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.
Findings Of Fact Petitioner Richard L. Buchanan owns a lot in Franklin County, which lies on the north shore of Apalachicola Bay. Shellfish harvesting is prohibited in the water adjacent to his parcel despite, or perhaps because of, oyster houses having operated in the vicinity for many years. Mr. Buchanan is not an oysterman himself, but he does fish commercially, when he is able. He owns two licensed fishing boats. He goes floundering and also fishes with gill nets. Since he acquired the property 10 or 12 years ago, Mr. Buchanan regularly loaded nets from shore and unloaded fish and nets on shore, until the prop-dredging took place, even though a dock extends out into the Bay from his property. The outboard motor is hard to handle from the dock and it is virtually impossible to load the nets from the dock without fouling them. Until the prop-dredging he could bring his boats all the way in and lay their bows on the shore along the stretch of clean sand 35 to 50 feet wide at the western end of his 145 feet of Bay frontage. There was a sheer drop to a depth, at high water, of about 3.5 feet. The Sadler boy drowned there. Before the prop-dredging disturbed it, the configuration of the bottom that allowed small boats to come all the way into shore at that point had obtained for decades. Leo Nixon Harwell, son of the former owner of petitioner's property, remembered running the Harwells' oyster boat, which drew three feet, right up on the beach. Mr. Harwell, who looked to be in his 50's, testified that there had been deep water next to the shore ever since he was "no yearly boy." The further from shore the deeper it got till you reached Two Mile Channel. Between the sandy beach and the channel there was no vegetation to speak of although there was a marshy swash to the east of the sandy beach. In 1979, when Arman Earl Cloud had to haul his bay shrimper for repairs, he floated it to the beach in back of Mr. Buchanan's house and pulled it up on the beach, using rollers. The bow floated to the water's edge. The boat had a length overall of 25 to 28 feet, a beam of nine feet and drew three to three and a half feet of water. An oyster house sits on the next parcel west of the Buchanan property. The oyster house belongs to a man named Page, and a dock 100 feet long juts out toward Two Mile Channel from the oyster house. It used to be impossible to get an oyster boat in any closer to shore. When John Paul Whitehead was oystering some years back, they used to have to anchor out and transfer the oysters to a skiff to get them to the Page oysterhouse. In fact, when Diane Collins rented the oysterhouse (from Bobby Youngblood) in 1974 or 1975 it was impossible to bring even a flat-bottomed boat in as far as the waterward end of the dock. "On dead low tide all you seen was sand on either side of the dock." According to unrebutted testimony, the Pages changed all this by prop- dredging. (Mr. Page failed to honor the subpoena requiring his attendance at the final hearing.) Prop-dredging involves fixing the bow of a boat by grounding or otherwise, and turning the propeller at speeds high enough to move soils on the bottom. Bay this technique, the Pages dredged great quantities of sand on either side of their dock. Most of the sand stayed suspended in the water only long enough to settle in front of their neighbors' property. This illegal activity was brought to the attention of the marine patrol at the time, whose warning to the Pages to desist went unheeded, and at least one employee of respondent Department of Environmental Regulation was also apprised. The prop- dredging continued for some time, usually at night, and the eventual result was "a muck hill" in front of the Miracle Seafood property abutting the Pages to the west, and a sandbar in front of Mr. Buchanan's property that completely blocks access to his sandy beach. The Pages, with 55 front feet on the Bay, can now accommodate quite a fleet at their dock. One day six to eight boats were docked there. The sandbar in front of Mr. Buchanan's property attributable to the Pages' unpermitted and illegal prop-dredging has by now been there long enough that smooth cord grass (Spartina altiflora), saw grass and maiden cane have taken root. The dredging proposed by petitioner to restore access to his shoreline would disturb some 400 square feet, on which only Spartina altiflora is growing. On about a quarter of the proposed site, there is no vegetation. The Spartina altif lora helps stabilize the shoreline, serves to filter pollutants running off into the Bay and provides a habitat and food for insects, worms, oysters, shrimp and fishes. Dredging would resuspend any heavy metals in the soil, and increase the turbidity of the water, in the immediate vicinity. There is a boat ramp 500 feet from petitioner's property. DER would issue a permit for a marine railway at the site where petitioner hopes to dredge. Apalachicola Bay is classified as Class II waters, and as outstanding Florida waters, being part of an aquatic preserve. There is a clear public interest in permitting a private citizen, who is willing to restore, at his own expense, a part of the coastline disturbed by illegal activity which he responded to the authorities at the time, to the status quo which existed for as long as anybody can remember, before the illegal activity disturbed it. In an undated letter to Mr. Buchanan, James W. MacFarland, Director, Division of State Lands, Department of Natural Resources, advised that Upon the assurance that the environmental effects are acceptable and with the understanding that DER intends to issue the permit, we will request the dredge material severance fees and issue our authorization pursuant to Section 253.77, Florida Statutes, upon the permit receipt. The credible testimony of DER staff was to the effect not that the loss of some 300 square feet of Spartina altif lora would have unacceptable environmental effects, but that the cumulative effect of projects entailing destruction of such grasses would have unacceptable environmental consequences. Respondent's proposed findings of fact, conclusions of law and proposed recommended order have largely been adopted, in substance. To the extent any proposed finding of fact has been rejected, it has been deemed immaterial or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner grant respondent's application for a dredging permit on such reasonable conditions, including turbidity curtains, as are necessary adequately to protect the project vicinity. DONE and ENTERED this 8th day of August, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1983. COPIES FURNISHED: E. Gary Early, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Richard L. Buchanan P. O. Box 33 Apalachicola, Florida 32320 Victoria Tschinkel, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto George H. McDonald was licensed as a Tampa Bay pilot by the State of Florida and issued license number 0000074. On October 29, 1986, Respondent boarded the vessel, Kalliope II, at berth 223, GATX dock, to undock the vessel and pilot it out of Tampa Bay. Kalliope II is a Liberian registered vessel of some 17,000 gross tons, 584 feet in length, and at the time of departure from berth 223, had a maximum draft of 34 feet, six inches. The Kalliope II was moored starboard side to berth 223, and two tugs were available to assist in the undocking. Prior to undocking, the steering gear was tested and performed satisfactorily. A physical check of the steering engine room was not conducted. The bow of the Kalliope was swung out in a pivot test to insure the bow was not aground. This was accomplished by slacking the bow lines and taking in on the stern lines. A similar pivot to ensure the stern was not aground was not accomplished. In undocking the Kalliope II, Respondent had the tug Tampa on the stern on a hawser and the tug Orange on the port bow. As the vessel cleared the slip, the Orange was cast off and stood by with the Tampa towing the Kalliope II into Cut D Channel. Because of the deep draft of the Kalliope II, Respondent did not use the vessel's engines in this maneuver. The Kalliope II as noted above, is 584 feet long and Cut D Channel is 400 feet wide. In order to keep the stern from striking the west bank of the channel while backing out of berth 223, it is necessary to pivot the vessel to move the stern northward while keeping the bow clear of the docks. While backing away from berth 223, the only control of the movement used was that supplied by the tug Tampa. Twice the captain of the Tampa advised Respondent that the stern of the Kalliope II appeared to be getting too close to the Davis Island seawall just west of Cut D Channel. The first time this information was passed to Respondent, he directed the tug to come ahead slow, and the second time the tug was directed to come ahead full. Thereafter, the Kalliope II was aligned in cut D channel. At this time, Respondent ordered the engines ahead slow and had the Tampa cast off. The weather was not a contributing factor at this time. At no time between 2200 hours, the time the Kalliope II left berth 223, until the Kalliope II was finally aligned with Cut D Channel, did Respondent feel the Kalliope II touch bottom. While proceeding down Tampa Bay, Respondent noticed the helmsman was using 200 rudder to keep the vessel in the channel, and directed one of the ship's crew to check the steering engine room. When this was done, it was discovered that the steering mechanism had suffered considerable damage, and the vessel could no longer be controlled with the steering gear. Tugs were again called, and the Kalliope II was returned to a dock. Underwater divers surveyed the damage to the rudder, and other surveyors checked the damage to the gear in the steering engine room. Examination of the rudder showed heavy damage with the trailing edge of the bottom of the rudder bent some 25 degrees from the top of the rudder. Build up of streaks of clay on the port side of the rudder, with the rudder damage sustained, is indicative of the rudder striking the bank while the ship was backing down. (Exhibit 5) Examination of the steering gear inside the steering engine room revealed the steering equipment had been seriously damaged and was inoperable. The damage was consistent with damage to be expected if a ship struck the edge of the channel with the rudder while backing down. Divers searched the west bank of Cut D Channel in the vicinity of berth 223 and found an impact area opposite and just north of berth 223. The impact area was approximately 40 feet long parallel to the channel with clay substrata welled upwards through the sand and mud giving the appearance of the embankment having been struck by a large heavy force. (Exhibit 6) Damage to the Kalliope II's steering equipment was in excess $100,000. Respondent has been a licensed deputy pilot and pilot in Tampa Bay since 1980, has an excellent record, and this is the first time that charges have been brought against him.
The Issue At issue herein is whether or not the Petitioner, Kelly Boat Service, Inc.'s and Cape Kennedy Charter Boats, et al's activities fall within the admissions tax liability imposed by Section 212.04, F.S. (1973). Based upon the pleadings filed herein, the documentary evidence introduced during the course of the hearing, the other evidence of record including the arguments of counsel, the following relevant facts are found.
Findings Of Fact In the instant matter, the Department of Revenue issued two sales tax assessments. The first such assessment is against Cape Kennedy Charter Boats and covers the audit period of March 1, 1973, through February 29, 1976. The Department also assessed Kelly Boat Service, Inc., in a series of three separate assessments covering the audit periods August 1, 1970, through January 31, 1976. Based on such assessments, a tax liability resulted in the amount of $25,072.37. Of this amount, $10,000 was paid by the tax payer on July 21, 1976 (Respondent's Composite Exhibit No. 1). The remaining tax liability plus interest which has accrued from July 21, 1976, is outstanding and continues to accrue. During the course of the hearing, the parties agreed that the specific liabilities as set forth in the assessment were not at issue. Rather, Petitioner solely challenged the legal authority of the Department of Revenue to impose the assessments in question. The Petitioners are owners and operators of a fleet of deep sea fishing boats in and around Destin, Florida, which, for a fee, carry individual fishermen to certain fishing banks which lie beyond the three-league limit in the Gulf of Mexico. While there, the Petitioners sell food and drinks to the fishermen and rent them fishing equipment. The fishing is done at the snapper banks in the Gulf of Mexico or in the vicinity of those banks. The fishing equipment and tackle used on these trips are mainly used beyond the three-league limit in the waters of the Gulf of Mexico; and most, if not all, of the food and drinks sold at the galley of the refreshment stand on the boat was outside the three-league limit of the State of Florida. In an earlier summary final judgment, the Circuit Court of Appeal declared, as authorized by Chapter 86, Florida Statutes, 1973, the liability of Kelly Boat Services, Inc., for payment of the admissions tax by Section 212.04, F.S., 1973, from which the Department of Revenue filed an appeal. In that decision, the Court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August, 1970, and the first day of August, 1973, the period in which the Department demanded the production of Kelly's records for audit. Section 212.14(6), F.S., 1973. Kelly cross-appealed and urged that its activities were not subject to the tax, citing Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App. 1st 1968). In its decision, the First District Court of Appeal in Dept. of Revenue v. Kelly B Boat Service, Inc., 324 So.2d 351 (Fla. 1976), indicated that the trial court was correct in its reading of its decision in Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App 1st 1972), Cert. Denied, 262 So.2d 682 (Fla. 1972), Cert. Dismissed, 287 So.2d 93 (Fla. 1974), and in hold that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The Court noted that the trial court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by Subsection 212.14(6), F.S., 1973. The decision goes on to read that the State is not foreclosed by reason of the Court's 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise to assert that on the facts evidenced by record, Kelly should satisfy its full tax liability incurred three years prior to August 1, 1973. North American Company v. Green, 120 So.2d 603 (Fla. 1960); Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464 (1939). Based on the above decision of the First District Court of Appeal, the Department's assessment, which the parties admit is factually correct, is valid both as to the August 1, 1970, through July 31, 1973, and the August 1, 1973, through January 31, 1976, audit periods. Since this matter has previously been adjudicated, the same is res judicata as to the legal validity of the Department's assessment. Further, since the assessment relative to Cape Kennedy Charter Boats is based upon the same factual circumstances and legal authority as the one against Kelly Boat Service, Inc., which was upheld as aforementioned in the case of the Dept. of Revenue v. Kelly Boat Service, Inc., supra, there is no factual challenge to the validity of the Department's assessment and there being no assertion by the Petitioner that any rules of law other than those enunciated by the District Court of Appeal in Dept. of Revenue v. Kelly Boat Service, Inc., supra, are applicable, such assessment must likewise be upheld. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Department of Revenue's assessment in the instant matter against the Petitioners be UPHELD. Additionally, in view of the Petitioners' letter of April 11, 1979, Petitioners' motion to treat this matter as a class action is hereby DISMISSED. RECOMMENDED this 31st day of May, 1979, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue Whether the Florida Fish and Wildlife Conservation Commission (“Respondent” or “the Commission”) correctly determined that a vessel owned by Robert Sweeney (“Petitioner”) was a “derelict vessel” or an “abandoned vessel” within the meaning of section 823.11, Florida Statutes (2020), and, therefore, subject to the provisions of sections 823.11, 705.101(3), 376.15(3)(a), and 705.103, 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. Sweeney is the registered owner of a 37-foot sailboat, Islander 37, registration number FL4412SK (“sailboat”), found in the public waters of Manatee County, Florida. The Commission is empowered to remove, or cause to be removed, derelict vessels from the waters of Florida. §§ 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. Lieutenant McCorkle is a sworn law enforcement officer (“LEO”) with 14+ years of experience with the Commission. His training in derelict vessel investigations includes over 50 hours of derelict vessel identification and investigation. Major Rowe is a sworn LEO and 22-year employee of the Commission. He began his career as a water patrol officer and worked his way through the ranks of lieutenant, captain, and is now a major. He developed and fine-tuned the Commission’s derelict vessel training program, and is now in the Commission’s mentoring program to become a lieutenant colonel. In mid-November 2020 (after Tropical Storm Eta passed through Florida), Lieutenant McCorkle saw the sailboat in the Manatee River in Manatee County, Florida. He initiated a derelict vessel investigation. Lieutenant McCorkle observed the sailboat to be in a wrecked condition, grounded on submerged lands, and listing (leaning) to the port (left) side. He observed the keel, the elongated protrusion on the bottom of the sailboat that provides stability to the vessel, to be “imbedded” (or stuck) in submerged land. Because the sailboat was stuck on submerged land, it could not be moved “without some kind of mechanical assistance.” Lieutenant McCorkle located the sailboat’s registered owner, Mr. Sweeney, at his residence. Mr. Sweeney acknowledged he was the owner of the sailboat. On November 17, 2020, Lieutenant McCorkle hand-delivered a “derelict vessel packet” to Mr. Sweeney. This packet provided that the Commission had determined that the sailboat was in a derelict condition and provided the following description: The above vessel is being stored, left or abandoned in a wrecked condition upon public waters of this state. The vessel is currently aground as a result of TS Eta at N 27° 31.9771 W 082°38.4427. In Lieutenant McCorkle’s presence, Mr. Sweeney acknowledged receipt for the “derelict vessel packet.” Lieutenant McCorkle understood that Mr. Sweeney did not have the financial resources to remove the sailboat at that time. In November 2020, Lieutenant McCorkle took a series of three pictures of the sailboat. These pictures confirmed that Mr. Sweeney’s sailboat was on the public waters of Florida in Manatee County. The pictures showed the sailboat’s registration number, its rudder was partially submerged, the keel was imbedded in submerged lands, and the sailboat was listing to the port side, with the starboard side hull exposed to the air. The lines to the sails appeared to be connected to the mast or appropriate cleats. At that time, Lieutenant McCorkle placed the Commission’s notice of derelict vessel on the sailboat’s starboard bow, such that it was visible from the navigable waterway. Approximately two weeks before the hearing, Lieutenant McCorkle again observed the sailboat in the same location and in a similar condition, listing to the port side. Lieutenant McCorkle took two more photographs of the sailboat which remained in the location where it was first observed, stuck in the submerged lands, and listing to the port side. Additionally, the sailboat appeared to be deteriorating, in that some of the lines were no longer connected to cleats, but were hanging from the mast and now dangling down towards the water. Lieutenant McCorkle found the sailboat to be in a wrecked condition, and considered it a derelict vessel. Major Rowe did not participate in the investigation of this sailboat. Further, he did not discuss the sailboat investigation with any of the LEOs involved. Major Rowe did review the two sets of pictures taken, and based on his years of experience and training testified that this sailboat was a “classic example of a wrecked vessel,” and thus a derelict vessel. The testimony of Lieutenant McCorkle and Major Rowe was unrefuted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order deeming the sailboat to have been a “derelict vessel” within the meaning of section 823.11(1)(b)1. and that the Commission is authorized under section 376.15(3)(a) to relocate or remove it. DONE AND ENTERED this 27th 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 27th day of April, 2021. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish & Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 Eric Sutton, Executive Director Florida Fish & Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Robert Sweeney 104 26th Street Northwest Bradenton, Florida 34205 Emily Norton, General Counsel Florida Fish & Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
Findings Of Fact Richard K. Stander is the owner of Tom's Harbor Key located in the Florida Keys between Duck Key and Grassy Key. Petitioner seeks a permit to construct a private, non-income producing fishing camp for personal acquaintances and guests. The construction includes a wood dock 80 feet long by six feet wide with nine finger piers two feet wide and 15 feet long running from this dock to provide boat slips, and 1350 linear feet of elevated walkway six feet wide running from the dock area across the mangrove area to seven cottages to be constructed on the upland area of Tom's Harbor Key. Piling across the mangrove area will be implanted by hand auger or water-jetted in. If jetted, appropriate turbidity screens will be used. The pilings for the dock will be driven or implanted with a mechanical auger. The Department of Natural Resources reviewed the application and determined that since the proposed project is a private, non-income producing facility, a lease [from DNR] is not presently required. (Exhibit 3) The submerged lands where the dock and boat slips are to be constructed contain patchy turtle grass growth on an open sandy bottom. (Exhibit 4) Construction of the dock and finger pier boat slips as proposed will have no adverse impact on the flora or fauna in the area. The proposed walkway will cover approximately 2400 square feet (0.06A) of wetlands consisting primarily of red and black mangroves. Constructing this walkway over these wetlands will have no adverse effect on the plants other than the pruning which will be needed to keep the walkway clear. The proposed caretaker's house will be built over the wetlands area and it, like the walkway, will be elevated and will have no adverse effect on the plant or animal life. The cottages will be built on the upland area, and they, too, will be built on pilings with the bottom of the structures some ten feet above mean sea level. Petitioner proposes to use dry toilets in these cottages and remove all wastes to the mainland. Accordingly, no waste will be discharged into the waters adjacent to Tom's Harbor Key. Intervenor contends the proposed project is commercial in nature rather than private but presented no evidence to support this contention. Objections to Intervenor's attempts to infer error in the DNR determination made in Exhibit 3 were sustained as not relevant to the issue before this tribunal. Intervenor also inferred that the application was false because Petitioner stated in the application that the pilings would be implanted using a hand auger or water jet, while at the hearing it was learned the dock piling would be driven or implanted with a mechanical auger. This difference was satisfactorily explained by the testimony of the individual who prepared the application. Moreover, the harm to the environment by implanting the dock pilings by driving or mechanical auger would be less than if these pilings were jetted. It is Intervenor's position that because Petitioner erred in stating in the application how the pilings were to be implanted perhaps he erred in other parts of the application, and therefore the application should be returned to Petitioner for resubmission. Tom's Harbor Key is a pristine area accessible only by water. The wetlands adjacent to this site consist of flourishing mangrove forests, and the area is highly productive. Those opposing the permit applied for are residents of Duck Key, a larger key adjacent to Tom's Harbor which is accessible by land, and which, before its development and occupancy, was also a pristine wetland habitat. Although these witnesses opined that the proposed development would have an adverse impact on the marine habitat and on the birds at the site, no factual evidence to support those conclusions was presented.
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue a letter of consent to use State-owned submerged lands (SL) and an environmental resource permit (ERP) (which are processed together as a SLERP) for the single-family dock proposed by Pamela C. Damico, which would extend 770 feet into the Atlantic Ocean from her property on Plantation Key in Monroe County (DEP Permit 44-0298211-001).
Findings Of Fact Pamela C. Damico owns property at 89505 Old Highway on Plantation Key in the Upper Florida Keys in Monroe County. Her property includes submerged land extending between 212 and 233 feet into the Atlantic Ocean, which is an Outstanding Florida Water (OFW). She applied to DEP for a permit to build a dock and boat mooring at her property. In its final configuration, the proposed docking structure would have an access pier from the shoreline that would extend across her submerged land, and then farther across State-owned submerged lands, for a total distance of 770 feet from the shoreline. A primary goal of the application was to site the mooring area in water with a depth of at least -4 feet mean low water (MLW). Mrs. Damico’s consultants believed that this was required for a SLERP in Monroe County. In addition, they were aware that -4 feet MLW would be required to get a dock permit from Islamorada, Village of Islands. The beliefs of Mrs. Damico’s consultants regarding the depth requirement for the mooring site were based in part on incorrect interpretations of DEP rules by certain DEP staff made both during Mrs. Damico’s application process and during the processing of other applications in the past. Those incorrect interpretations were based in part on ambiguous and incorrect statements in guidance documents published by DEP over the years. (Similarly, certain DEP staff made incorrect interpretations of DEP rules regarding a supposedly absolute 500-foot length limit for any dock in Monroe County.) See Conclusions of Law for the correct interpretations of DEP rules. Petitioner owns oceanfront property to the south and adjacent to Mrs. Damico’s. As expressed by Petitioner’s owner and operator, Dr. William Carter, Petitioner has concerns regarding impacts of the proposed docking structure on navigation, boating safety, and natural resources, including seagrasses, stony corals, tarpon, and bonefish. Several changes were made to the proposed docking structure to address concerns raised by Petitioner. In the earlier proposals, the access pier would have been supported by 10-inch square concrete piles, which must be installed using a construction barge and heavy equipment. In its final form, to reduce the direct impacts to the seagrasses and stony corals, it was proposed that the first 550 feet of the access pier from the point of origin on the shoreline would be installed using pin piles, which are made of aluminum and are 4.5 inches square inside a vinyl sleeve five inches square, and can be installed by hand. Instead of the planks originally proposed for the decking of the access pier, a grating material was substituted, which would allow greater light penetration to the seagrasses below. The orientation and length of the proposed docking structure was modified several times in an effort to achieve the optimal siting of the mooring platform. Handrails were proposed for the access pier, and no tie-up cleats are provided there. In combination with the elevation of the decking at five feet above mean high water (MHW), the handrails would discourage use of the pier for mooring by making it impractical if not impossible in most cases. Railing also was proposed for the north side of the mooring platform to discourage mooring there, and a sign was proposed to be placed on the north side of the platform saying that mooring there is prohibited. These measures were proposed to restrict mooring to the south side of the mooring platform, where a boat lift would be installed, which would protect the large seagrass beds that are on the north side of the terminal platform. (Mooring an additional boat along the end of the 8-foot long mooring platform, which faces the prevailing oceanic waves, is impractical if not impossible.) To make the docking structure less of a navigation and boating safety hazard, it was proposed that a USCG flashing white light would be installed at the end of the terminal platform. In its final configuration, the docking structure would preempt approximately 2,240 square feet of State-owned submerged land, plus approximately 200 square feet preempted by the proposed boat lift. In addition, it would preempt approximately 900 square feet of Mrs. Damico’s privately-owned submerged land. Mrs. Damico’s private property has approximately 352 linear feet of shoreline. Dr. Lin testified for Petitioner that the proposed docking structure would preempt a total of 3,760 square feet. This calculation included 520 square feet of preemption by the boat lift, but the proposed boat lift is for a smaller boat that would preempt only approximately 200 square feet. Intending to demonstrate that the proposed docking structure would wharf out to a consistent depth of -4 feet MLW, Mrs. Damico’s consultants submitted a bathymetric survey indicating a -4 MLW contour at the mooring platform. In fact, the line indicated on the survey is not a valid contour line, and the elevations in the vicinity do not provide reasonable assurance that the mooring area of the docking structure in its final configuration is in water with a consistent depth of -4 feet MLW, or that there is water of that depth consistently between the mooring area and the nearest navigable channel. The evidence does, however, provide reasonable assurance that the proposed mooring platform is in water with a consistent depth of at least -3 feet MLW, and that there is water of that depth consistently between the mooring area and the nearest navigable channel, which would avoid damage to seagrass bed and other biological communities. The evidence was not clear whether there is another possible configuration available to Petitioner to wharf out to a mooring area with a consistent depth of at least -3 feet MLW, not over seagrasses, and with water of that depth consistently between the mooring area and the nearest navigable channel, that would not require as long an access pier, or preempt as many square feet of State-owned submerged land. A noticed general permit (NGP) can be used for a dock of 2,000 square feet or less, in water with a minimum depth of -2 feet MLW, and meeting certain other requirements. See Fla. Admin. Code R. 62-341.215 and 62-341.427. The evidence was not clear whether an NGP can be used in an OFW in Monroe County in water less than -3 feet FLW, according to DEP’s interpretation of its rules. Cf. Fla. Admin. Code Ch. 62-312.400, Part IV. Initially, mitigation for impacts to natural resources was proposed. However, DEP’s staff determined that no mitigation was required because there would not be any adverse effects from the docking structure, as finally proposed. For the same reason, DEP staff determined that there would be no significant cumulative adverse impacts and that no further analysis of cumulative impacts was necessary. Actually, there will be adverse impacts to natural resources. The biologist for Mrs. Damico determined that there are some seagrasses and numerous stony corals in the footprint of the access pier, in addition to other resources less susceptible to impacts (such as macro-algae and loggerhead sponges). These organisms will be disturbed or destroyed by the installation of the access pier. The biologist quantified the impacts to round starlet corals by assuming the placement of two supporting piles, four feet apart, every ten feet for the length of the pier, and assuming impacts to the stony corals in a quadrat centered on each pile location and three times the diameter of the pile. Using this method, it was estimated that approximately 1,505 square centimeters of the stony corals would be destroyed by the installation of the docking structure. The impacts assessed by Mrs. Damico’s biologist and DEP assume that construction would “step out” from shore and, as construction proceeds, from already-built segments of the pier, until water depths allow for the use of a construction barge without unintended damage to the natural resources in the area. This construction method is not required by the proposed SLERP. It would have to be added as a permit condition. Petitioner did not prove that the impacts to a few seagrasses and approximately 1,505 square centimeters of the stony corals would damage the viability of those biological communities in the vicinity of the proposed docking structure. Direct and indirect impacts to other species from the installation and maintenance of the docking structure would not be expected. Impacts to listed species, including manatees and sawfish, would not be anticipated. Manatees sometimes are seen in the vicinity but do not rely on the area for foraging or breeding. Sawfish are more likely to frequent the bay waters than the ocean. Migratory tarpon and bonefish use the area and might swim out around the docking structure to avoid passing under it. Resident tarpon and some other fish species might congregate under the docking structure. The proposed docking structure does not block or cross any marked navigation channel and is in a shallow area near the shore where boats are supposed to be operated at reduced speeds. Nonetheless, the proposed structure poses more than a casual navigation hazard, especially due to its length, which is significantly greater than any docking structure in the vicinity. In conducting its staff analysis of the impacts on navigation and boating safety, DEP understood that the closest marked navigation channel is at least two miles away from the proposed docking structure. Actually, there also is a marked channel at the Tavernier Creek, which is less than half a mile north of the site. It is not uncommon for boaters to leave the marked Tavernier Creek channel to motor south in the shallow water closer to shore; they also sometimes cut across the shallow waters near the site to enter the Tavernier Creek channel when heading north. There also are other unmarked or unofficially-marked channels even closer to the proposed docking structure. In good weather and sea conditions, the proposed docking structure would be obvious and easy to avoid. In worse conditions, especially at night, it could be a serious hazard. To reduce the navigational hazard posed by the dock, reflective navigation indicators are proposed to be placed every 30 feet along both sides of the access pier, and the USCG flashing white light is proposed for the end of terminal platform. These measures would help make the proposed docking structure safer but would not eliminate the risks entirely. The light helps when it functions properly, it can increase the risk if boaters come to rely on it, and it goes out. Both the light and reflective indicators are less effective in fog and bad weather and seas. The risk increases with boats operated by unskilled and especially intoxicated boaters. It is common for numerous boaters to congregate on weekends and holidays at Holiday Isle, which is south of the proposed docking structure. Alcoholic beverages are consumed there. Some of these boaters operate their boats in the vicinity of the proposed docking structure, including “cutting the corner” to the Tavernier Creek pass channel, instead of running in deeper water to enter the pass at the ocean end of the navigation channel. This increases the risk of collision, especially at night or in bad weather and sea conditions. DEP sought comments from various state and federal agencies with jurisdiction over fisheries and wildlife. None of these agencies expressed any objection to the proposed docking structure. No representative from any of those agencies testified or presented evidence at the hearing. Area fishing guides and sports fishermen fish for bonefish and tarpon in the flats in the vicinity of the proposed docking structure. If built, the proposed docking structure would spoil this kind of fishing, especially bonefishing, or at least make it more difficult. The more similar docking structures installed in the area, the greater the difficulties in continuing to use the area for this kind of fishing. On the other hand, resident tarpon and some other fish species could be attracted by such docking structures. Mrs. Damico’s application initially offered a money donation to the Florida Keys Environmental Restoration Trust Fund if mitigation was required. The proposed permit includes a requirement to donate $5,000 to the Florida Keys National Marine Sanctuary (FKNMS), before construction begins, for the maintenance of mooring buoys to reduce recreational boater impacts at the coral reef areas. The reefs are miles from the site of the proposed docking structure, and the donation does not offset project impacts. Rather, as stated in the proposed permit, its purpose is to “satisfy public interest requirements.” As a federal agency, the FKNMS does not accept donations directly. Donations would have to be made to the Sanctuary Friends of the Florida Keys (SFFK) for use by the FKNMS for buoy maintenance. A condition would have to be added to the ERP to ensure that the donation would be used for the intended purpose. In a bid to defeat Mrs. Damico’s attempt to satisfy public interest requirements, Petitioner offered to donate $10,000 to SFFK for the buoy maintenance if DEP denied the permit. Petitioner’s offer should not affect the evaluation of the proposed docking structure under the public interest criteria. DEP staff evaluated the proposed ERP under the public interest criteria to be essentially neutral and determined that the $5,000 donation would make it clearly in the public interest. This analysis was flawed. With or without the $5,000 donation, the proposed docking structure would have an adverse effect on the public health, safety, and welfare; an adverse effect on navigation; an adverse effect on fishing or recreational values in the vicinity; and an adverse effect on the current condition and relative value of functions being performed by areas affected by the proposed activity. It would not have any positive public interest effects. Its effects would be permanent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order denying a permit for the proposed docking structure; if granted, there should be a condition requiring construction to “reach out” from shore and, as construction proceeds, from already-built segments of the pier, until water depths allow for the use of a construction barge without unintended damage to the natural resources in the area. DONE AND ENTERED this 14th day of October, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2011. COPIES FURNISHED: Patricia M. Silver, Esquire Silver Law Group Post Office Box 710 Islamorada, Florida 33036-0710 Brittany Elizabeth Nugent, Esquire Vernis and Bowling of the Florida Keys, P.A. at Islamorada Professional Center 81990 Overseas Highway, Third Floor Islamorada, Florida 33036-3614 Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact On April 28, 1987, Nassau County applied to the Department of Environmental Regulation for a dredge and fill permit to construct a public boat ramp, dock, and unpaved parking lot within the landward extent of the St. Mary's River. The St. Mary's River is a class III water of the state, and is not an "outstanding" Florida water. The boat ramp is designed to be 12 feet wide and 66 feet long. The dock is designed to be 60 feet by 4 feet. The unpaved parking lot is designed to be 100 feet by 80 feet. The relationship of these projects is shown by the drawing that is R. Ex. 4. The jurisdiction of the Department of Environmental Regulation is determined by the dominant plant species on the land. Where there are no plant species, jurisdiction extends to the mean high waterline. With respect to the proposed boat ramp, dock, and parking lot, the DER's jurisdiction extends to the area above the blue line on R. Ex. 4. Thus, the DER jurisdiction extends to a small portion of the northwest corner of the parking lot, most of the dock (a 20 foot section of the dock ramp is excluded), and 44 feet of the end of the boat ramp that extends into the St. Mary's River. The small portion of the parking lot is not a deep swamp, but is a transitional wetland. This portion of the parking lot appears to be about 50 square feet of the total of 8,000 square feet of the entire parking lot, judging from the dimensions of the ramp and the dock on R. Ex. 4. The boat ramp will require the removal of 80 cubic yards of soil. The ramp is to be constructed at a place alone the river where there is no wetland vegetation of significance, and excavation will not remove any natural filtering vegetation of importance. At this point, the bank of the river is steep and the river is about 200 foot wide at this point, and has a relatively strong flow of water. The material to be excavated is fine. Any turbidity caused by excavation should be soon dissipated in the river. Physical barriers constructed during the excavation should adequately protect against excess turbidity. Special condition 3 of the proposed permit requires that turbidity controls be used throughout the project to contain any turbidity generated that exceeds state water quality standards. R. Ex. 3. The dock involves the placement of pilings on the river bottom along the shoreline of the river. If the dock were to be a private dock, it would be exempt from the requirement of a DER permit. The dock will not destroy wildlife habitat or cause the loss of important wetland. The flow of water would continue through and around the pilings of the dock and across the end of the ramp. The project would not change the natural flow of the river, cause erosion, or be a hazard to navigation. The project will not harm marine productivity. The project will not adversely affect public health, safety, or welfare. There are no significant historical or archeological resources affected by the project. The project will enhance fishing and recreational values by providing access to fishermen and boaters to the river. A small portion of the parking as shown on R. Ex. 4 will result in the destruction of a transitional wetland, but the portion is not significant in comparison with the remaining wetland. The alteration to the wetland is lessened by the fact that the parking lot will be unpaved. The Petitioners presented evidence as to alternative sites that may be available to the County for a boat ramp, and evidence that the proposed public boat ramp may harm the adjacent or nearby property of the Petitioners due to noise and litter from public use. There is no evidence that the project will have an environmental impact upon the property of the Petitioners.
Recommendation For these reasons, it is recommended that the Department of Environmental Regulation enter its final order issuing permit number 451193582 to Nassau County with the specific conditions contained in the intent to issue dated June 26, 1987. DONE and ENTERED this 11th day of March, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3838 The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties. Findings of fact proposed by the Petitioner: 5 and the second sentence of 6. These proposed findings are issues of law, not fact. Findings of fact proposed by the Respondent: None proposed. COPIES FURNISHED: Gordon E. Hart, Esquire 205 Center Street Fernandina Beach, Fla. 32304 William H. Congdon, Esquire Assistant General Counsel Office of General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Michael S. Mullin, Esquire Nassau County Attorney Post Office Box 1010 Fernandina Beach, Florida 32304 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues presented for consideration by the hearing officer were as follows: Whether the project would adversely the public health, safety, or welfare or the property of others; Whether the project would adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project would adversely affect navigation; Whether the project would adversely affect the fishing or recreational values in the vicinity of the project; Whether the project would be of a temporary or permanent nature; and Whether the project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed activity.
Findings Of Fact On February 21, 1985, the Respondent, John Spang, applied to the Department of Environmental Regulations, Department of natural Resources and the Army Corp. of Engineers for permits necessary to construct two docking facilities, one on each side of the east end of Coronado Bridge, commonly known as the "North Bridge" on the Indian River, north in New Smyrna Beach, Volusia County, Sections 55 and 9, Township 17 South, Range 34 East. The proposed docks include a total of 24 boat slips. The proposed docks are within 25 feet of the right-of-way of the Coronado Bridge on both the north and south sides. The proposed docks consist of four piers. The piers, from south to north, are 101 feet, 102 feet, 122 feet and 122 feet in length respectively. See Respondent's Exhibit #2. The piers south of the bridge are 75 to 80 feet from the east edge of the channel of the Intracoastal Waterway. The piers north of the bridge are 60 to 65 feet from the east edge of the channel of the Intracoastal Waterway. The proposed docking facilities shall service commercially zoned properties `to which they shall be attached and, in particular, the Riverview Hotel and Charlie's Blue Crab Restaurant, at the Riverview. The Petitioners, Grover Ryan and Margaret Ryan, own the commercially zoned property adjacent to the subject property to the south, located at 100 West Columbus Avenue, New Smyrna Beach, Florida. The Ryans operate a commercial business. On March 17, 1986, the Ryans filed a petition for an administrative hearing. Panet E. and Jerrie L. Peterson of 200 Canova Drive, New Smyrna Beach, Florida own the real property located on the river adjacent to the Ryans but not adjoining the proposed docking area or the property of the applicant. On April 15, 1986, the Ryans filed a petition for an administrative hearing. On February 14, 1986, the Department of Environmental Regulation issued Permit Number 64-099806-4, to construct the proposed docking facilities, subject to specific modifications and conditions to those applications. Issuance of the permit was based upon the following: The Army Corp. of Engineers assessed the proposed docking facilities and determined that the project will not impede navigation or otherwise cause danger to the health, safety or welfare of vessels and persons traveling in the Intracoastal Waterway. On April 18, 1986, the Army Corp. of Engineers issued Permit No. 85IPL-20644 for construction of piers pursuant to the applicant's proposal for docking facilities. The harbor and dockmaster for the City of New Smyrna Beach determined that the proposed docking facilities would not impede or endanger navigation of the river and Intracoastal Waterway, if pilots entering and leaving the docking area carefully follow the rules of road. Actual testing of the proposed site by the Department of Environmental Regulation revealed no seagrasses or rooted macrophytes which might be destroyed by the proposed docks. Flushing in the river was found to be excellent and would alleviate any short-term turbidity problems and would further mitigate against any pollutants from the docking areas to the extent that no water quality violations were anticipated. The United States Department of Interior, Fish and Wildlife Service determined that the area of the proposed docking facility would not have an adverse affect on the manatee otherwise endanger them. Although the dock will restrict fishing from the bridge between the shore and channel, it will not significantly affect adversely the recreational uses. Generally, bridge fishing is being restricted in Florida due to the hazards to fishermen from traffic. The fishing from boats will be unaffected. There is no marine production in the area. The boat traffic in the vicinity of the proposed docking facility is considered heavy, and there are no restrictions on boating speed. The bridge is raised frequently, but heavy traffic requires boats to wait on weekends. The bridge fenders and concrete abutments of the bridge block the lateral view of boaters as they approach, pass under and leave the Coronado Bridge, and likewise obscures the boats in the bridge area from boaters in the proposed dock area. The closest dock to the south of the proposed docks is owned by the Ryans. Mr. Ryan has used his dock for forty-seven (47) years and uses it to dock his large commercial shrimp boat. Mr. Ryan operates a wholesale/retail seafood store on the property which he owns adjoining the Spang's property. As originally proposed, the southernmost dock sought by the Spang's would interfere with Ryan docking his boat at Ryan's dock. The next dock to the south of the proposed docks and Mr. Ryan's dock is owned by the Petersons. This a forty (40) foot dock which is used for noncommercial purposes. Because it does not protrude as far into the water as Ryan's dock, there is no hazard created by the proposed docks. A conditioned modification to the application was the reduction in size of the southernmost docking facility by 15 feet and the construction of handrails on the outer edges of each dock to prevent mooring of boats along the outer edges. The reduction of the southernmost dock by 15 feet, together with handrails and prevention of mooring of boats on the outside of the docks provided reasonable assurance that there was no impediment to navigation, to include Ryan docking his boat. However, the design of the exits to the two proposed docking areas promotes direct entry at right angles into the Intracoastal Waterway. This is potentially hazardous. Petitioner Ryan has an easement over the Spang property to permit public access to Ryan's property from the right-of-way of the bridge and highway. Spang's restaurant, which has already been built at the site, actually traverses the easement, not the proposed docking facility. The proposed facility does not interfere with the easement the Ryans hold landward of the mean high waterline from the highway right-of-way south to the Ryan's business.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Permit No. 64-099806-4 with the size limitation and requirements for handrails established by the agency and that the layout of the docks be modified as drawn in Appendix B to discourage exiting the docking areas at right angles to the channel of the Intracoastal Waterway. DONE AND ORDERED this 18th day of July 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0992 The following action was taken with regard to the proposed findings of fact submitted in behalf of John Spang: Adopted as Recommended Order paragraph 9. Adopted as Recommended Order paragraph 2. Rejected. Paragraph 5 of Ryan's proposed findings of fact adopted as more complete and accurate. Adopted as Recommended Order paragraph 6. 5,6. Adopted and combined as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 9. Adopted substantially as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 8. 10,11. Adopted as Recommended Order paragraph 9(a). Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Adopted as Recommended Order paragraph 9 (d). Adopted as Recommended Order paragraph 9 (b). Irrelevant. Effect on the persons named is not a basis for review. The following action was taken with regard to the proposed findings of fact submitted in behalf of the Ryans and Petersons: Adopted as Recommended Order paragraph 1. Rejected because the applicants' finding cited 24 which was adopted thereby binding the applicant to the lower number. Adopted as Recommended Order paragraph 3. Adopted as Recommended Order paragraph 4. Adopted as Recommended Order paragraph 5. Adopted in part and included in Recommended Order paragraph 12. 7,8. Rejected in favor of Recommended Order paragraph 11. 9. Adopted as Recommended Order paragraph 11. 10,12. Adopted as Recommended Order paragraph 13. 11,13. Adopted as Recommended Order paragraph 14. Adopted as Recommended Order paragraph 11. Adopted as Recommended Order paragraph 12. Rejected as a list of actors without any conclusion stated. 18,19. Rejected in favor of Recommended Order paragraph 10 which more accurately summarizes the more credible facts regarding fishing. 20,21,22. Rejected in favor of paragraph 9(d) which more accurately summarizes the more credible facts regarding danger to manatees. Rejected as contrary to the facts. Rejected as contrary to the facts. Adopted in part in Recommended Order paragraph 16. Rejected as contrary to the facts. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. The following action was taken with regard to the Agency's proposed findings of facts. Adopted as Recommended Order paragraph 1. Adopted in part in Recommended Order paragraph 16 and in part in Recommended Order paragraph 10. 1st sentence: Rejected as irrelevant in light of the Agency's subsequent issuance. Remainder: Adopted as Recommended Order paragraph 9(c). Adopted generally as Recommended Order paragraph 16. 5,6. Adopted generally as Recommended Order paragraph 14. Adopted generally as Recommended Order paragraph 15. Adopted as Recommended Order paragraph 9(d). Adopted as Recommended Order paragraph 9(a). Adopted as Recommended Order paragraph 9(b). Adopted as Recommended Order paragraph 17. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 William F. Hathaway, Esquire Post Office Drawer H New Smyrna Beach, Florida 32070-1586 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Hal Spence, Esquire 221 N. Causeway Post Office Box 1266 New Smyrna Beach, Florida 32070-1266
