves sampling of water in Naples Bay, primarily to monitor the water quality. Those samples are taken throughout the bay by the Conservancy staff, as well as volunteers. They usually employ a 14-foot Carolina Skiff type fishing boat to perform this work. During the course of its boating experience, conducting its sampling efforts in the bay, the Conservancy staff has encountered boat wake conditions which it believes threaten the safety of the small boat and its occupants which it uses for water sampling. It attributes those threatening boat wakes to the currently permitted boat speeds on Naples Bay and believes that slower boat speeds on the bay would make its research on the bay safer. The Intervenor, Citizens, was incorporated in 1988 as a Florida non-profit corporation. Its primary mission is to preserve and protect Naples Bay by actively opposing any projects or efforts which it believes will adversely affect the bay and by actively supporting projects or efforts it believes will help to preserve or improve the bay. Citizens considers the physical, chemical, biological, and navigational safety questions involved, in matters concerning the bay, upon which it decides to take a position. Citizens has been involved in issues regarding Naples Bay over many years, including the Naples Bay Project Committee upon which its president, Harry Timmons, sat by appointment. That committee investigated Naples Bay safety and made recommendations to the Naples City Council regarding vessel traffic congestion and vessel speed zones. Some 352 citizens members own homes on Naples Bay or on channels or canals connected to the bay. Both Mr. Timmins and Kirk Materne, members of Citizens, have taken positions before the Naples City Council on a number of occasions concerning issues regarding vessel speeds on Naples Bay. Affidavits, introduced into evidence as corroborative hearsay, support the testimony adduced by Citizens to the effect that there are members in addition to Mr. Timmins who own and operate boats on Naples Bay and are affected in some way by the issues concerning boating safety and boating speeds on Naples Bay. Both Mr. Timmins and Mr. Materne are boaters and have operated their boats on Naples Bay for many years. Levels of Vessel Traffic Congestion (Florida Administrative Code Rule 68D-23.105(1)(b)(4)) The applicant City presented the testimony of expert witness Andrew Anderson. Mr. Anderson is a Marine Consultant. Mr. Anderson is a graduate of the Coast Guard Academy and retired from the Coast Guard with the rank of Commander. He served as a boating and safety officer while in the Coast Guard and was certified as a 1,600 ton vessel master. He has captained vessels of varying sizes during his Coast Guard tenure. He has published articles and lectured on boating safety and has been recognized as an expert in boating safety, seamanship, and boating accidents in state and federal courts. He reviewed the City's exhibits, the depositions in this case, boating citations, accident reports, and Coast Guard commission records in preparing for his testimony. Mr. Anderson believes congestion is any situation with a sufficient number of vessels within a certain geographic area and, given the speeds at which they are operating, that there will be a risk of collision if any operator makes a mistake. He described an example he believed constituted congestion around marker 18, where four boats were coming into close proximity of each other, creating an "unsafe condition." Naples Bay's configuration more resembles a wide river than a bay. It is approximately 4.4 miles from marker seven, at the Gulf entrance to the bay, east and northeast to U.S. 41, the most inland extent of the bay. The bay is approximately one- quarter mile wide at its widest point. When Mr. Anderson observed conditions in Naples Bay by traversing it or a portion of it, he observed only approximately 20 to 30 boats. This was on a Tuesday afternoon for approximately two hours, some two weeks prior to the hearing; not as active a day for boating as would be a weekend day or a holiday. Mr. Anderson opined that he felt, "there is a problem with vessel traffic congestion, particularly at speed of 30 miles per hour." He believes that "the higher the speed, the fewer the vessels it takes to have a congested situation." Thus Mr. Anderson expressed the view that Naples Bay was subject to unsafe levels of vessel traffic congestion. The basis for his opinion, however, was a mere two hours he spent on Naples Bay on that Tuesday afternoon shortly prior to the hearing. Although he has a great deal of boat safety and operation expertise, as described above, he had not previously navigated Naples Bay for over 30 years until retained as an expert witness by the City. During his two-hour tour of the bay, he found the bay to be congested and yet only saw 20 or 30 boats. Mr. Anderson conceded that the limited question that he was hired by the City to answer for this proceeding was "would the ordinance improve the safety of the boating public on Naples Bay?" He stated that it was his opinion that the ordinance would improve public boating safety. He also conceded that an idle speed zone on the entire Naples Bay (not proposed by the City in the ordinance or the permit application) would also improve safety, implicitly even more. He did not concede, however, that such an idle speed zone restriction for the entire bay would be appropriate. Other subjective testimony, offered by the Petitioners, concerning assessment of vessel traffic congestion was provided by a number of witnesses who collectively have spent thousands of hours in navigation of Naples Bay at various times of the day, week, and year. Those witnesses, such as Captain Alexander, with more than 1000 hours per year navigation of Naples Bay; Captain Walburn, with more than 30 years operating on Naples Bay; Police Officer Ayers, who patrolled the bay five days a week for the last three years; and the Petitioners Pergola and Finlay, collectively testified that it was their opinion that the bay was not subject to unsafe levels of vessel traffic congestion. Objective evidence concerning vessel traffic congestion and representing an objective standard therefor, was presented by Petitioner MIACC's expert witness, Dr. Ed Baker. Dr. Baker has extensive site-specific knowledge of Naples Bay as he has previously conducted two vessel traffic surveys of the bay. These surveys analyze traffic patterns, numbers of vessels navigating the bay, and the inventory of vessels with access to the bay. His previous two studies were based on the level of service methodology (LOS) similar to that used with studies of automobile traffic. The LOS methodology was first employed and used in Naples Bay in a study by Heniger and Ray, Inc., a consulting firm commissioned by the City of Naples to measure boat capacity on Naples Bay. The LOS methodology is used to measure the capacity of a system, in this case Naples Bay, and the demand for its use of that system. The LOS for any particular system is an "indicator of the extent or degree of service provided by a system," and it indicates the capacity per unit of demand for the facilities. This methodology showed the carrying capacity of Naples Bay to be 528 vessels per hour (this is aside from the question of what level of congestion that represents). In a roadway transportation system, the relationship between road capacity and the number of vehicles on the road is described by letters A to F. Each letter represents a range of vehicles using the road in comparison to the road capacity. The A through F LOS categories are based on several operating conditions, such as traffic flow, number of vehicles, speed, and maneuverability. See MIACC Exhibit two in evidence. The Heniger and Ray study applied the same LOS methodology to boat traffic on Naples Bay. The Heniger and Ray study, as well as Dr. Baker's studies, defined A to F LOS categories as follows: Level A - represents a free flow condition in which there is little to no restriction on speed or maneuverability; Level B - a zone of stable flow but the presence of other boats begins to be noticeable. Freedom to select speed is relatively unaffected; Level C - a zone of stable flow; speed and maneuverability becomes affected at this level as a result of other boats; Level D - usually a stable flow of traffic, but a high density of boats cause significant restriction on speed and maneuverability; Level E - traffic in an unstable flow representing conditions at or near capacity of the system with speeds and maneuverability severely reduced because of congestion; Level F - traffic in an unstable flow with speed and maneuverability extremely limited by severe congestion; frequent occasions of no forward progress. Each level of service category is defined by increasing values of the volume to capacity ratio, such that LOS A described the situation where up to 15 percent of Naples Bay's carrying capacity is using Naples Bay. Therefore, under LOS A, up to 79 boats per hour would be using Naples Bay. LOS B would describe a situation where up to 27 percent of Naples Bay's carrying capacity LOS is using Naples Bay or 143 boats per hour. LOS C would describe a situation where up to 43 percent of Naples Bay's carrying capacity LOS is using Naples Bay or 228 boats per hour. LOS D would describe up to 64 percent of the carrying capacity, or 338 boats per hour using Naples Bay. LOS E would then equate up to 100 percent of the carrying capacity or up to 528 boats per hour using the bay, and LOS F would describe a situation where boats would exceed the carrying capacity or more than 528 boats per hour resulting in gridlock. The LOS methodology is an objective method by which to analyze vessel traffic on the bay established by the testimony and evidence elicited through Dr. Baker, as well as Dr. Staiger. Dr. Baker's initial Boat Traffic Studies and Models conducted in 1999 and 2002 concluded that at peak times Naples Bay is at an LOS A or B level on 10 out of 13 segments of the bay. Of the remaining three segments, at those times, the LOS level was C. Prior to the hearing in this case, Dr. Baker again conducted a study and survey of the bay to assess the current boat traffic situation. He described that his recent 2005-2006 analysis showed that the LOS for the bay during a weekend in September 2005, and a holiday weekend in January 2006, was at an LOS A or B level. It is noteworthy that the Collier County Manatee Protection Plan adopts LOS C as the acceptable level of service for Naples Bay. The Naples Bay boat traffic studies and Dr. Baker's testimony indicate that there is no unsafe level of vessel traffic congestion on Naples Bay. Major Paul Ouellette of the FWC, testified as to his finding that the permit application with its supporting documentation, and additional data, was insufficient to allow him to conclude that the new speed zones were warranted based upon an unsafe level of vessel traffic congestion. The City of Naples Marine Unit Officer who testified, Russ Ayers, has over three years of daily patrolling experience on Naples Bay. He found that Naples Bay is not subject to unsafe levels of vessel traffic congestion. The Naples Bay traffic studies, including those of Dr. Baker and Dr. Baker's testimony, are more objective in terms of applying an objective standard and methodology. The methodology is deemed to be acceptable for practioners and by practioners in Dr. Baker's field of expertise. Because of the more extensive opportunity for observation of Naples Bay and its boat traffic and boat numbers, this testimony and evidence and that of Major Ouellette, Officer Ayers and the Petitioners Alexander and Walburn, is deemed more compelling, credible, and persuasive, than that offered by Mr. Anderson, Mr. Timmins and other evidence offered by the City or Intervenors. Safety concerns caused by boat wakes, boat speeds, and careless, discourteous or illegal operation by boat operators, which cause safety hazards, or fears of safety hazards, do not equate to unsafe levels of vessel traffic congestion. The preponderance of the persuasive evidence establishes that Naples Bay is not subject to "unsafe levels of vessel traffic congestion." Hazardous Water Levels, Currents or Other Navigational Hazards (Florida Administrative Code Rule 68D-23.105(1)(b)(5)) The Respondents and Intervenors contend that the proposed slow speed zones are needed in the Naples Bay area because of hazardous water levels, currents or that the area contains other navigational hazards. The City seems to contend that boats which are accelerating or decelerating upon leaving or entering the existing slow speed zones themselves constitute "navigational hazards." While the term "navigational hazard" is not defined in the statutes or rules at issue, it has been defined by the U.S. Coast Guard in terms of "hazard to navigation" as "an obstruction, usually sunken, that presents sufficient danger to navigation so as to require expeditious, affirmative action such as marking, removal, or re-definition of a designated waterway to provide for navigational safety." 33 C.F.R. § 64.06 (2005). A "navigational hazard" within the meaning of Florida Administrative Code Rule 68D-23.105(1)(b)(5) equates in meaning to be the same as a "hazard to navigation" treated in the above federal rule related to the Coast Guard's jurisdiction. While boats operating under power might, under certain circumstances, (chiefly improper, careless, discourteous, or illegal operation,) be dangerous to the safety of other boaters or users of a waterway, they do not comport with the generally accepted sense of what "navigational hazard" means. It means a fixed object which poses a hazard to navigation of any or all boats operating under power or sail or human propulsion; examples being a sunken vessel, an oyster bar, a shoal, a stump or any other object which might pose a danger if struck by a moving vessel. Some witnesses, such as Captain Walburn, Dr. Staiger, witness Davis, and witness Timmins described such factors as a dock in the channel (encroaching somewhat apparently) between marker 21 and marker 23, narrow or serpentine portions of the Naples Bay Channel, and strong tidal currents in several areas, There is no persuasive evidence, however, to show these are anything other than normal physical complications to be contended with by a reasonably prudent mariner, operating a vessel in the areas in question. They do not pose hazardous conditions, in terms of water levels, currents, or navigational hazards. Thus, there is no preponderant, persuasive evidence that the area of the proposed slow speed zones includes any areas that are subject to hazardous water levels, currents, or contains other navigational hazards. This is established by the testimony of Officer Ayers, among others. Major Ouellette established with his testimony that the permit application with supporting documentation and additional data he reviewed was not sufficient for him to be able to conclude that the new speed zones were warranted because of the area being subject to hazardous water levels, currents, or because it contains other navigational hazards. Thus the preponderant evidence demonstrates that the proposed slow speed zones are not for areas that are subject to these hazardous factors. Whether there is a Significant Risk of Collision or a Significant Threat to Public Safety as Demonstrated by Accident Reports, Boating Citations, Vessel Traffic Studies, or Other Creditable Data Florida Administrative Code Rule 68D-23.105(1)(b)(6) The City adduced testimony from its expert witness, Mr. Anderson, as well as its other witnesses, as did the Intervenors, to the general effect that slowing of boat speeds on Naples Bay would render the bay safer for boat operation and traffic. Such testimony from Mr. Timmins and others, recounted anecdotal incidents where boating accidents occurred. Several of these caused injuries, boat damages, threw boating passengers out of their seats, on one occasion swamped a small boat, and caused another boat to take on water, due to excessive boat wakes of passing vessels. Mr. Timmins has boated on the bay for many years and does not feel safe or comfortable at certain times and in several areas in the bay. He described two places where the channel is significantly narrow and where he described what he felt were unsafe conditions caused by converging boat traffic, such as at the convergence of the Naples Bay channel with the channel entering into Dollar Bay. It is logical to assume that if boat speeds could effectively be substantially reduced or possibly the horsepower of boats or the size of boats using Naples Bay could be drastically reduced, or the numbers of boats using the bay substantially decreased, that Naples Bay could be rendered "safer." However, rendering Naples Bay simply "safer" is not the factual showing required by the above-referenced rule (or the legal standard imposed by it in order for the FWC to issue the waterway marker permit). Rather, the above-referenced sources of information, described in the rule, must demonstrate a significant risk of collision or a significant threat to public safety in order to demonstrate a need for the imposition of the slow speed zones. Accident Reports The MIACC entered its Exhibit 31 into evidence. Exhibit 31 is a summary chart analyzing vessel accidents occurring in Naples Bay between the years 2000-2004. It was prepared by the FWC. Major Ouellette of the FWC, in his expert opinion, concluded that while a total of 17 vessel accidents occurred over that approximate five year period, only four of them could be relevantly linked in their cause and effect to the boat speeds involved, such that new slow speed zones might have prevented those four accidents (assuming the operators involved were complying with the regulation). Indeed, most accidents occurred with vessels already operating in existing slow or idle speed zones or attempting to dock. The evidence adduced by the City and the Intervenors referenced individual reports of some eight accidents occurring over the five-year period, which they maintain are relevant, such that new slow speed zones might have prevented the accidents. Dr. Baker performed an analysis correlating the number of accidents to the number of vessel trips taken in Naples Bay, however. Dr. Baker's analysis using the eight accidents contended to be relevant by the City and the Intervenors, rather than Major Ouelette's finding of four relevant accidents, determined that there was one boat accident for every 67,500 boat trips in Naples Bay during that period of time. One accident per 67,500 boat trips does not establish a significant risk of collision or significant threat to public safety in Naples Bay predicated on the accident reports. Eight accidents over a five-year period is not a "significant risk of collision or significant risk to public safety." The City of Naples Police Department's Marine Unit is charged with enforcing regulations on Naples Bay. It monitors and compiles reports of boating accidents and makes yearly summaries thereof. If the Marine Unit identifies or experiences a significant risk of collision or threat to public safety due to accidents, then additional enforcement action will be taken such as dispatching additional officers to patrol the bay, changes in their schedules or other efforts to reduce the risk or threat concerning collision or public safety. No such action has been taken by the Marine Unit in terms of additional enforcement efforts because, as established by Lt. Traczyk, it experienced no significant risk of collisions or treats to public safety. If such additional enforcement actions were taken and they did not successfully reduce the risk of collision or threats to public safety, the police department's Marine Unit would inform its superiors, such as the chief of police or other officials, that additional measures, such as more stringent regulations, were needed. The City police department, through Chief Moore, however, has not informed or notified the City manager, City counsel or other City officials that additional regulations were needed to address any safety issues on Naples Bay. It did not deem such issues to be significant enough. No Marine Unit Officers have informed their commanders that safety issues existed on the bay because of accidents or congestion of boats. The police department therefore has never suggested or recommended additional speed zones because of accidents or vessel traffic congestion or significant risk of collision or threats to public safety. Major Ouellette established, with his expert testimony, that the accident data did not demonstrate "a significant risk of collision or significant threat to public safety." Thus, the preponderance of persuasive evidence regarding accident data and experience on Naples Bay does not demonstrate that a significant risk of collision or significant threat to public safety exists on the bay. Boating Citations An analysis of the boating citations found approximately 180 citations issued per calendar year for the bay. The vast majority of these citations were issued for vessels violating existing slow speed or idle speed zones. Since the vast majority of citations are issued for violators operating their vessels in existing slow speed, minimal wake or idle speed zones it cannot logically be concluded that the addition of speed zones would reduce boat operators' violations of boating speed limits, whether of the present ones or those proposed. Thus, it has not been established how the fact of the boating citations, in evidence, served to demonstrate a significant risk of collision or a significant threat to public safety, implicating a need for additional speed zones. The fact of the boating citations may demonstrate an enforcement issue or a boat operator education issue, but they do not demonstrate a need for additional speed zones. In fact, to the contrary, Major Ouelette, in his expert opinion, which is accepted, established that boating citations were insufficient to support a conclusion that new slow speed zones were needed. Vessel Traffic Studies As found above, Dr. Baker's testimony and his vessel traffic studies and analysis demonstrate that Naples Bay is operating below its capacity and essentially at LOS A and B. Thus the vessel traffic studies in evidence do not demonstrate "a significant risk of collision or significant treat to public safety" on Naples Bay. Whether "Other Creditable Data" Represents a "Significant Risk of Collision or a Significant Threat to Public Safety" The City's expert witness, Andrew Anderson, opined, based upon his review of the permit application and its supporting data, coupled with only a two-hour observation and experience of conditions on Naples Bay, that the areas proposed for the pertinent speed zones did present a significant risk of collision or significant threat to public safety. The City's own Marine Unit police officer, Russ Ayers, has had more than three years' experience of daily patrols on the water on Naples Bay. He found no significant safety issues on Naples Bay, nor any significant risk of collision or threat to public safety on the bay. Additionally, the Petitioner's witnesses, Police Chief Moore and Lt. Traczyck, determined that there were no significant safety issues on Naples Bay and that a significant risk of collision or of a threat to public safety did not exist. These witnesses established that if the Police Department Marine Unit personnel identify or observe a significant risk of collision or threat to public safety then additional enforcement action or additional regulation would be taken, as found above, in order to alleviate the risk. The Marine Unit has not seen fit, due to its observances, to embark on such additional enforcement actions. Additionally, two Collier County Sheriff's Department Marine Unit Deputies, Rocco Marion and Joe Scalora have extensive experience operating and observing boat traffic and Marine conditions on Naples Bay. They have found no significant risk of collision or significant threat to public safety on Naples Bay. Because it was based upon thousands of hours operating vessels on Naples Bay, at all times of the day, week and year, the testimony of Capt. Alexander established that the bay does not experience a significant risk of collision or threat to public safety. His testimony is corroborated by that of Major Ouelette, as found above. In summary, the testimony and evidence adduced by the Petitioners is more credible, persuasive, and compelling than that of the Respondents and Intervenors. It is accepted as the most "creditable data" in establishing that the proposed slow speed zones are not in areas where accident reports, uniform boating citations, vessel traffic studies, or other creditable data demonstrate a significant risk of collision or significant risk to public safety.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: that a final order be entered by the Florida Fish and Wildlife Conservation Commission denying the subject waterway marker permit. DONE AND ENTERED this 22nd day of December, 2006 Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006. COPIES FURNISHED: Elise M. Matthes, Esquire Captain Allen Richards, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Frank E. Matthews, Esquire Kent Safriet, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314-6526 Douglas Finlay 3430 Gulf Shore Boulevard North, No. 5H Naples, Florida 34103-3681 Jeffrey A. Klatzkow, Esquire Colleen M. Greene, Esquire Collier County Attorney's Office 3301 East Tamiami Trail Naples, Florida 34112-4902 Allen Walburn 678 14th Avenue South Naples, Florida 34102-7116 Eric Alexander 654 Squire Circle Naples, Florida 34101-8352 Jack Hall 2675 Bayview Drive Naples, Florida 34112-5825 James Pergola 1830 Kingfish Road Naples, Florida 34102-1533 Dave Sirkos 750 River Point Drive Naples, Florida 34102-1400 Mimi S. Wolok, Esquire 1112 Trial Terrace Drive Naples, Florida 34103-2306 Robert G. Menzies, Esquire James D. Fox, Esquire Roetzel & Andress 850 Park Shore Drive, Suite 300 Naples, Florida 34103 Ralf G. Brookes, Esquire 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 Michael R.N. McDonnell, Esquire McDonnell Trial Lawyers 5150 Tamiami Trial North, Suite 501 Naples, Florida 34103 Ken Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue Whether respondent discriminated against petitioner on account of his race in terminating his employment as a glass bottom boat captain at Silver Springs? Whether Emma Hawkins should be allowed to intervene? If so, whether respondent discriminated against intervenor on account of her race in failing to promote and ultimately in discharging her?
Findings Of Fact On January 1, 1989, FLAC acquired Silver Springs and Wild Waters, an adjacent tourist attraction dating to 1977 or 1978. In or near Ocala, Florida, both properties had belonged to Florida Leisure Acquisitions, Inc., who had acquired them from American Broadcasting Company some five years earlier, in a "leveraged buyout." FLAC also acquired Weeki Wachee in 1989. T.449. Thomas Cavanaugh, who started as a vice-president and general manager in 1973, survived both changes in ownership, and had effective control over a unified personnel system until his departure in 1990. As late as 1973, everybody who worked at Silver Springs as a glass bottom boat captain was black. When FLAC acquired Silver Springs, five of twelve glass bottom boat captains were black. At the time of petitioner's discharge on June 21, 1989, seven of the boat captains were black. The number had fallen to three by November of 1990. Hiring Patterns Most of the jobs at Silver Springs require little or no skill, and this has been true at all pertinent times. Boat captains needed only to be able to deliver a spiel or learn a script and handle a boat. Maintenance and food service positions were predominantly unskilled. In all these areas, there were also some positions for managers or supervisors. Between December 7, 1987, and May 6, 1991, inclusive, respondent or its predecessor hired 104 boat captains or guides, and offered jobs as boat captains or guides to 20 others who did not accept. None of those who refused offers and only one who accepted was black. Nine of 520 persons who applied for these positions during this time period were black. In late 1989 and early 1990, blacks applying for other positions at Silver Springs comprised a significantly higher proportion of the applicants for these other positions. In the early part of 1990, blacks accounted for 6.95 percent of applicants for all jobs at Silver Springs, up from the latter part of the year before. Treating the population between 15 and 64 as a proxy for the civilian labor force, the civilian labor force in the area was, according to 1980 census data, 14.7 percent black, a percentage that had fallen by 1990 to 12.7 percent. Blacks comprised 11.1 percent of the Marion County population 15 and older in 1990, and 16.8 percent of those who found work through the Florida State Employment Service in the period from July of 1990 through June of 1991. A labor economist called by petitioner testified that the discrepancy between the percentage of blacks in the flow of applicants for work as boat captains or guides and the percentage of blacks in the work force in Marion County permitted an inference "that there is . . . probably some barrier to entry for individuals to apply," Fresen Deposition, p. 21, for those positions. The same witness was also willing to speculate, id. at 54, that the discrepancy between the percentage of blacks in the flow of applicants for boat captain or guide positions and the percentage of blacks in the flow of applicants for other positions at Silver Springs "may be . . . [attributable to t]he channelling of applicants for navigational positions into other positions." Id. at 55. Respondent attributed the conceded decline in black applicants for work at Silver Springs to better opportunities increasingly available elsewhere in Marion County, including positions at a Martin-Marietta plant with 1800 employees, at Certified Grocers with 800 employees, at Energy One and at Federal Motors, each with 1100 employees in the community, and at a K-Mart Distribution Center with two or three hundred employees. T.440-1. Glass Bottom Boats For several years, perhaps since 1957, U.S. Coast Guard regulations have required that passengers on glass bottom boats at Silver Springs be told about life jackets on board, and boat captains have been responsible for doing this, before setting out. Otherwise, until a few years ago, each glass bottom boat captain had broad discretion about what he did or did not say to passengers on board. On July 1, 1957, when petitioner David Faison, who is black, began work for one of respondent's predecessors in interest as a glass bottom boat captain (or driver), each captain was required to compose a talk to deliver to glass bottom boat passengers. As a new recruit, Mr. Faison read the book "Eternal Springs" and rode with other captains, before leading his own boat tours, pointing out flora and fauna and sharing information about the springs. An Easter Outing Jim Schorr, then FLAC's new chief executive officer, took his family for their first ride on a glass bottom boat at Silver Springs on Easter Day 1989. They "went down on the glass bottom boat dock, and they took the first boat that was available and that happened to be Riley Williams' boat." T.526. Afterwards Thomas Cavanaugh summoned Riley Williams, a black boat captain with more than 30 years' experience, and Michael Jacobs, respondent's director of operations, to his office. "Riley, what happened? What happened with your trip, Riley?" he asked. "We just talked to Jim Schorr. He said it was a terrible trip." T.526. Surprised and visibly shaken, Mr. Williams reported that "Mr. Schorr even told me my trip was good," (T.527) but allowed that he had been nervous. Mr. Cavanaugh told him to take the afternoon off and said, "Riley, we're going to go ahead - we're going to help all the drivers. We're going to hire a drama coach, and it will help everybody out." Id. Standardization David London, the new drama coach, prepared the first version of a script the boat captains were asked to commit to memory, or at least to follow closely as a guide when giving tours. As requested, petitioner, along with other boat captains, made suggestions for improving the script. T.251, 521. At a meeting on or after May 2, 1989, a revised script was distributed to assembled boat captains, and Mr. Schorr announced "that he wanted them to learn the script, and if they chose not to learn the script, that they could find work elsewhere." T.484. No deadline was given. T.44, 429. Whether petitioner Faison was in attendance is unclear. T.294. Riley Williams now works on the grounds at Silver Springs, landscaping and gardening. His pay is no less than if he had remained a boat captain. He asked for a transfer because he felt he "really wasn't coming up to par of what they wanted . . . [from boat captains] and the time was closing in " T. 581. Dockmaster A black man, Willie Barr began as a glass bottom boat captain at Silver Springs in 1974. Except for a hiatus that began in 1980 and ended in 1981, he continued in respondent's employ (or that of a predecessor in interest) until November 18, 1989, when he retired as dockmaster, a salaried position he first assumed in 1982. As dockmaster, Mr. Barr reported directly to Mike Jacobs, the white man who worked as respondent's director of operations. Mr. Barr had overall responsibility for both jungle cruise and glass bottom boats; and particular responsibility for scheduling glass bottom boat captains' work and for maintenance of the glass bottom boats. A separate maintenance department actually did the work. He also piloted, loaded, unloaded and tied up glass bottom boats. Mr. Barr retired at age 52 at least partly because of high blood pressure, a malady of which both he and Mr. Jacobs had become aware in early 1989. T.299, 481. During the months before he stepped down, Mr. Barr came to Mr. Jacobs on several occasions, and told him "about the stress he was under at the boat dock, the problems he was having with the drivers, a new company taking over and all the changes that were taking place." T.481. In May of 1989, Mr. Jacobs asked Mr. Utz, a decorated Navy veteran who had worked at Silver Springs longer than Mr. Barr, "to give Willie a hand." T.371, 481-2. At the time of this request, Mr. Utz, who is white, was "at the jungle cruise most of the time running the jungle cruise operation," (T.298) as lead or "manager of the jungle cruise." T.368. Mr. Barr viewed Mr. Utz, before May of 1989, as his assistant, as did every glass bottom boat captain who testified on this point. But management witnesses insisted that Mr. Utz's position "at the jungle cruise" was equal in rank to that of glass bottom boat dockmaster, the position Mr. Barr held. T.472. Although Mr. Utz worked for an hourly wage before (and, initially, after) the change in May of 1989, Mr. Utz's remuneration exceeded Mr. Barr's salary significantly. In addition to supervising jungle cruises, Mr. Utz trained boat captain recruits. Respondent gave Mr. Utz no pay raise in May of 1989, when his broader responsibilities seemed to most to entail greater authority. The company's chief executive officer acknowledged that a change in the pecking order occurred. T.455. Mr. Barr began reporting to Mr. Utz in May of 1989. T.275. On May 7, 1989, Mike Sentman took over as lead for jungle cruise operations. Response to Petitioner's First Set of Interrogatories, No. 16. Glass bottom boat drivers considered Mr. Barr their supervisor before, but not after, the time Mr. Utz undertook his new role in glass bottom boat operations. T.42, 53- 4, 57. Ultimately Mr. Utz assumed a new title, supervisor of boat operations (T.295, 372), and filled a newly created position, which respondent never advertised, even to other employees. He continued to train all new boat captains before they took a test the U.S. Coast Guard required, drawing on his long experience with boat handling. Only in January of 1990, after Mr. Barr had retired, however, did Mr. Utz acquire his present title and become a salaried employee. T.372. We Are Not "Edutained" On Tuesday, June 20, 1989, the day David Faison returned from a two- week vacation, David London rode on his boat and listened to what petitioner said to the tourists. Unfavorably impressed, he told Donald Utz afterwards, "Wow, that was terrible. That was the wors[t] yet." T.378. That afternoon Donald Utz and Michael Jacobs sent Robert Sinkler, Jr., at the time employed in respondent's "Edutainment" program, on a boat ride with petitioner, with instructions to videotape petitioner's performance. Virtually without interruption, petitioner (who mistook Mr. Sinkler for a tourist) was videotaped for the duration of the trip. Received in evidence as Respondent's Exhibit No. 1, the videotape records petitioner's remarks, delivered in a sometimes unintelligible singsong. They bear scant resemblance to the prescribed script, and include no reference to life jackets. On other occasions, however, petitioner did advise passengers of the life preservers on board. T. 278. David Faison was asked the next day to join Messrs. Jacobs and Utz, in viewing at least a portion of the videotape. In the discussion that followed, petitioner, who was said to be good-natured ordinarily, expressed resentment at having to use the script, which Mr. Jacobs took as a refusal to do so. Petitioner is "a person that would tell you what he thought." T.451. He terminated petitioner's employment on the spot, although Mr. Faison was generally seen by his superiors in the organization as not the type of person to be insubordinate. T.450-451. The day Mr. Faison was discharged Willie Barr, the dockmaster, asked to see the videotape, after he learned from other boat captains that petitioner had been sent home. Mr. Barr watched part of it in the company of Don Utz, who told Mr. Barr that petitioner had been discharged for failure to use the assigned script. T.295. Mr. Utz "didn't really indicate that" (T.295) respondent had refused to use the script. Before petitioner's discharge, Mr. Utz had told Virginia Phillips that he did not know how the black boat captains were going to do because they were difficult to understand. T.51. He also told her he did not want her going to "that area of the city," (T.47) which she took to mean the black residential area. She had recently travelled there when she drove a black boat captain, Alphonso Sears, home. Insubordination was (and remains) a recognized ground for dismissal. T.293, 303. But a white glass bottom boat captain was not dismissed despite refusing to be "cross-trained" as a boat captain for two of the three other rides offered by FLAC, even though he had originally been told that "cross training" for all three was mandatory. T.108. The white employee did train as a boat captain for one of the three other rides. He was told, three weeks before the hearing, that training for the other two was not required. T.109. Another boat driver, Virginia Ferguson, testified that she "was told recently all boat drivers needed to be cross-trained" (T.175) to act as guides on all four rides. T. 176. A second white boat driver also refused cross- training with impunity. T.420. But nobody else was shown to have insisted on giving the glass bottom boat tour his own way, without using the prescribed script. Respondent's newly installed chief executive officer had personally decided and publicly announced that all glass bottom drivers were to use the script. Recruitment Efforts Four times petitioner tried unsuccessfully to get in to see Mr. Cavanaugh in an effort to regain the job he had held for more than three decades. At hearing, Mr. Cavanaugh characterized his failure to talk to petitioner about his discharge as an "error" (T.452) that he attributed to the emotional drain of having himself to terminate the employment of so many people he had worked with for a long time. David Faison was one of approximately twenty employees FLAC discharged in 1989, most of whom were managers. "The new management was making a sweep." T.449. Like his brother David, Roosevelt Faison has worked as a boat captain at Silver Springs for many years. He began on May 4, 1956, and worked full-time until 1989, when he chose to cut back to two days a week. An average or above average employee (T.276), his evaluations have been consistently "good" or "excellent." In May of 1989, he told Anne Dansby, a white woman who worked for respondent that "the few blacks . . . [still employed] felt like they w[ere] not really wanted in the park." T.125. She apparently relayed the substance of this conversation to Tom Cavanaugh, who later brought up the subject with Mr. Roosevelt Faison, agreeing that the number of black employees had dropped. Mr. Cavanaugh told Mr. Roosevelt Faison that he "was dead on the money, but it wasn't done intentionally." T.126.36. On the third or fourth day after his arrival at Silver Springs, Thomas Cavanaugh ordered an end to racially segregated bathrooms at Silver Springs. He personally included a sledge hammer in an attack on a urinal reserved, until its destruction, for the use of black men. Within months of his arrival, he "retired" the white supervisor of glass bottom boats and replaced him with a long-time black employee. He sought to recruit black employees through the school system and enlisting the assistance of black community leaders. These efforts antedated his discussion of the situation with Roosevelt Faison, and intensified after their discussion. Lay-Off On a Monday in July of 1989, when Mr. Roosevelt Faison reported to work, he found a note with his paycheck, which said, "Roosevelt, you are off until notified to come back to work." T.127. When he spoke to Ms. Dansby about the note, she called Mike Jacobs, but he was reportedly too busy to talk to Mr. Roosevelt. Ms. Dansby then called Mr. Utz, who did speak to Mr. Roosevelt Faison, first telling him, "It's just slow business, and we're just cutting back," (T.129) then referring him to Willie Barr, who was not at work that day. The next day, when Roosevelt Faison spoke to Mr. Barr by telephone, Mr. Barr rescinded the lay-off. Although he had not recommended the lay-off, (T.277) Mr. Barr had written the note to Mr. Faison ("on Roosevelt's time card" T.305) at Mr. Utz's behest. T.307. Mr. Roosevelt Faison did not work that week, but he was paid for a half day (presumably because he had come in Monday.) He resumed working his wonted Mondays and Tuesdays the following week. McCants Charlie McCants, who is black, went to work for respondent or a predecessor in interest in 1959 in the deer park, feeding and otherwise taking care of the animals there. He also mended fences and did other maintenance, until his transfer in 1985 to the wildlife section of the attraction. There he did much the same thing, although for different animals, among them giraffes, to whom he had to give shots. He was paid the same thing in the wildlife section as he was making in the deer park before the transfer, although he never supervised anybody in the wildlife section, as he once did for a while in the deer park, without actually holding a supervisor's position. He and Bill White, who is white, were relocated at the same time. Management felt they had both become too often hard to find in the deer park. Emma Hawkins Emma Hawkins began work at Silver Springs in the food and beverage department in May of 1974. In September of 1976, she resigned to go to junior college, but she returned to her job in November of 1977, and was promoted the following month to lead. She was promoted a second time -- to unit coordinator -- in March of 1979, and a third time -- to supervisor -- in August of the same year. She viewed her transfer in February of 1990 to the food and beverage department at Wild Waters as a fourth promotion. T.185, 198. She did not, however, receive every promotion for which she applied. She was passed over in favor of another black person for a job "managing the warehouse," (T.188, 489) and lost out, again to another black applicant, when she applied for an administrative position in the front office. T.188, 489. In January of 1989, she received the last in a series of merit pay raises. More than once, she applied unsuccessfully to become assistant manager of the food and beverage department. The last time she applied to be assistant manager of the food and beverage was the spring of 1989. T.188. The position remained open until Shari Wynkoop, a white woman who had not previously worked at Silver Springs, began as assistant manager of the food and beverage department on June 28, 1990. T.479. At the time of her transfer to Wild Waters, Ms. Hawkins had charge of a restaurant at Silver Springs, The Outback, where she supervised some 20 employees, more in the summertime. T.299-301. At Wild Waters, she had responsibility for five food facilities and up to 50 employees. Id. She had "charge of hiring, firing, inventory purchasing, schedules, supervising, cooking, [and] cash control." T.186. At least after the transfer, many of the assistant manager's duties devolved on Ms. Hawkins, until Ms. Wynkoop took over. A few months before the transfer, Robert Santillana, the food and beverage director, had given Ms. Hawkins a written reprimand because Tina Balboni, whom she supervised, had been permitted to work with "NO HAT, SCARF OR NAME TAG." Petitioner's Exhibit No. 8. On a "CAST MEMBER COUNSELING FORM," Mr. Santillana warned that another such dereliction would result in further counseling. Id. Money Bags The Wild Waters operations manager's morning routine included a trip from Silver Springs to Wild Waters with locked bags full of cash for the various Wild Waters cash registers. He put the money bags needed for the operations Ms. Hawkins supervised in a milk crate in his office. She usually took the crate herself from there to her office in the back of the Surf's Up restaurant, before distributing the money to cashiers. Ms. Hawkins had a door lock installed -- there was none when she started at Wild Waters -- but she did not always lock her office door. An electronic timing device for one of the water slides at Wild Waters was located in her office, and the operations manager needed access to reset the timer. She spent a certain amount of time out of her office but in close proximity. Ms. Hawkins was told on her return (after two days off) to work on or about August 10, 1990, that $98.16 had not been accounted for on or about the evening of August 8, 1990, and that a cashier had quit the day after the loss was discovered. She relayed this information to Mr. Santillana, who did not seem particularly concerned at the time. But Mr. Santillana gave her a written reprimand when, sometime within a few days of August 8, 1990, approximately $400 was taken from an unlocked money bag a cashier left in her unlocked office, in violation of prescribed procedure and apparently without Ms. Hawkins' knowledge. This loss occurred on a Friday. Mr. Santillana, who did not learn of it until the following Monday, was angry that Ms. Hawkins had not succeeded in reaching him over the weekend. She had standing instructions to report major losses to him as soon as possible. On August 16, 1990, he and Ms. Wynkoop went to Ms. Hawkins' office and found it unlocked. Nobody was in the office, but a milk crate full of money bags was in plain sight. He went straight to the front of the restaurant and asked Ms. Hawkins to come to his office the following day. Later he wrote a memorandum, memorializing his findings on August 16, 1990, recounting the loss a week or so before of $98.16, and terminating her employment. August 16, 1990, was the last day Ms. Hawkins' worked for respondent. Ms. Hawkins was not the first to lose a job with respondent for (apparent) failure to abide by prescribed cash handling procedures. On occasion employees were discharged for a single (apparent) breach of such procedures. Ms. Hawkins (who had not yet clocked in when Mr. Santillana accosted her on the morning of August 16, 1990) noticed that a trusted employee had a good view of her office door, but did not bother to check whether it was locked, before going to help elsewhere in the facility, where she was needed.
Recommendation It is, accordingly, RECOMMENDED: That FCHR enter a final order denying the petition for relief. That FCHR enter a final order denying the petition to intervene. DONE and ENTERED this 30th day of November, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1-10, 15, 16, 17, 18, 21, 24, 25, 32, the first two sentences of No. 33, Nos. 34, 35, 57, 58, 63, 64, 65, 69- 74, 77-82, 84, 86, 87, 90-93, 95, 98, 99, 100, 105-112, 115, 116, 117, 120-124, 127, 129, 130, 131, 132, 134, 138 and 139 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 11, the CEO was Jim Schorr. Petitioner's proposed findings of fact Nos. 12, 13, 14, 20, 22, 26, 28-31, 59-62, 66, 67, 68, 76, 83, 85, 88, 89, 94, 102, 103, 104, 118, 119, 126, 128, 135, 136, 140, 143 and 144 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 19, the weight of the evidence established that petitioner did not give the warning on June 20, 1989. With respect to petitioner's proposed findings of fact Nos. 23, 36, 37, 96, 97, 101, 125 and 142, the witnesses testified as reported. Petitioner's proposed findings of fact No. 27, the last sentence, of No. 33, Nos. 75, 113 and 141 have been rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed findings of fact Nos. 36-56, the case has been decided on the assumption, pro hac vice, that race discrimination did take place at some point. With respect to petitioner's proposed finding of fact No. 114, the transfer occurred in February. With respect to petitioner's proposed finding of fact No. 137, she had not been performing as assistant manager for ten years. Respondent's proposed findings of fact Nos. 1 through 5 pertain to the procedural posture of the case, apart from evidence adduced at final hearing. Respondent's proposed findings of fact Nos. 6-8, 12-15, 17-20, the first sentence of No. 21, Nos. 25, 27, 28, 31-34, 36, 37, 39-47, 49-56, 60, 61, 62, 64, 67, 69-75 and 76 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 9, 10 and 11, it is not clear whether Faison was present and heard Mr. Schorr's remarks, or that he was ever told of any deadline. With respect to respondent's proposed finding of fact No. 16, it is not clear whether FLAC intended not to hide the fact that one of its employees was videotaping petitioner. With respect to the last sentence of paragraph No. 21 and Nos. 22, 23 and 24, petitioner was fired for perceived refusal to use the script, whether or not he had time enough to learn it. Respondent's proposed findings of fact Nos. 26, 29, 30, 35, 38, 48, 58, 63, 77, 78 and 79 pertain to subordinate matters. Respondent's proposed finding of fact No. 57 is interally inconsistent. With respect to respondent's proposed finding of fact No. 59, it is unnecessary to decide this question in order to decide the case. With respect to respondent's proposed finding of fact No. 65, the position was filled on June 28, 1990. With respect to respondent's proposed finding of fact No. 66, see paragraphs 46-51 the findings of fact. With respect to respondent's proposed finding of fact No. 67, the evidence was in equipoise on the question of where Ms. Hawkins was when the loss was discovered. COPIES FURNISHED: Mary C. O'Rourke P. Kent Spriggs Spriggs and Johnson West College Avenue Tallahassee, FL 32301 Loren E. Levy Bruce Kaster Cove, Green and Kaster P.O. Box 2720 Ocala, FL 32678 Margaret Jones, Clerk Commission on Human Relations John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Lewis E. Shelley 117 S. Gadsden Street Tallahassee, Florida 32302
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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent J. Michael Buffington is a Certified Deputy Pilot for the Port of Tampa and is licensed by the Board of Pilot Commissioners. On January 16, 1983, respondent was on duty and was assigned to pilot the M/V SUNNY MED on its inbound transit of Tampa Bay. The SUNNY MED is a general cargo vessel of 4908.25 gross registered tonnage. It is 378 feet long and has a beam of 55 feet. The draft of the vessel, then in Ballast, was 5 feet forward, about 10 feet midship and 14 feet 6 inches aft. Prior to boarding the vessel, respondent checked the board at the pilot's station for notices of hazards to navigation. Upon boarding the vessel at 0550 hours in Egmont Channel, respondent was told by the Captain that the draft of the SUNNY MED was less than 15 feet. At the time of boarding, the 3 to 5 foot seas were somewhat rough and winds were blowing at approximately 15-20 knots. The vessel was not handling well, was yawing considerably and was slow to respond to the rudder. Respondent had to correct the quartermaster on two or three occasions for "chasing the compass." Respondent approached the Sunshine Skyway Bridge at 0800 hours. There was to be a shift change of crew at about the same time. The 0800 crew is typically the least experienced watch on a vessel and respondent, who had previously encountered difficulties with the quartermaster, was somewhat concerned about the abilities of the new shift Upon approaching the Sunshine Skyway Bridge, respondent observed the outbound DAVID D. ERWIN lining up to go under the bridge. The Hendry Dredge Number 5, a pipeline dredge, was located in the vicinity of 9 B Cut. On previous occasions, the Dredge captain had requested pilots on board a vessel having a small draft to proceed around the dredge outside the channel if they were able to do so, so as not to interfere with the dredging operation. Respondent was aware of these prior requests, though no such request was made on January 16, 1983. In fact, the dredge was not in operation on this particular morning. In order to avoid a close situation with the DAVID D. ERWIN in the A Cut, and being concerned with the abilities of the new watch, and also knowing that he would be going outside the channel later to go around the Hendry Dredge at B Cut, respondent left the dredged channel after passing through the Sunshine Skyway Bridge. Respondent then proceeded inbound parallel to the dredged channel along the "Old Ship Channel," also called the "flats," in an area known to have 18 to 22 feet of water. It has been the custom and tradition for many years to vessels of small draft (less than 18 feet) to use the flats in this area of Tampa Bay. Indeed, it is necessary to leave the marked channel and traverse the flats in order to reach some of the ports in that area of Tampa Bay. Some 500 ships per month utilize the dredged channel area, and it is customary for the smaller draft vessels to give way to the larger draft vessels in the marked, deep draft channel. As respondent was travelling inbound in the Old Ship Channel near the Hendry Dredge, he was aware of the M/V BERGO travelling outbound and the MARINE FLORIDIAN travelling inbound in the dredged channel. The captains of these two vessels were having radio discussions as to where they would meet, and respondent was listening to the discussions. They were attempting to time their arrival in between the Hendry Dredge Number 5 and the turn into C Cut from B Cut so that they could negotiate their passing in a spot other than a turn in the channel or the location of the dredging equipment. Both the BERGO and the MARINE FLORIDIAN are between 80 and 100 feet wide, were heavily laden at the time, and their drafts were between 32 feet and 33 feet 6 inches. The dredged channel can handle a maximum draft of 34 feet, and is approximately 400 feet wide in this particular area. The two vessels had only about 6 inches of water beneath them and the BERGO was "crabbing" due to the current. Respondent made the decision to remain outside the dredged channel as the two loaded vessels negotiated their meeting and passing. He knew he had adequate water beneath him and he felt this was the safest and most prudent course of action to follow. Both the captain and the BERGO and the captain of the MARINE FLORIDIAN agreed that it was wise and prudent for respondent to stay out of the dredged channel at that time, though neither had requested respondent to do so. As the SUNNY MED proceeded outside but parallel to the dredged channel, it struck an uncharted and unmarked submerged barge, causing extensive damage to the SUNNY MED. The collision occurred approximately 1500 feet southwest of Buoy 1 D and about 200 feet outside of the marked channel. The barge, owned by the Hendry Corporation, was sunk in June of 1982 during a tropical storm. It was submerged in approximately 22 feet of water with 7 feet of water covering it from visibility. No Notice to Mariners advising of this obstruction had been issued. Mishap reports filed by the Hendry Corporation with the United States Army Corps of Engineers in July of 1992 stated that the sunken stern nipple barge was recovered and salvaged in July 1982. While the respondent knew that the Hendry Corporation had lost some equipment in the tropical storm occurring in June of 1982, he was not aware that any vessel had sunk.
Recommendation Bases upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found not guilty of violations of Section 310.101(5), Florida Statutes, and Rule 21SS-8.07(1)(d), Florida Administrative Code, and that the Administrative Complaint filed against the respondent be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of April, 1984. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1984. COPIES FURNISHED: W. B. Ewers, Esquire P.O. Drawer 9008 Coral Springs, Florida 33075 J. Michael Shea, Esquire P.O. Box 2742 Tampa, Florida 33601 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues for determination in this case are whether Petitioner has standing to bring this action and, if so, whether Respondent Stuart Yacht Corporation is entitled to the General Permit which the Department of Environmental Protection (Department) intends to issue.
Findings Of Fact Petitioner owns Lot 4 in St. Lucie Settlement, a subdivision in Stuart, Florida. The subdivision has one border along the South Fork of the St. Lucie River. The subdivision has a finger fill that extends to the South Fork with canals on both sides. There are four lots on the finger fill, Lots 1 through 4 of the subdivision. Lot 4 is farthest from the river. On the north side of Petitioner’s property he has a dock where he keeps a boat. The dispute in this case involves the canal on the south side of Petitioner’s property. All references to “the canal” hereafter, unless otherwise noted, will be to the canal on the south side of Lot 4. Between Lots 2, 3, and 4 and the canal is a road which provides access to the lots on the finger fill. Between the road and the canal is a narrow strip of land. Petitioner owns this narrow strip of land where it corresponds with his lot lines. In other words, the southern boundary of his Lot 4 abuts the canal. However, because the canal is artificial, having been created by dredging, Petitioner has no riparian rights associated with the canal. That was the holding of the circuit court for Martin County in the litigation between Stuart Yacht Corporation and Petitioner. It was also established in the circuit court litigation that St. Lucie Settlement, Inc., which is the homeowner's association for the subdivision, owns the northern half of the canal and Stuart Yacht Corporation owns the southern half of the canal. No subdivision documents were presented to show the extent of rights granted to homeowners within St. Lucie Settlement related to the construction of docks or other uses of water bottoms that are included within the subdivision. Petitioner testified that he terminated his membership in the homeowners association three-and-a-half years ago. Stuart Yacht Corporation owns and operates a marina on the south side of the canal which includes docks over the water. At some point in the past, but before Petitioner purchased Lot 4 in 1995, Stuart Yacht Corporation constructed a dock along the north side of the canal, over the water bottom owned by St. Lucie Settlement, Inc. The dock along the north side of the canal has been used for mooring large yachts. The portion of the dock that ran along the boundary of Lot 4 was recently removed by Stuart Yacht Corporation following the rulings in the circuit court. The balance of the dock along the north side of the canal would be removed as a part of the proposed permit that Petitioner has challenged. In addition to removing the dock along the north side of the canal, the proposed permit authorizes Stuart Yacht Corporation to construct a new dock that is four feet wide and runs 150 feet along the property boundary in the center of the canal. No part of the proposed new dock would be on the property of St. Lucie Settlement, Inc. St. Lucie Settlement, Inc., did not challenge the proposed permit. In his petition for hearing, Petitioner alleged that the proposed new dock would cause the following injuries to his interests: interference with ingress and egress to Petitioner’s shoreline; interference with Petitioner’s desire to obtain a permit in the future to construct a dock or to “harden” the southern shoreline; and interference with Petitioner’s riparian rights. Petitioner’s testimony about his past use of the canal was inconsistent. He said he moored his boat in the canal once in 1995. He said he boated into the canal to fish on several occasions. He said that (at least twice) when he attempted to enter the canal by boat, he was denied access by representatives of Stuart Yacht Corporation. However, in a deposition taken before the hearing, Petitioner said he had never attempted to use the canal. The only testimony presented by Petitioner to support his claim that the proposed permit would interfere with his navigation, fishing, and desire to obtain a dock permit in the canal was the following: I couldn’t get a boat in there with that proposed dock in the center line of the canal right on their side of the canal. It would be 150 feet long. It would be a huge Wall of China. My neighbor and I couldn’t get to our shoreline. The evidence presented was insufficient to prove that Petitioner would be unable to navigate into the canal in a small boat or to fish in the canal if the proposed dock is constructed. The evidence was also insufficient to prove that Petitioner would be unable to construct any kind of dock for any kind of watercraft if the proposed dock is constructed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department dismiss the petition for hearing based on Petitioner's failure to prove standing, and issue the proposed permit to Stuart Yacht Corporation. DONE AND ENTERED this 20th day of February, 2008, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2008. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Paul B. Erickson, Esquire Alley, Maass, Rogers & Lindsay, P.A. 340 Royal Poinciana Way, Suite 321 Palm Beach, Florida 33480 Amanda Gayle Bush, Esquire Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399 Guy Bennett Rubin, Esquire Rubin & Rubin Post Office Box 395 Stuart, Florida 34995
Findings Of Fact The applicant proposes to construct a concrete boat ramp on the south bank of the Eau Gallie River in Brevard County. The Eau Gallie River is a tributary of the Indian River and is a Class III water body as defined in Chapter 17-3, Florida Administrative Code (F.A.C.). 1/ The ramp would be 17 feet wide and 64 feet long. Approximately half the length would extend into waters of the Eau Gallie River over which DER has. Jurisdiction under Chapters 403 and 253, F.S. The construction would involve the removal of 47 cubic yards of soft bottom material waterward of ordinary high water and the filling of 35 cubic yards of compacted material also waterward of ordinary high water. In addition, 38 cubic yards would be excavated landward and 72 cubic yards would be filled landward of ordinary high water. The boat ramp is to be a private facility not once to the general public. The applicant sought this permit in conjunction with the upland development of its river front property. The applicant's property extends for approximately one-half mile along the north bank of the Eau Gallie River. At build out, the applicant estimates that the property will contain several hundred apartment units which may eventually be converted to condominiums. The lessees or condominium owners would have access to the proposed boat ramp. Petitioner, Tom Hall, is an adjacent property owner who is concerned that increased boat traffic on the Eau Gallie River in the vicinity of the boat ramp would adversely impact manatee and other wildlife and marine resources. At various times of the year, manatees can be observed in the Eau Gallie River in the vicinity of the proposed boat ramp. The river also contains a variety of fish and supports a local population of water fowl. The river in the vicinity of the proposed boat ramp is generally not more than one to two feet in depth. The boat ramp is designed to launch only small craft such as canoes, rowboat or jonboats with small trolling motors. The application does not request the issuance of a permit to dredge a navigational channel to enable the beat ramp to accommodate larger power craft. The testimony of DER's expert witness established that the small craft which could be launched from the boat ramp would not pose a threat to the manatees that frequent the area. Rather, it is the larger power boats that endanger this marine mammal. There are no other wildlife or marine resources which would be impacted significantly by the construction of the boat ramp. Additionally, it should be noted that this project would benefit the several hundred residents of Brevard County who would eventually have access to the boat ramp. The testimony of DER's expert witness established that there would be no long-term violations of DER water quality standards as a result of the construction and use of the boat ramp. Short-term impact during construction would be minimal since turbidity screens are to be employed. Thus, the applicant has provided reasonable assurance that the short-term and long-term effects of the construction and use of the boat ramp will not result in violation of DER's water standards. It is important to note that, as long as no dredging of filling is involved, there is no legal impediment preventing riparian landowners from launching boats from their river front property or engaging in recreational boating activities in the portion of the boat ramp could cause continuous turbidity problems and damage valuable habitat along the river front. By confining the alteration of the littoral zone to such a small area as that involved in the application and thus guaranteeing adequate, comfortable access for the riparian owner, the survivability of the remaining littoral in its natural state would be significantly enhanced. Petitioner Hall theorizes that boats who would otherwise use downstream public boat ramps will instead launch at the site of the proposed ramp. However, there was no evidence submitted to support this theory. Given the ease with which small boats could be launched without any ramp at this site, it does not appear that the ramp itself would generate additional activity involving canoes and other small craft. Since the launching of power boats is not feasible because of the shallow river depth, such traffic is not likely to be affected by construction of the proposed ramp.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Approximately four years ago, petitioner Howard Meyers purchased an old steel barge for the purpose of using it as a surface to put a crane on for other repair work. The crane work apparently vibrated so much that the deteriorated sides of the barge collapsed. The barge was moved closer to the shoreline, and it sunk. Efforts to remove the whole barge from the water were unsuccessful. Presently only about one-third of the original barge remains in the water. In February of 1979, the petitioner submitted an application to the Department of Environmental Regulation for a permit to move the dismantled sunken barge hull to an adjacent shoreline area, fill the moved barge with fill removed from an excavated shoreline and an upland source and place riprap around the hull. Petitioner had a permit to do maintenance dredging to clean out an existing, channel or basin, and desired the subject permit for the purposes of getting rid of the barge, using it in furtherance of the maintenance dredging work and preventing erosion of the shoreline. Upon receipt of the permit application, the respondent requested further information from the petitioner and conducted an on site inspection. Richard F. Dumas performed the field inspection and recommended that the permit be denied due to the advanced stage of deterioration of the barge, the increase in shoreline discontinuity and the proposed destruction of established marine vegetation in the area. Mr. Dumas was concerned with the adverse impact which would be caused from turbidity as the barge is dragged into place, the continued discharge of rust into the waters, and the alteration and hindrance of established lateral currents. He suggested that the applicant move the barge from the water to an upland area. Thereafter, petitioner unsuccessfully attempted to move the barge out of the water and, in the process, a deteriorated portion of the sunken hull was rolled or folded back on itself, thus reducing the amount resting on the bay bottoms. Revised drawings were submitted to respondent by petitioner. Richard Dumas submitted a modified project appraisal and again concluded that the proposed dragging of the barge to its new site would detach most or all of the vegetation and disturb benthic organisms over a 3,300 square foot area, would increase the prominence of the existing shoreline discontinuity, and could hasten the refilling of the areas for which petitioner holds a maintenance dredging permit. Thereafter, the respondent's branch office gave notice of its intent to deny the application for the subject permit. The grounds for such denial included violations of turbidity standards caused by the physical dragging of the barge and the backfilling operation, the discharge of rust from the deteriorating barge, the destruction and elimination of 3,300 square feet of productive bay bottoms and the entrapment of debris caused by the further protrusion of the shoreline. The water body in question is a Class III body of water which is designated for recreation and the promulgation and maintenance of fish and wildlife. The area through which the barge is to be moved by dragging is vegetated with turtle grasses and brown, green and red algae. The area is one of productivity with types of vegetation that supports important marine organisms. The most remote portion of the barge presently rests approximately 35 feet from the proposed site of placement, thus requiring the dragging of the barge across some 3,300 square feet of a viable, benthic community. This will result in the disturbance or complete elimination of such community. Because the area is one of high energy, it would be quite some time before the area could revegetate itself. The placing and filling of the barge on the adjacent shoreline would displace the benthic community currently present at that site, and the extension of the shoreline would cause further entrapment. The material proposed to be used as fill for the barge is not stable material suitable for fill. Rust would be discharged and thus deteriorate the waters. The applicant has not supplied the Department with any evidence of local approval of the proposed project.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application for a permit to drag the sunken barge across productive bay bottoms to an adjacent shoreline, backfill the barge and place riprap around it be DENIED. Respectfully submitted and entered this 20th day of March, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jake Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Howard Meyers Jolly Roger Trailer Park R.D. Number 1, Box 525 Marathon, Florida 33050 H. Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Respondent, Clyde Vetter (hereafter Vetter), has made application to the Respondent, Department of Environmental Regulation (hereafter DER), for maintenance dredging and construction of boat docks on his property located in Isle of Capri, Collier County, Florida. Petitioner, Rosanna Loach (hereafter Loach), requested a hearing on the permit request and objected to the issuance of the permit on the grounds that the proposed project would create an offensive odor. The uncontradicted evidence shows that the proposed project poses no serious impediment to navigation and will create no adverse environmental impact. DER has recommended approval of the permit application. Loach presented the testimony of herself and other residents of the area which testimony established that each witness was concerned about possible trash from boats using the proposed facilities, noise, odors, additional boat traffic, the creation of an eyesore and resultant danger to sport fishing. There was no evidence presented which would, in fact, demonstrate that the proposed project would have an adverse environmental impact or would constitute a serious impediment to navigation.
