The Issue The issue to be determined is whether Consolidated Environmental Resource Permit No. 50-0126380-005-EI and State- owned Submerged Lands Lease No. 500729109 for the Sailfish Marina, North Dock, should be issued as proposed in the June 30, 2017, proposed agency action issued by the Department of Environmental Protection (“DEP”), in its own capacity, and in its capacity as staff to the Board of Trustees of the Internal Improvement Trust Fund (“BTIITF”).
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties The Buccaneer Condominium is a Florida condominium association established pursuant to and governed by chapter 718, Florida Statutes, and subject to the Declaration of Condominium recorded within the public records of Palm Beach County, Florida. The Buccaneer Condominium is a mixed-use condominium facility located at 142 Lake Drive, West Palm Beach, Florida 33404. The Buccaneer Condominium offers, as an amenity of its 18 condominium units, the 18-slip Buccaneer Dock that is part of the condominium property as a common element of the Buccaneer Condominium. The unit owners, as members of the Buccaneer Condominium, each own an undivided interest in the common elements of the condominium, and, therefore, own an undivided interest in the Buccaneer Dock. The Buccaneer Condominium designates and licenses a dock space to each condominium owner, and each owner has the irrevocable and exclusive right to use of a dock space. Pursuant to section 718.111(3), the Buccaneer Condominium has the non-exclusive right to file suit on behalf of the members of the Association relative to claims which involve common elements and reserving the statutory and common law right for unit owners to bring any action without participation by the Buccaneer Condominium. Mr. Sharfi is the President of the Buccaneer Condominium and is authorized to act on its behalf pursuant to the Declaration of Condominium and associated corporate bylaws. In addition to being President of the Buccaneer Condominium, Mr. Sharfi is a member of the Buccaneer Condominium by virtue of his ownership of multiple condominium units, along with the irrevocable and exclusive right to use Buccaneer Dock slips nos. 2, 3, 4, 5, 6, 7, and 8, all of which face the proposed North Dock. BUCC18 owns title to Unit 18 at the Buccaneer Condominium, along with the irrevocable and exclusive right to use Buccaneer Dock slips no. 9, which faces the proposed North Dock. Great American is the owner of real property located at 98 Lake Drive, Palm Beach Shores in Palm Beach County, Florida, known as the Sailfish Marina and Resort (“Sailfish Marina”). Great American purchased the Sailfish Marina in 2004 and has continued to operate the property as a commercial and recreational marina, resort, and restaurant. Great American is the Applicant and proposed recipient of the ERP and SSL Authorization at issue in this proceeding. The DEP is an agency of the State of Florida pursuant to section 20.255, Florida Statutes. The DEP is the permitting authority in this proceeding and issued the Permit at issue in this proceeding to Great American. The BTIITF is a collegial body whose existence is reaffirmed by section 253.001, Florida Statutes. The BTIITF holds title to the sovereignty submerged lands within the State in trust for the use and benefit of the public pursuant to Article X, Section 11 of the Florida Constitution. The DEP performs staff duties and functions on behalf of the BTIITF related to the review of applications for authorization to use sovereignty submerged lands necessary for an activity regulated under part IV of chapter 373 for which the DEP has permitting responsibility. § 253.002(1), Fla. Stat. The DEP has been delegated the authority to take final agency action, without any action by the BTIITF, on applications for authorization to use sovereignty submerged lands for any activity for which the DEP has permitting responsibility. § 253.002(2), Fla. Stat.; Fla. Admin. Code R. 18-21.0051(2). Standing Mr. Sharfi testified that the proposed North Dock will adversely impact Petitioners’ interests in two ways. First is “the value of the house itself the unit itself since it’s associated with the dock size that it can support and the boats that you can put in it, so smaller boat smaller revenue that it generates and the lower value of the house itself.” In other words “[t]he rental income from the slip.” Second is safety, in that “[t]he boats that are docked at the south facing going in and out can be damaging A, the other boats as well as the dock and marina itself.” However, as to the issue of safety, neither the Buccaneer Condominium nor Mr. Sharfi owns any vessel moored in slip nos. 2 through 8. Rather, the slips are rented to third parties. BUCC18’s manager, Craig Doyle, testified that its interests will be adversely impacted because the proposed North Dock narrows the fairway and increases the potential for collisions and injury to property or people. In addition, Mr. Doyle indicated that each condominium unit “is proportional to the size of the slip and the size of the vessel that it can accommodate,” and that restricting the size of vessels that could use slip no. 9 “would reduce significantly the value of my unit.” Mr. Doyle also testified that he has a “big concern” relative to possible fuel spills, which might occur if there was a collision at the Buccaneer’s T-Dock. However, as previously indicated, environmental concerns are not at issue. Issues for Disposition The only facts and law related to the ERP and SSL Authorization at issue in this proceeding are those related to whether the proposed North Dock adversely impacts navigation, otherwise creates a navigational hazard, or unreasonably infringes upon Petitioners’ riparian rights, such that the Permit ought to be denied. The location of the riparian line between Great American’s property and the Buccaneer Condominium (the “riparian line”) is as depicted on the proposed ERP and SSL Authorization and is not in dispute. Local Conditions The Sailfish Marina and Buccaneer Dock are located just to the north of the Lake Worth Inlet. The average tidal current in the vicinity of the proposed North Dock is one knot, with the potential to run at three to four knots during peak high and low tides, and with seasonal variability. In addition, prevailing winds, generally from the north during the winter and from the south during the summer, can affect vessel maneuverability. Sailfish Marina Existing North Dock Great American currently leases 235,616 feet of sovereignty submerged land from the BTIITF pursuant to Sovereignty submerged Land Lease BOT File No. 500729109, PA No. 50-0126380-004 (the “SSLL”). The SSLL authorized the construction of a “93-slip commercial docking facility to be used exclusively for commercial and recreational vessels in conjunction with an upland commercial marina facility, with fueling facilities,” and includes a requirement that a minimum of 90 percent of slips be available and open to the public on a first-come, first-serve basis. The existing north dock was built in 1986 as a 3,909-square-foot fixed concrete dock with finger piers and associated wood and metal mooring pilings. Of the 32 existing north dock slips, 16 face the Buccaneer Dock. In addition, there is room for at least one vessel to moor parallel to the end of the existing north dock T-head. The existing north dock extends 300 feet from Great American’s upland property into Lake Worth, terminating at the eastern edge of the Lake Worth navigation channel. The western boundary of the current SSLL is located 20 feet west of the existing north dock’s T-Head, to accommodate mooring of vessels on the T-Head. The western boundary of the SSLL is not changed by the Permit. The northern boundary of Great American’s current SSLL runs in a straight line commencing at a point roughly 35 feet south of the riparian line at the seawall and angling northward toward the Lake Worth navigational channel to a point 25 feet south of the riparian line at the seaward end of the existing north dock.1/ The slips on the north side of the existing north dock are double-loaded slips, each accommodating two boats and bounded by finger piers on each side. Each double-loaded slip is 33 feet wide. The slips are approximately 30 feet in length, measured from the center pier to the outermost mooring pilings. The mooring pilings associated with the 10 most landward-existing north dock slips, which slips directly face the nine slips of the Buccaneer Dock, are in a line roughly 52 to 53 feet south of the riparian line. The mooring pilings associated with the six slips at the waterward end of the existing north dock start at approximately 32 feet south of the riparian line, and extend in a line to the west towards the Lake Worth navigation channel at a slight northerly angle to an end point approximately 25 feet south of the riparian line. Thus, the westernmost six slips are well in excess of 30 feet in length. At present, the space between the Buccaneer Dock’s outermost pilings and the pilings associated with the 10 most landward-existing north dock slips is approximately 93 feet. Boats mooring in the north-facing slips of the existing north dock are typically in the range of 38 to 42 feet in length. Boats mooring in these slips extend 12 feet or more beyond the line of mooring pilings. The open-water distance between the Buccaneer Dock’s outermost pilings and the existing “bow line” of boats docked at the existing north dock and facing the Buccaneer Dock on the date that Joint Exhibit 1 was taken was from roughly 81 to 82 feet. Since the current Great American SSLL extends well beyond the “bow line,” there is nothing to prevent longer boats from mooring at the Sailfish Marina slips. Boats mooring in the north-facing slips of the existing north dock use the open water between the Sailfish Marina and the Buccaneer Dock to access the Lake Worth navigation channel. The Buccaneer Dock The Buccaneer Dock was constructed in 1958, prior to any regulatory rules being in place, and is, therefore, determined to be a grandfathered structure. From a regulatory perspective, it is a “private residential multi-family dock or pier” as defined in Florida Administrative Code Rule 18-21.003(47), exclusively serving the 18-unit Buccaneer Condominium. It consists of 18 dock spaces, nine of which face south towards the Sailfish Marina and nine facing north. Dock spaces are reserved to their assigned unit and limited in use to the unit owner or persons renting the unit from the owner. There is no use of the Buccaneer Dock by the public. Only those slips on the south side of the Buccaneer Dock facing the Sailfish Marina, numbered sequentially starting at the seawall with slip 1 and ending at slip 9, were alleged to be affected by the ERP and SSL Authorization. The Buccaneer Dock extends 162 feet from the seawall. It terminates 15 feet east of the point at which the proposed North Dock will “jog” 10 feet to the north. The Buccaneer Dock includes a fueling facility at its seaward end. The proposed Great American SSLL facing the Buccaneer Dock will be set back feet from the riparian line. The Buccaneer Condominium’s Sovereignty Submerged Land Lease (“The Buccaneer SSLL”) boundary is set back approximately feet from the riparian line at a point closest to the seawall and approximately 39 feet from the riparian line at its westernmost point. Thus, there is approximately 71 to 74 feet between the Great American SSLL (in either its current or proposed configuration) and the Buccaneer SSLL. The Buccaneer Dock south slips, particularly those towards the seaward side, are between 67 to 70 feet in length, measured from the center pier to the outermost mooring pilings. The slip length is largely governed by the placement of the pilings, with the finger piers extending from the center pier being much shorter in comparison, generally 25 feet or less in length (as roughly scaled from Joint Exhibit 19). The outermost mooring pilings are set at the southernmost edge of the Buccaneer SSLL. Thus, the Buccaneer Condominium has used all of its preempted SSLL area structures, including pilings, associated with the Buccaneer Dock. Boats using slips 1 through 9 of the Buccaneer Dock vary in size and routinely include sport-fishing boats from 60 to 65 feet in length. Vessels using slips 1 through 9 (as is the case with vessels using the Sailfish Marina existing north dock) back into their berths, and exit moving forward. In order to maneuver a vessel exiting the Buccaneer Dock, the stern of an outgoing vessel must clear the outermost mooring pilings. Thus, 65-foot vessels maneuvering in the space between the Buccaneer Dock and the Sailfish Marina regularly use the Sailfish Marina’s SSLL area, and even enter empty Sailfish Marina slips in order to maneuver in and out of south-facing slips of the Buccaneer Dock. The Proposed North Dock Construction of the proposed North Dock includes removal of the entire existing north dock and its mooring pilings. The ERP authorizes Great American to replace the existing north dock with a 6,004-square-foot floating dock containing 12 south-facing slips, which includes one slip at the T-head. The proposed North Dock will have no north-facing slips. The proposed North Dock extends 300 feet westward into the waterway from the seawall, which is the length of the existing north dock. The western boundary of Great American’s current SSLL remains unchanged by the SSL Authorization. The proposed North Dock will not encroach into a marked or customarily used navigation channel. Commencing at the seawall and extending seaward for 175 feet, which exceeds the Buccaneer Dock’s 162-foot length, the proposed North Dock will be set back 35 feet from the riparian line. The northern edge of the proposed North Dock will be approximately 72 to 74 feet from the Buccaneer Dock’s outermost pilings. At a point 175 feet seaward (west) of the seawall, the proposed North Dock “jogs” 10 feet to the north, and is, thus, set back 25 feet from the riparian line for the remaining 125-foot length of the dock. There is no “facing” dock for that remaining 125 feet. The proposed North Dock complies with the 25-foot setback requirement from the riparian line as required by rule 18-21.004(3)(d). Despite the modification, the current and proposed SSLL boundaries are not substantially or substantively different. There being no northward-facing slips at the proposed North Dock, boats using the Sailfish Marina will no longer use the open space between the Buccaneer Dock and the Sailfish Marina. No mooring will be permitted on the north side of the North Dock. “No-mooring” signs are to be posted along the northern edge of the North Dock, along with handrails to prevent mooring. Great American has round-the-clock staff to monitor the marina and prevent boaters from mooring on the north side of the proposed North Dock. Great American also agreed to not place cleats on the north side of the proposed North Dock to further discourage mooring. Affects on Navigation Petitioners challenge to the ERP was limited to whether it adversely affects the public health, safety, or welfare, or property of others and whether it adversely affects navigation, as set forth on Florida Administrative Code Rule 62-330.302(1)(a)(1) and (3). Petitioners challenge to the SSL Authorization was limited to its alleged unreasonable interference with riparian rights and whether it creates a hazard to navigation, as set forth in rule 18-21.004(3)(c), (7)(f) and (g). Since 1985 to present, vessels from 60 to 65 feet in length have used the Buccaneer Dock south slips and the navigational fairway between the Buccaneer’s south slips and the Sailfish Marina’s existing north dock. There is some evidence to suggest that the average overall length of vessels has increased since 1986 (see Great American Exhibit 12).2/ The evidence demonstrates that vessels from the Buccaneer Dock routinely use waters not only within Great American’s riparian zone, but within Great American’s SSLL. Mr. Adams testified that when leaving the Buccaneer Dock in one of the larger boats, the vessel “crosses over where the proposed Sailfish north dock is,” and that he could shake the hand of a person standing on the bow of one of the sailboats moored at the Sailfish Marina. Mr. Fleming testified that in his experience maneuvering a 61-foot vessel out of the Buccaneer Dock, he would be “very close to the existing submerged land lease of the Sailfish Marina” before he could even begin to maneuver the vessel, partly due to the tightness of the Buccaneer Dock slip, and could not safely maneuver without utilizing the Sailfish Marina’s sovereignty submerged land lease area. The evidence further established that, in some instances, vessels from the Buccaneer Dock have had to pull partially into vacant Sailfish Marina slips in order to perform a three-point turn to exit the navigation fairway. Length of Vessel Maneuvering Ratio The parties spent a great deal of time and effort explaining the navigational ratios that come into play when maneuvering a vessel in tight quarters. Some experts relied upon the 1.5 rule, meaning that space equal to 1.5 times the length of a vessel is necessary to safely maneuver the vessel in confined areas. Another opined that space equal to two times the length of the vessel would be warranted in the space between the Buccaneer Dock and the Sailfish Marina due to local currents and winds. However, Mr. Cox testified as to his opinion that modern vessels with twin screws, bow thrusters, pod drives, and other modern equipment were capable of maneuvering in space equivalent to the length of the vessel, plus 20 feet. The 1.5 rule is the most commonly applied and appears in the American Society of Civil Engineers’ Manual and various other guides and handbooks. The vessel length, plus 20-feet rule, may well be a refinement of the 1.5 rule based on modern, up-to-date means of propulsion. However, it is unnecessary to make findings or conclusions regarding the preference for one rule over the other. The distance between the Buccaneer Dock pilings and the location of the proposed North Dock is 74 feet+/-. A preponderance of the evidence substantiates that vessels of 60 feet and greater will be unable to safely maneuver from the Buccaneer Dock without a significant risk of making contact with the proposed North Dock. Thus, under any of the guidelines, the space is inadequate to allow a 60-foot boat to maneuver. However, a preponderance of the evidence equally supports a finding that a 50-foot vessel could maneuver into and out of the Buccaneer Dock without incident if the proposed North Dock were to be constructed. Therefore, the issue for this proceeding can be boiled down to the following: does the right of a person to own and berth a vessel of a particular size that requires the use of its adjacent property owner’s SSLL to maneuver supersede the right of the adjacent property owner to make use of the sovereignty submerged lands that it has leased from the State of Florida? There is no question that in order for 60-foot vessels to safely maneuver from the Buccaneer Dock, it is necessary that they not only cross into Great American’s riparian space, but also into Great American’s SSL leased space in either its current or proposed configuration. If 60-foot vessels are allowed to berth at the Buccaneer Dock, the effect will be to essentially appropriate Great American’s sovereignty submerged lands for the benefit of the Buccaneer Condominium unit owners. Put in other terms, do the owners of units in the Buccaneer Condominium have the right to berth 60-foot vessels at the Buccaneer Dock, and by so doing, prohibit Great American from using its sovereignty submerged lands3/ on the ground that it will impede the Buccaneer Condominium’s private rights of navigation? The Boating Public The “navigational fairway” between the Buccaneer Dock and the existing north dock is not a marked or customarily used navigation channel. Although the navigational fairway is not barricaded, it is not a publicly used area, as is the Lake Worth navigation channel, or other areas that are customarily used by the public. The testimony of incidental use of the fairway by small boats and swimmers is not sufficient to transform the fairway into a navigational channel, and in any event, those uses will not be impaired by the proposed North Dock. The proposed North Dock will reduce boat traffic in the waters between the Sailfish Marina and the Buccaneer Dock by eliminating all 16 of the Sailfish Marina’s north-facing slips, leaving the waters for the exclusive use of the nine vessels using the Buccaneer Dock’s south slips. Thus, to the extent use of the fairway by small boats and swimmers is relevant, such use is made considerably safer by the construction of the proposed North Dock.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the Consolidated Environmental Resource Permit No. 50-0126380-005-EI and State- owned Submerged Lands Lease No. 500729109 for the Sailfish Marina, North Dock, subject to the general and specific conditions set forth therein. DONE AND ENTERED this 2nd day of November, 2018, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 2nd day of November, 2018.
The Issue The issue to be determined is whether Consolidated Environmental Resource Permit No. 50-0147856-003-EI and State-owned Submerged Lands Lease No. 500022746 for a commercial addition to the multi-family residential dock, known as the Buccaneer Condominium Marina, should be issued as proposed in the December 27, 2017, proposed agency action issued by the Department of Environmental Protection (“DEP”) in its own capacity and in its capacity as staff to the Board of Trustees of the Internal Improvement Trust Fund (“BTIITF”). Unless individually identified, the DEP and the BTIITF will be collectively referred to as “the DEP.”
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Great American is a foreign for-profit corporation doing business in the State of Florida. Great American owns the 144 Property. The 144 Property is located immediately north of, and adjacent to, the Buccaneer Condominium, and shares a riparian line (the “riparian line”) extending waterward from the line separating the upland properties. The location of the riparian line between the Buccaneer Condominium and the 144 Property is as depicted on the proposed ERP and SSL Authorization, and is not in dispute. The 144 Property has 92 feet of shoreline on Lake Worth, and includes the small residential 144 Dock. The 144 Property is used annually by the family of Great American’s principal shareholders. When not being utilized by family members, Great American leases the 144 Property to various individuals. As a rule, all persons using the 144 Property moor vessels at the 144 Dock, which are generally in the 50- to 60-foot range, but which can be up to 80 feet in length. The Buccaneer Condominium is a Florida condominium association established pursuant to and governed by chapter 718, Florida Statutes, and subject to the Declaration of Condominium recorded within the public records of Palm Beach County, Florida (the “Declaration”). The Buccaneer Condominium is a mixed-use condominium facility located at 142 Lake Drive, West Palm Beach, Florida, and is a waterfront riparian owner. The Buccaneer Condominium offers, as an amenity of its 18 condominium units, the 18-slip Buccaneer Condominium Dock that is a common element of the Buccaneer Condominium. The Buccaneer Condominium unit owners each own an undivided interest in the common elements of the condominium, and, therefore, an undivided interest in the Buccaneer Dock. The Buccaneer Condominium designates and licenses a dock space to each condominium owner, and each owner has the irrevocable and exclusive right to use of a dock space. Section 718.111(3) establishes that the Buccaneer Condominium has the non-exclusive right to file suit on behalf of the members of the Association relative to claims which involve common elements, while reserving the statutory and common law right for unit owners to bring any action without participation by the Buccaneer Condominium. Mr. Sharfi is the President of the Buccaneer Condominium and is authorized to act on its behalf pursuant to the Declaration and associated corporate bylaws. Mr. Sharfi is a member of the Buccaneer Condominium by virtue of his ownership of multiple condominium units, along with the irrevocable and exclusive right to use Buccaneer Dock spaces associated with his units. Mr. Sharfi owns Commercial Unit A, which was purchased from Great American in January 2017. The rights granted to Commercial Unit A to use Buccaneer Condominium property and common elements are established in section 5.2.3 of the Declaration. Pursuant to Article VIII, section 8.3 of the Declaration: To the extent permitted by law, any and all riparian rights to add additional dock spaces is hereby reserved, granted and assigned to Unit A and the Owner thereof . . . . Without limiting the foregoing, the Owner of commercial Unit A shall have the right, power, and authority, to the extent permitted by law, to construct any additional dock spaces in the waterway contiguous to the Condominium property . . . provided, however, the use thereof shall be deemed to be and have been designated and assigned perpetually and exclusively to and as an appurtenance to Commercial Unit A. The Buccaneer Condominium and Commercial Unit A are joint applicants for the Permit at issue, with the Buccaneer Condominium being included as an applicant due to its status as an upland riparian owner and current SSLL lessee. DEP is an agency of the State of Florida pursuant to section 20.255, Florida Statutes. The DEP is the permitting authority in this proceeding and issued the proposed Permit. The BTIITF is a collegial body established pursuant to Article IV, section 4(f) of the Florida Constitution, whose existence is reaffirmed by section 253.001, Florida Statutes. The BTIITF holds title to the sovereignty submerged lands within the State in trust for the use and benefit of the public pursuant to Article X, section 11 of the Florida Constitution. The DEP performs staff duties and functions on behalf of the BTIITF related to the review of applications for authorization to use sovereignty submerged lands necessary for an activity regulated under part IV of chapter 373 for which the DEP has permitting responsibility. § 253.002(1), Fla. Stat. The DEP has been delegated the authority to take final agency action, without any action by the BTIITF, on applications for authorization to use sovereignty submerged lands for any activity for which the DEP has permitting responsibility. § 253.002(2), Fla. Stat.; Fla. Admin. Code R. 18-21.0051(2). The Buccaneer Condominium Dock The Buccaneer Condominium Dock was constructed in 1958, prior to regulatory rules being in place, and is, therefore, a grandfathered structure. From a regulatory perspective, it is a “private residential multi-family dock or pier” as defined in Florida Administrative Code Rule 18-21.003(47), exclusively serving the 18-unit Buccaneer Condominium. Petitioner has not challenged the legality of the existing lease or prior leases for the Buccaneer Condominium Dock. The Buccaneer Condominium Dock consists of 18 dock spaces, nine of which face north in the direction of the 144 Dock, and nine of which face south. There is no use of the Buccaneer Condominium Dock by the public. The Buccaneer Dock extends 162 feet from the seawall. The Buccaneer Dock includes a fueling facility at its seaward end. The Proposed Commercial Unit A Dock The proposed Commercial Unit A Dock would be constructed from the end of the Buccaneer Condominium Dock. It is proposed to consist of 12 slips in a double-loaded fashion, with six slips facing north (in the direction of the 144 Dock) and six slips facing south, and two short-term or transient T-head mooring positions for fueling for a total of 14 commercial slips over 2,370 square feet. The T-head will accommodate a fueling station, replacing the current fueling platform at the end of the Buccaneer Condominium Dock. The Commercial Unit A Dock will be approximately 140 feet in length, resulting in a combined structure of 302 feet from the bulkhead westerly towards the Singer Island Channel. The westernmost boundary of the proposed SSLL extends 20 feet beyond the T-head to allow for vessels to tie up at the fueling station. The SSLL will, according to the Permit drawings, extend 324.5 feet into Lake Worth and the Singer Island Channel. The total preempted area for the modified SSLL will be 49,800 square feet. The Commercial Unit A Dock will be open to the general public for use on a first-come, first-served basis to serve the restaurant in Commercial Unit A. Adverse Affects on Navigation/Navigational Hazard The Environmental Resource Permit Applicant’s Handbook (“A.H.”),z Vol. I, provides criteria to be considered in conjunction with the standards established in section 373.414, and Florida Administrative Code Rule 62-330.301, for issuance of an ERP.1/ Section 10.2.3.3 of the A.H. establishes that the DEP is to evaluate and consider the current navigation uses of the surface water in determining whether to issue an ERP. Singer Island Channel The Singer Island Channel runs in a north/south direction and is the navigational channel closest to the Buccaneer Condominium Dock and proposed Commercial Unit A Dock, the 144 Dock, Great American’s Sailfish Marina to the south, and the Cannonsport Marina to the north. The east side of the Singer Island Channel is generally defined by the waterward ends of the docks and marinas in the area, while the western side is defined by the Peanut Island shoal. The Singer Island Channel is widely used, but is not to be confused with the Intracoastal Waterway (“ICW”), which is the main navigational thoroughfare for commercial and recreational vessels in the area, and which runs to the west of nearby Peanut Island. The eastern edge of the proposed SSLL extension will become a part of what is an essentially straight line from the Sailfish Marina docks to the Cannonsport Marina docks. There will be approximately 97 feet of open water between the northwestern corner of the proposed SSLL to the closest point on an imaginary straight line drawn from the nearest Singer Island Channel markers located to the north and south of the proposed SSLL. The visible edge of the Singer Island Channel is, at a minimum, an additional 15 feet west of that imaginary line. Thus, a preponderance of the evidence establishes that the “pinch point” between the SSLL and the navigable edge of the Singer Island Channel is, at its narrowest, 112 feet in width. A preponderance of the evidence establishes that 97 feet of open water is sufficient to allow vessels of the size that frequent the area to easily maneuver if they were to pass at the Singer Island Channel’s narrowest point. Given that there is a minimum of 15 feet of additional open-water space to the visible edge of the Singer Island Channel, there will be no adverse impact to the navigation of the vessels transiting the Singer Island Channel. The finding that the space between the Commercial Unit A Dock SSLL and the edge of the Singer Island Channel is sufficient to allow unimpeded navigation is substantiated by the clearance deemed sufficient to allow for safe navigation beneath the nearby Blue Heron Bridge. The Blue Heron Bridge is north of the proposed Buccaneer Commercial Dock on the ICW. The ICW is the primary channel for commercial, recreational (sport fishermen, yachts, and pleasure craft) and Coast Guard vessels. The passage beneath the bridge is flanked by fixed dolphins or guardrails. The clearance under the bridge is 90 feet, which is sufficient for two vessels to pass in the federally-maintained channel. Petitioner argued that the Blue Heron Bridge is not an appropriate comparator for an evaluation of impediments or hazards to navigation, since the passage beneath the bridge is not in an environment comparable to what would be expected in the vicinity of the proposed Commercial Unit A Dock, i.e. with vessels tying up at the periphery of the channel for fueling, and with vessels maneuvering into and out of nearby slips. The evidence to that effect was disputed, and in any event was not persuasive. The fact that vessels are able to maneuver and pass one another without incident in a space of 90 feet is persuasive evidence that they will be able to do so in a space of 97 feet in width, and even more persuasive that they will be able to do so in a space of 112 feet in width. Recreational vessels often pull up onto the Peanut Island shoal that extends to the north and east from Peanut Island. The shoal has areas that are above water at low tide, and is apparently a popular spot for small-craft boaters to pull up and anchor. The evidence suggests that boaters more commonly pull onto the shoal closer to the northwest corner of the channel, near the Cannonsport Marina, or off to the west of Peanut Island well away from the proposed Commercial Unit A Dock, though there is nothing to prevent boats from pulling onto the shoal in the vicinity of the proposed Commercial Unit A Dock. However, it is illegal to anchor in or block a marked navigational channel, as is the Singer Island Channel, and any vessels doing so would be required to move by the Marine Patrol or the Coast Guard. Finally, an argument was made that vessels standing off while waiting to fuel at the proposed Commercial Unit A Dock would create an impediment to navigation. It was established by a preponderance of the competent, substantial, and credible evidence that there is sufficient space to stand off without interfering with traffic in the Singer Island Channel, particularly in the open water area to the north of the proposed Commercial Unit A Dock, but also to the significantly wider and more open areas to the south of the proposed Commercial Unit A Dock. Furthermore, the area around the proposed Commercial Unit A Dock is in a less congested area than the fueling facility at the center dock of the adjacent Sailfish Marina which, as depicted on Respondent’s Exhibit 20, is flanked by sizable docks. There was no evidence that the Sailfish Marina has been a cause of navigational impediments as a result of vessels standing off for fuel. Based on the record as a whole, including evidence of the existing commercial docks in the area, current channel width, and boating traffic and use patterns in the area, a preponderance of the evidence demonstrates that neither the 112-foot width of open water from the northwest corner of the proposed Commercial Unit A Dock to the edge of the Singer Island Channel at its closest point, nor the 97-foot width as measured to the imaginary channel marker line, creates a condition that is reasonably expected to significantly impede navigability or create a navigational hazard. 144 Property The existing Buccaneer Condominium Dock is 162 feet in length, with a fueling facility at its waterward end. As with the proposed Commercial Unit A Dock fueling platform, an additional 20 feet should be calculated from the end of the dock to account for vessels tying up to fuel. There was no evidence that the existing Buccaneer Condominium Dock impeded access to the 144 Dock by persons affiliated with Petitioner or by the more frequent renters of the 144 Property. The evidence was convincing that the Buccaneer Condominium Dock does not create a condition that is reasonably expected to significantly impede navigability or create a navigational hazard. The proposed Commercial Unit A Dock is designed to extend 140 feet from the end of the Buccaneer Condominium Dock. The proposed Commercial Unit A Dock complies with the 25-foot setback requirement from the 144 Property riparian line as required by rule 18-21.004(3)(d). The area to the north of the 144 Dock is wide open, with more than enough space to maneuver any vessel that currently uses the 144 Dock. Furthermore, the space available for maneuvering in the waters south of the 144 dock will not be appreciably more restricted than the restriction posed by the Buccaneer Condominium Dock, and will be no more restricted than the space for maneuvering between docks at the Sailfish Marina or the Cannonade Marina. Mr. Fleming agreed that there is no adverse navigational condition, vis-à-vis the 144 Dock, resulting from the Buccaneer Condominium Dock. His concern with navigation was based on his assumption that the Commercial Unit A Dock would increase vessel traffic in the area, blocking the fairway to the south of the 144 Dock and increasing the possibility of a collision. That concern can only have merit if it is assumed that the operators of vessels in the area are completely unfamiliar with common maritime rules of right-of-way and maneuvering. The area around the Commercial Unit A Dock will remain less congested than nearby facilities. It is simply implausible, and unsupported by competent, substantial evidence, that the proposed Commercial Unit A Dock will adversely affect navigation to or from the 144 Dock. Petitioner holds a self-certification from the DEP which acknowledges Petitioner’s qualification for an exemption for a residential dock of up to 1,000 square feet at the 144 Property. Such docks are exempt by statute and rule. § 403.813(1)(b), Fla. Stat.; Fla. Admin. Code Rule 62- 330.051(5)(b). Despite the fact that Petitioner is allowed to construct an exempt dock extending from the 144 Property into the waterway, there was no persuasive evidence as to when, or if, the dock would be built, or that the dock, if constructed, would result in the proposed Commercial Unit A Dock being found to adversely affect navigation or create a navigational hazard. A preponderance of the evidence establishes that the proposed Commercial Unit A Dock will not adversely affect or impede navigability, or create a navigational hazard for vessels ingressing and egressing the 144 Dock. In addition to the lack of credible evidence that the Commercial Unit A Dock will adversely affect or impede navigation, the evidence is equally unpersuasive that riparian rights incident to the 144 Property will be impaired. There was no evidence, other than speculation and conjecture, regarding the currently non-existent future 144 Dock, that suggest that Petitioner’s riparian interests would be impaired to any appreciably greater degree than they would be as a result of the current 162-foot Buccaneer Condominium Dock and the additional 20+/- feet for vessels tying up to fuel. In addition, the Commercial Unit A Dock is subject to the 25-foot setback required by rule. A preponderance of the evidence establishes that the proposed Commercial Unit A Dock will not unreasonably infringe upon Petitioner’s riparian rights. Commercial Unit A Dock as an Extension of the Buccaneer Condominium Dock The DEP established the propriety of having the Buccaneer Condominium Association as a co-applicant with Commercial Unit A since it is the holder of the existing lease and an upland riparian interest. See, e.g., Fla. Admin. Code R. 18-21.004(1)(c) and (d). Rule 18-21.004(4)(b)2., which establishes a ratio “of no more than forty square feet of sovereignty submerged land for each linear foot of the applicant’s common riparian shoreline . . . to square feet of multi-family residential dock [the “40:1 rule”]” applies only to private multi-family residential docking facilities. The Buccaneer Condominium Dock is a grandfathered dock based on its existence and configuration prior to the promulgation of the 40:1 rule. There is no proposed extension or material alteration of the Buccaneer Condominium Dock.2/ The 40:1 rule does not apply to the Commercial Unit A Dock because the rule applies only to private residential multi- family docks, and does not apply to commercial slips. Thus, the DEP did not apply the 40:1 rule to the proposed Commercial Unit A Dock. The combined preempted area encompassed by the modified SSLL will not exceed 50,000 square feet, or result in a facility of more than 50 slips. The Buccaneer Condominium Dock, as a grandfathered structure, does not require an exception to the 40:1 rule. There was no persuasive evidence that the Buccaneer Condominium Dock and the Commercial Unit A Dock are part of a common plan of development designed to operate as a single dock for the Buccaneer Condominium. The Buccaneer Condominium Dock will be materially unchanged in use and configuration, and will remain dedicated to the owners of Buccaneer Condominium units. The Commercial Unit A Dock will be a first-come, first-served commercial dock for the primary purpose of allowing transient dockage for patrons of the restaurant on Commercial Unit A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the Consolidated Environmental Resource Permit and Recommended Intent to Grant State-owned Submerged Lands Authorization, Permit No. 50- 0147856-003-EI to the Applicants, the Buccaneer Commercial Unit A, care of Benjamin Sharfi, Trustee of the Benjamin Sharfi Trust 2002, and the Buccaneer Condominium Association of Palm Beach Shores, Inc., subject to the general and specific conditions set forth therein. DONE AND ENTERED this 10th day of January, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 10th day of January, 2019.
Findings Of Fact Petitioner, Florida Clearwater Beach Hotel, Inc., is the owner of Lots 1-5 and 49-52 at 490 North Gulfview Boulevard, Clearwater Beach, Florida. Lots 1-5 are located on the southwest corner of Baymont Street and Gulfview Boulevard and front directly on Clearwater Beach. They measure approximately one hundred feet in depth and one hundred forty-one feet at their widest point. Lots 49-52 lie immediately across the street from Lots 1-5 and are approximately one hundred feet south of Baymont Street. They form a square and measure one hundred feet on each side. Petitioner purchased the property in question in 1978. Prior to that time the two parcels of land enjoyed common ownership and a common development pattern for at least forty years. A twenty-two room facility presently sits on Lots 1-5 and is rented out as ten units. Lots 49-52 are used as a parking lot for the tenants and guests of the facility. The property is presently zoned CTF-28 (High Density Commercial Tourist Facilities), which provides for a complete range of motel/hotel developments. The major emphasis of the district is tourist oriented with a permitted maximum density of forty-two hotel or motel units per acre. Petitioner wishes to destroy the existing structure and replace it with a new rectangular-shaped facility containing approximately twenty-two motel or hotel units. Because of the need to comply with flood ordinances, it must be built on pilings or piers. The proposed new structure will consist of four living levels over grade level parking. Petitioner's property measures less than two hundred feet in depth; therefore, the maximum height of its proposed facility cannot exceed forty feet under existing zoning requirements. Other property owners whose lots exceed two hundred feet in depth may construct buildings not to exceed eighty feet in height. Under present plans, the proposed hotel will have a forty-four foot height, which will require a four-foot variance. Petitioner contends that the hotel cannot be built with smaller dimensions. It also contends that a vista or side setback on the northwest corner of the building is required since present plans call for a small portion of the building to project into the vista area. This is due to the north property line running at an angle to the south property line and the proposed building being rectangular in shape. This variance will be contingent upon the City vacating a right-of-way adjacent to Baymont Street, thereby giving Petitioner an additional twenty feet in which to build its new facility. The City opposes the application on the ground that all criteria necessary to grant a variance have not been met. It specifically points out that the problems encountered by Petitioner are not unique to Petitioner alone, but are hardships common to all area owners.
The Issue The issue is whether Granada Lakes Development Corporation should be fined for alleged violations of the Florida Condominium Act, Chapter 718, Florida Statutes?
Findings Of Fact General Findings Pertaining to the Condominium Granada Lakes Adult RV Resort Condominium is located in Fort Myers, Florida. It consists of 151 units; about 70 have been sold. It was to be developed in three phases. Each Unit is a parcel upon which the purchaser may place a dwelling unit. Granada Lakes Development Corporation is the developer of the condominium. The declaration of condominium for Granada Lakes Adult RV Resort Condominium was recorded in the public records of Lee County on March 11, 1982. The Respondents did not include in the original declaration of condominium which submitted Phase I to condominium ownership the time period within which Phases II and III would be completed. The developer owned all condominium units during 1982. Sale contracts for the first units were executed in 1982. The first sales did not close until early 1983. No units have been offered for sale at the Granada Lakes Adult RV Resort Condominium for approximately eighteen months preceding the day of the hearing. Respondents ceased to be the developer of Granada Lakes RV Resort Condominium at the end of July 1985. Granada Lakes Development Corporation was involuntarily dissolved by the Department of State on about November 1, 1985. Distribution of Statements of Receipts and Expenses for 1983 and 1984 Morgan Lloyd closed the purchase of his unit in February 1983. He served as treasurer for the condominium association from February 1983 until approximately February 1984. Mr. Lloyd prepared a financial statement showing receipts and expenditures for the calendar year 1983. Although this statement is for calendar year 1983, the association's fiscal year for 1983 ended October 31, 1983. The statement of income and expenses for the year 1983 was prepared more than 60 days after the close of the fiscal year. The account balance was determined as of December 31, 1983, so the statement had to have been prepared after that date. It was distributed to unit owners at the first annual meeting of the unit owners, which occurred on February 23, 1984. (This disregards, for the moment, the unit owners meeting held by the developer when it was the sole owner of the units, see Finding of Fact 15, post.) The annual financial report of the association for, fiscal year 1984 was not distributed earlier than March 1985. Proposed Budgets for 1982 through 1984 Proposed annual budgets for the years 1982 and 1983 had been prepared by the developer and were distributed with the prospects for the condominium units. The proposed budget for 1982 (which was included in the prospectus) contained as line item 13 for operating expenses a reserve account for roof replacement, equipment replacement, building painting and pavement resurfacing. It called for an annual reserve funded by all 151 units of $3,415. Copies of the 1985 proposed annual budget of common expenses were mailed to unit owners 13 days prior to the meeting at which the 1985 budget was to be considered. Reserves After the developer began conveying out units in 1983, there was never a meeting of the condominium association at which the membership voted to waive or reduce the funding of reserves shown in the estimated budget in the prospectus of $1.88 per condominium unit per month. These reserve monies were placed in the reserve account quarterly as they were paid by unit owners. The developer did not pay any reserves in 1983 or 1984 for units owned by the developer because, in the developers view, those payments were not due under the resolution passed during the January 5, 1983 membership meeting of Granada Lakes Adult RV Resort Condominium Association, Inc. That meeting had been held at a time when the developer owned all of the units that made up the association. The meeting occurred after distribution of the prospectus, which disclosed the reserve account and showed all units contributing to the payment of common operating expenses, including reserves. That resolution states: the President of the Association then brought up for consideration the proposal by the developer, Granada Lakes Development Corporation, that it guarantee the maintenance fee during the two-year period commencing January 5, 1983. Upon a motion duly made and adopted, the Association agreed that in lieu of the developer paying its maintenance assessments on unsold units that the developer could and did agree to guarantee that for the two-year period stated above the maintenance fee charge to unit owners other than the developer would not exceed the [sic] $31.61 per month and that any shortage that might be incurred in the maintenance of the Association during such period shall be covered by the developer. Such agreement was accepted by all concerned, including the Development Corporation, which is as of the time of this meeting the sole unit owner in the Condominium. The matter of the reserves was also discussed and the Development Corporation, as sole unit owner, agreed with the association to the waiver of the funding of reserves for the same two year period. Based on the payment of $1.88 per unit per month the amount of money which should be in the reserve account from the date of recording of the declaration of condominium until the date the respondent was no longer the developer is $11,554. As of July 1985 the reserve account contained $3,227.35, having a deficit of $8,326.65. Since units began to be sold, there have been no withdrawals made from the reserve account. Mr. Sharp, the president of the developer, testified that he spent approximately the $2,400 for reserve-type expenses but had sought no reimbursement from the reserve account because he wanted the reserve account going. No receipts verifying such expenditures were introduced into evidence. This attempt to offset developer expenses against amounts the developer should have paid into the reserve account of the Association is rejected as unpersuasive. Association Records While he served as Association treasurer, Morgan Lloyd asked on several occasions to see the bills for Association expenses. Mr. Sharp would only tell him the amount of the association's bills, and refused to let Mr. Lloyd see the original bills.
Recommendation A civil penalty for each violation the condominium act, not to exceed $5,000.00 per offense may be imposed under section 718.501(1)(d)4., Florida Statutes (1983). The Division of Florida Land Sales, Condominiums and Mobile Homes may also take affirmative action to carry out the purposes of Chapter 718. Section 718.501(1)(3)2., Florida Statutes (1983). Based on the foregoing, it is RECOMMENDED THAT: For its multiple violations of the condominium act, Granada Lakes Development Corporation shall pay to the Division of Florida Land Sales, Condominiums and Mobile Homes within thirty (30) days of the entry of a final order civil penalty in the total amount of $5,000.00 by certified check payable to the director of the Division. Within thirty (30) days of the issuance of a final order the developer shall pay to the Granada Lakes Adult RV Resort Condominium Association the sum of $8,276.65 representing its liability for reserves from the recording of the date of a. declaration of condominium through July 1985. DONE AND ORDERED this 22nd day of May, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1987. COPIES FURNISHED: Robin H. Conner, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Norman A. Hartman, Esquire GOETZ & HARTMAN Post office Box 6844 Fort Myers, Florida 33911-6844 Granada Lakes Development Corporation C/O All America RV Sales U.S. 41 South Box 806S, Route 13 Fort Myers, Florida 33908 James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-100 Thomas A. Bell, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner l(a). Covered in Finding of Fact 2. l(b). Covered in Finding of Fact 13. l(c). Covered in Finding of Fact 4. 2(a). Covered in Finding of Fact 8. 3(a). Covered in Finding of Fact 1. 3(b). Sentence 1, covered in Finding of Fact 3. Sentence 2, covered in Finding of Fact 7. 3(c). Covered in Finding of Fact 6. 3(d). Rejected as a recitation of testimony, not a finding of fact. 3(e). Covered in Finding of Fact 9. 3(f). Covered in Finding of Fact 9. 3(g). Covered in Finding of Fact 10. 3(h). To the extent relevant, covered in Finding of Fact 5. The date on which witnesses moved into the condominium prior to the date they closed the purchases of their unit is irrelevant. 3(i). Rejected as recitations of testimony, not proposed findings of fact, also irrelevant. 3(j). Rejected as inconsistent with the evidence I find more credible, i.e., that an owners meeting was held by the developer on January 5, 1983. 3(k). Sentence 1, covered in Finding of Fact 11. Sentences 2 and 3, rejected as irrelevant. 3(1). Covered in Finding of Fact 18. 3(m). Generally rejected as a recitation of testimony, not a finding of fact. Covered, however, in Finding of Fact 14. 3(n). Covered in Finding of Fact 12. 3(o). Covered in Finding of Fact 15. 3(p). Covered in Finding of Fact 16. 3(q). Covered in Finding of Fact 17. Rulings on Proposed Finding of Fact Submitted by Respondent 1. No ruling necessary. 2(A). Evidence that meetings of unit owners were held in 1982 and 1983 have been accepted in Findings of Fact 9 and 15. 2(B). Rejected because there is no evidence that for fiscal or calendar year 1982 the reserve requirement had been waived. The only evidence of any meeting of the condominium association in 1982, joint exhibit 5(a) does not show any waiver of reserve requirements for that year. It is inconceivable that the developer, at a meeting where it is the sole owner of all units, may waive reserve requirements when the budget distributed with the prospectus to potential purchasers shows reserves in the estimated operating budget it distributed. See joint exhibit 1. The resolution recorded in the minutes of the meeting of the Condominium Association of January 5, 1983, which purports to waive funding of reserves for two years is ineffective for the reasons discussed in Conclusions of Law 7. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES, Petitioner, DBR DOCKET NO. 85224MVC DOAH CASE NO. 85-4267 GRANADA LAKES DEVELOPMENT CORP., d/b/a GRANADA LAKES ADULT RV RESORT CONDOMINIUM, Respondent. /
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Hurley was 53 years of age when hired by Advance in 1998. He was born on June 19, 1944. His employment relationship with Advance was "at will." His work schedule was determined by Advance and was based entirely on the determination by Advance of its requirement to adequately serve its customers. When Mr. Hurley started working there, he worked Monday, Tuesday, and Wednesday from 7:30 a.m. until 5:00 p.m., although sometimes he worked until 6:00 p.m. Advance is a large retail auto parts retailer. It has many stores. Mr. Hurley was employed as a driver in the Advance store located at 52 North Young Street, Ormond Beach, Florida, during all times pertinent. William G. Nulf was the store manager of the Ormond Beach Store during 2006. The assistant store manager was Jose Rivera. Jim Ashcraft was the "commercial parts pro." All of these men were authorized to supervise Mr. Hurley. On October 30, 2006, Mr. Hurley returned in his assigned vehicle after completing deliveries for the store. Mr. Rivera asked Mr. Hurley about receipts for the parts he had delivered. Mr. Hurley believed the receipts should be accounted for in one way and Mr. Rivera another way. These divergent views resulted in a disagreement that devolved into loud speech. Mr. Rivera told Mr. Hurley to leave the store and go home, but Mr. Hurley refused on the ground that he believed Mr. Rivera was without authority to send him home. During the disagreement Mr. Hurley was on one side of a counter, and Mr. Rivera was on the other side. As the argument progressed, Mr. Rivera stated that Mr. Hurley was a dirty, old, perverted man who should have been discharged a long time ago. Mr. Hurley also made inappropriate comments. Mr. Rivera dared Mr. Hurley to come from behind the counter and fight him. He put his fist in front of Mr. Hurley's face. Ultimately, the "commercial parts pro," Mr. Ashcraft, intervened, and his intervention ended the threat of actual physical violence. Neal Potter, the division manager for Advance having responsibility for the Ormond Beach store, investigated the incident. He used the employee handbook as a guide. The employee handbook of Advance states, "Any threats, incidents of violence, or intimidation of any nature whatsoever (including indirect threats or acts of intimidation) directed against a Team Member or other party by another Team Member will result in immediate termination." Mr. Potter took written statements from the participants and witnesses. He determined that the incident did not rise to the level of workplace violence as described in the handbook. He determined that both parties were at fault, and the incident was no more than a heated argument. Mr. Potter transferred Mr. Rivera to the Daytona Store with an effective date of November 8, 2006, because as a manager Mr. Rivera was held to a higher standard, and he had allowed the incident with Mr. Hurley to get out of control. Mr. Rivera was informed that if any similar issues occurred in the future, he would be terminated. This was memorialized in an Employee Action Report. Mr. Hurley told Mr. Potter that he was very afraid of Mr. Rivera. Subsequent to this incident, Mr. Hurley performed his job satisfactorily and rarely was in the presence of Mr. Rivera, although he did on occasion make deliveries to the Daytona Store where Mr. Rivera was then working. Mr. Hurley did not complain of discrimination as a result of this incident. The Employee Handbook has detailed guidance on how to complain of discrimination or a hostile work environment. Mr. Hurley was familiar with the process. He had complained to Mr. Potter on numerous occasions about a variety of issues, including payroll matters, vacation time, new policies and procedures, and other matters. Mr. Potter regarded him as someone who was quick to complain about almost any matter. Prior to March 4, 2007, Tom Estes was the store manager at the Daytona Store. During his tenure at the Daytona Store, Mr. Rivera was transferred to his store and served as Mr. Estes' assistant. Although Mr. Estes was aware that Mr. Rivera had been transferred from the Ormond Beach store because of an altercation with a fellow employee, he did not know that the employee involved was Mr. Hurley. Mr. Estes had prior experience with Mr. Rivera, thought him to be an excellent employee, and was happy that he had been transferred to his store. On March 4, 2007, Mr. Estes was transferred by Advance and became the manager of the Ormond Beach store. He had required drivers at the Daytona store to maintain delivery logs. He instituted this practice when he took over the Ormond Beach Store. This conformed to company policy. Mr. Hurley did not like this policy. From January 6, 2007, until March 10, 2007, Mr. Hurley's hours generally were Monday and Tuesday from 7:30 a.m. until 5:00-5:30 p.m., and Wednesday from 8:00 a.m. until noon. A short period after becoming manager of the Ormond Beach Store, Mr. Estes determined that more coverage was needed in the late afternoon hours. He made the specific determination that the commercial business required coverage until 6:00 p.m. For the week ending March 31, 2007, he changed Mr. Hurley's hours to Monday and Tuesday from 9:00 a.m. until 6:00 p.m. and Wednesday from 8:00 a.m. until noon. This change was based solely on Mr. Estes' estimate of the business needs of the store. When Mr. Hurley learned of this on March 21, 2007, he displayed anger. He told Mr. Estes that he could not work until 6:00 p.m. because he had to feed his pet birds. On March 26, 2007, the first day he was to work the new schedule, Mr. Hurley was excused from work based on a doctor's note. As events transpired, he never worked the new schedule and, as of the hearing date, he had not returned to work. He did not assert at the time he departed that the proposed change in hours was discriminatory, harassing, or retaliatory. The only person involved in requiring Mr. Hurley to maintain trip logs, and the only person involved in the decision to change Mr. Hurley's hours was Mr. Estes. Mr. Estes was unaware of Mr. Hurley's statement to Mr. Potter. Mr. Estes could not have made changes in Mr. Hurley's work requirements based on retaliation because he was unaware of a complaint.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations dismiss Mr. Hurley's Petition for Relief DONE AND ENTERED this 9th day of September, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 9th day of September, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Glasser, Esquire Glasser and Handel Suite 100, Box N 150 South Palmetto Avenue Daytona Beach, Florida 32114 Steven David Brown, Esquire LeClair Ryan 951 East Byrd Street Richmond, Virginia 23219 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Respondent. The Respondent, Charles Polk, served as the President of Daytona Beach Community College from 1974 to 1990. [Stipulated Fact.] Mr. Polk resigned as President of Daytona Beach Community College in 1990. Mr. Polk's Purchase of Real Estate from Anargyros N. Xepapas. In November, 1985, Mr. Polk and his wife purchased a life estate and one-half interest in a condominium unit from Anargyros N. Xepapas. Mr. Xepapas owned the other one-half interest in the condominium unit. [Stipulated Fact.] The purchase price of the life estate and one-half interest in the condominium unit was $150,000.00. [Stipulated Fact.] The weight of the evidence failed to prove that this price was not the fair market value or that the transaction was not an arms-length transaction. Under the terms of the agreement, Mr. Polk and his wife were required to pay $30,000.00 immediately. They subsequently executed and delivered to Mr. Xepapas a note and mortgage for the remaining $120,000.00. [Stipulated Fact.] Mr. Polk was a mortgagor and Mr. Xepapas was a mortgagee. Under the terms of the agreement, Mr. Polk was required to pay maintenance fees of approximately $5,000.00 per year, taxes, insurance and all other expenses of the unit, which totaled approximately $14,000.00 per year. [Stipulated Fact.] Mr. Xepapas agreed to maintain the payments on the first mortgage. [Stipulated Fact.] Following the closing, Mr. Polk paid Mr. Xepapas an additional $60,000.00 on the mortgage, reducing the principal balance to $60,000.00. [Stipulated Fact.] A warranty deed was provided to Mr. Polk for the purchase of the property. [Stipulated Fact.] Neither the deed nor the mortgage were recorded. [Stipulated Fact.] Mr. Polk and his wife used the condominium as their residence. [Stipulated Fact.] Mr. Xepapas action in selling the condominium to Mr. Polk and his wife was a business transaction. Mr. Xepapas. Mr. Xepapas is an architect and developer who designs, builds, and sells property in the Daytona Beach area. [Stipulated Fact.] At the time Mr. Polk purchased the one-half interest in the condominium unit from Mr. Xepapas, Mr. Xepapas was the owner of the condominium building in which the unit was located. [Stipulated Fact.] In addition to being the owner of the condominium building at issue, Mr. Xepapas was the architect, developer and contractor for the condominium and for other condominium buildings in the areas. Mr. Xepapas was trying to sell the condominium units as part of his business because of cash-flow problems. [Stipulated Fact.] The condominium sales market was "soft" and Mr. Xepapas was trying to eliminate the carrying costs for unsold units. Mr. Xepapas sold a total of four condominium units pursuant to an arrangement similar to the arrangement by which he sold the condominium unit to Mr. Polk. Mr. Xepapas had made offers to sell one-half interests in condominium units to various other persons besides Mr. Polk. [Stipulated Fact.] Mr. Xepapas was a sole proprietor. He entered into his relationship with Mr. Polk in his capacity as a sole proprietor. Mr. Xepapas has known Mr. Polk for ten to fifteen years and considers himself a friend of Mr. Polk. [Stipulated Fact.] Mr. Xepapas' Business with Daytona Beach Community College. In 1987, the Board of Trustees of the Daytona Beach Community College decided to expand the College's educational facilities by obtaining a new center in the Deltona area. [Stipulated Fact.] In September, 1987, the Board of Trustees instructed staff to develop a request for proposal for the design and construction of the facility which would be leased to the College. [Stipulated Fact.] Mr. Polk was involved to some extent in the decision as to whether the new center should be purchased or constructed, and whether it should be acquired through a long-term lease/purchase agreement. In response to the advertisement of the request for proposal in September, 1988, Mr. Xepapas submitted a proposal. [Stipulated Fact.] There were a total of nine persons or businesses that responded to the request for proposal for the Deltona facility. Mr. Polk knew that Mr. Xepapas had picked up a bid proposal package and, therefore, believed that Mr. Xepapas would submit a proposal. Mr. Polk appointed the committee which reviewed the proposals. This committee ultimately narrowed the acceptable proposals to two, including Mr. Xepapas, and directed that those two proposers submit final proposals. In January, 1989, Mr. Xepapas, in his capacity as a sole proprietor, was the successful bidder on the contract; however, there is no evidence to indicate that Mr. Polk abused his position in order to ensure this result. [Stipulated Fact.] Mr. Xepapas and Mr. and Mrs. Polk were co-owners of the condominium prior to and at the time that Mr. Xepapas was awarded the Daytona Beach Community College contract. Ultimately, Mr. Xepapas was not able to fulfill his obligations under the contract with Daytona Beach Community College. Although the evidence failed to prove that Mr. Polk asserted any influence over the decision to award the contract to Mr. Xepapas, Mr. Polk was involved to some small degree in the award of the contract to Mr. Xepapas. The evidence failed to prove that Mr. Polk disclosed his co-ownership of the condominium with Mr. Xepapas to the Board of Trustees of the Daytona Beach Community College, that he refused to participate in any way in the bidding process or that he attempted to take the more drastic step of severing his relationship with Mr. Xepapas while the bidding process was going on. In May, 1989, Mr. and Mrs. Polk ultimately quit claim deeded the property to Mr. Xepapas. The evidence failed to prove why. They, therefore, lost their investment in the property. Mr. Polk also resigned as President of Daytona Beach Community College as a result of the allegations concerning his relationship with Mr. Xepapas.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Charles Polk, violated Section 112.313(7), Florida Statutes, as alleged in Complaint No. 89-80. It is further RECOMMENDED that Mr. Polk be subjected to public censure and reprimand. DONE and ENTERED this 13th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-11. 3 13. 4 14-16. 5 16 and 18. 6 4, 12 and 19-20. 7 Hereby accepted. 8 3, 21, 27-28 and 30. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 13. 3 3, 11 and 14. 4 20. 5 16. 6 4 and 17-18. 7 5 and 8-9. 8 6-7. 9 21. 10 22. 11 24. 12 26 and hereby accepted. See 23, 27 and 30. 13 27 and 30. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 David A. Monaco, Esquire Post Office Box 15200 Daytona Beach, Florida 32015 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue The issue is whether Respondent engaged in a discriminatory housing practice, within the meaning of and in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2005), by requiring Petitioners to submit a second application for the approval of a condominium purchase.
Findings Of Fact It is undisputed that Petitioner, Allan Kangas, has no handicap and is not a disabled person. At the conclusion of Petitioners' case-in-chief, Mr. Kangas testified that he has no handicap. The undersigned, sua sponte, entered an ore tenus order on the record dismissing the case brought by Mr. Kangas. Petitioner, Anna Kangas, is an elderly female and the mother of Mr. Allan Kangas and Mr. Sheldon Kangas, the latter being the representative in this proceeding for the named Petitioners. It is undisputed that Mr. Sheldon Kangas is not handicapped, but that Mrs. Kangas is handicapped, within the meaning of Section 760.22(7), Florida Statutes (2005), because of Alzheimer's disease. Respondent is a condominium association lawfully incorporated as a Florida corporation (Association). Respondent must operate in accordance with the Articles of Incorporation, By-Laws, and Declaration of Condominium (condominium documents). The condominium documents require the Association to approve each purchase of a condominium. On December 8, 2005, Mr. Sheldon Kangas and Mrs. Anna Kangas contracted with Ms. Mary Cox to purchase condominium unit 15, located at 23 Hatchett Creek Road. Ms. Cox is a real estate agent and a co-owner of unit 15. Ms. Cox notified Ms. Pat Williamson, Association Secretary, of the prospective purchase. For the reasons stated herein, Respondent did not discriminate against the prospective purchasers, but approved the purchase of condominium unit 18 in a timely manner after the purchasers changed their purchase contract from unit 15 to unit 18. The prospective purchasers completed an application for approval of the purchase of unit 15 sometime between December 8 and 10, 2005. The Association conducted a meeting to approve the proposed purchase on December 10, 2005. During the meeting on December 10, 2005, the purchasers informed the Association that they wished to purchase unit 18, located at 29 Hatchett Creek Road, rather than unit 15. Unit 18 was owned by Mr. Brian Isaac. Ms. Cox did not object to releasing the purchasers from the contract for the purchase of unit 15. The Association informed the purchasers that a new application for unit 18 would be required. The purchasers completed a new application under protest. At a meeting conducted on January 3, 2006, the Association approved the application for the purchase of unit 18. The purchase of unit 18 closed on January 25, 2006. The purchasers seek reimbursement of living expenses incurred for hotel rooms and meals during the delay caused by the requirement for a second application. The purchasers are not entitled to reimbursement. The purchase of unit 18 was the first time the Association had required a second application. However, it was also the first time a purchaser had changed his or her choice of units after submitting an application. The Association did not discriminate against Mrs. Kangas because of her handicap. The record evidence contains no justifiable issue of law or fact to support the alleged discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of January 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David G. Muller, Esquire Becker & Poliakoff, P.A. 630 South Orange Avenue, Third Floor Sarasota, Florida 34236 Shelden Kangas Allan Kangas 4578 Manor Drive Sarasota, Florida 34233
