Findings Of Fact Petitioners are seeking a permit to cut a channel from a boat basin to the Caloosahatchee River. The basin, which has been constructed, is located approximately forty to sixty feet inland from the Caloosahatchee River. Petitioners are also seeking a permit to operate the proposed basin. The basin would serve as a recreational facility for a trailer park. The proposed basin has dimensions of approximately 140 feet by 148 feet. It is surrounded by a concrete seawall. The basin would provide facilities for approximately 20 boats no larger than twenty-two feet in length. The trailer park is located across the street from the river and basin. The street is approximately 600 feet from the river. Sewage treatment and water treatment plants for the trailer park are located in the corners of the park farthest from the river. The basin is surrounded by vegetation. All water going into the basin would be filtered through grass. The project is located approximately one mile east of the City of Alva, fourteen miles from the City of Tice, and seventeen miles from the City of Ft. Myers. The basin is eight and one-half miles up river from Lee County's pumping stations, which are used to pump water from the river to wells which augment the county's water supply. The Caloosahatchee River was channelized approximately twenty years ago. It no longer follows a natural course. The river is a part of the Cross Florida system connecting with Lake Okeechobee. The proposed boat basin would not enhance the waters of the Caloosahatchee River. The project could reasonably be expected to be a source of water pollution unless rules and regulations, which Petitioners have adopted, are scrupulously followed. These rules and regulations are set out in Figure 3 attached to Petitioner's Exhibit 7. If the rules and regulations are followed, the basin would not be a source of pollutants. There is no evidence in the record to the contrary. If the rules and regulations are not followed then there is a likelihood that the basin will be a source of pollutants, and that the pollutants would be discharged into the Caloosahatchee River. Petitioners do not object to having the proposed rules and regulations made a part and a condition of any permits issued by Respondent.
The Issue Whether or not the applicant has provided reasonable assurances that the proposed project meets the requirements of Chapter 403 F.S. and Chapter 17 for issuance of a dredge and fill permit, and if so, how those assurances may be incorporated into the permit as finally issued. BACKGROUND AND PROCEDURE On May 3, 1989, the applicant, Johnny P. Hires, applied to the Department of Environmental Regulation (DER) for an "after the fact" dredge and fill permit to authorize the existence of a dock and associated structures which had already been constructed on Miller's Creek in Duval County, Florida. On July 28, 1989 DER executed its Notice of Permit Denial for the project. On May 29, 1990, negotiations between Hires and DER resulted in a Notice of Permit Issuance which approved the project subject to a specific condition (Specific Condition No. 7) to which Mr. Hires had already agreed. On June 8, 1990, DER received Gilmour and Gray's petition challenging DER's approval of the permit. On June 13, 1990, the petition was referred to the Division of Administrative Hearings for formal hearing pursuant to Section 120.57(1) F.S. and was assigned DOAH Case No. 90-3690. Prior to formal hearing, DER personnel reassessed the agency position once again with the result that at formal hearing DER asserted that Specific Condition No. 7 of the proposed permit was not stringent enough and sought to present evidence that Specific Condition No. 7 should be modified if the permit is to be issued at all. Neither Petitioners nor Hires objected to this procedure, so the parties' positions at hearing were, by agreement, as follows: Mr. Hires wanted the proposed permit finalized as drafted; the Department wanted the proposed permit issued, with a modified Specific Condition No. 7; and Petitioners wanted the proposed permit denied.
Findings Of Fact Mr. Hires constructed a dock, boathouse, and three catwalks in February or March of 1989, without a permit, within the landward extent of Miller's Creek. The dock is 40 feet by 5 feet with a 24-foot "L" at the waterward end. The catwalks form two boat slips, which are 16 feet by 32 feet and 8 feet by 24 feet. These slips are more or less covered by a roof 32 feet by 24 feet. The boathouse is as yet incomplete. Miller's Creek flows into the St. Johns River near the base of the Hart Bridge in Jacksonville, Florida. This location subjects the project to DER's jurisdiction of Class III (recreational use) waters. It is also near Atlantic and Beach Boulevards. Mr. Hires' property is on the west side of the Creek. At low tide, the creek bottom is exposed, except for a channel which is located near the eastern edge of the creek. The channel is approximately 110 feet from the boat slips. DER's original permit denial stated: Use of the slips by boats would result in continuous bottom scour by prop dredging of the area within the slips and between the slips and the channel. This area is approximately 110 feet in length. Prop dredging creates turbidity and moves bottom material into other areas of the creek which can alter the physical, chemical and biological nature of the water body. The movement of bottom material into the existing channel will cause shoaling within adjacent sections of the creek, altering habitat and affecting flows of water and navigation. Increased turbidity in the water column results in reduced light penetration and photosynthetic oxygen production which together with the resuspension of organic bottom material can increase oxygen demand and release pesticides, heavy metals and hydrogen sulphide into the water column. Therefore the project can be expected to have a long-term detrimental impact on water quality and biological resources of the river. Specific Condition No. 7 of the proposed permit issuance document requires that: At no time shall any motorized vessel utilizing the dock disturb the bottom sediments causing prop dredging or generating turbidity which exceeds the State Water Quality Standard. Mr. Hires has indicated his intent to comply with Specific Condition No. 7 and sincerely believes that he will be able to do so. DER has adopted water quality standards within Ch. 17 F.A.C. These may apply to primary turbidity, that is, turbidity due to actual construction of the project, or secondary turbidity, that is, turbidity resulting from subsequent use of the completed project. Turbidity is the resuspension of bottom material into the water column. Prop dredging from motorboats causes turbidity and changes the bottom contours of a waterway. The amount of turbidity which is generated depends, among other things, upon the kind of sediment which comprises the bottom of a waterway. The bottoms of water bodies in Florida range from fine particles, called mud or silt, to larger particles, known as sand. The creek bottom of Miller's Creek is composed of mud and silt. Because of the lighter weight of mud and silt particles, they are more easily resuspended and stay resuspended longer than the larger, sand particles. The environmental impacts of turbidity depend, among other things, upon pollutants, such as heavy metals, which may become mixed with the natural sediments. Pollutants are more likely to be trapped in fine sediments, such as mud and silt, than they are likely to be trapped in coarser, sandy sediments. Runoff from Beach and Atlantic Boulevards and possible past contamination from a nearby shipyard make sediment contamination in Miller's Creek a distinct possibility. Neither DER nor Mr. Hires has performed a sediment study to determine whether pollutants were present. In approximately May of 1989, a small "access trough" was prop dredged over the 110 foot distance between the channel and Mr. Hires' dock. No permit was issued by DER for this dredging and, if a permit application for such prop dredging were submitted, no permit would be issued. The tidal range of Miller's Creek is approximately 1.5 feet. Thus, at high tide, the water is reasonably expected to be 1.5 feet above the creek bottom that is exposed at low tide. No study of the depth of the water in the access trough was presented to DER, although Mr. Hires estimated its depth at high tide to be 4 feet. Mr. Hires represented, and there is no evidence to refute his statement, that the maximum use of his own boat in this area over the last year preceding formal hearing (September 1989-September 1990) has been twelve times. Despite the credible evidence that the access trough was created by prop dredging, Mr. Hires maintained that it was not possible for his boat, which is equipped with a tunnel hull design, to further dredge the area because he can only operate his boat on idle speed on high tide in this area. Because the props on Mr. Hires' boat are recessed upward from the bottom of the boat, Mr. Hires maintained his boat would not further dredge the access trough or the remainder of Miller's Creek. However, without accurate information as to natural water depth and only vague information as to what might occur if the tide changed while Mr. Hires was out in his boat, what might occur if Mr. Hires used another boat, or what might occur if other types of boats docked at the Hires dock, Mr. Hires' information about his current boat does not constitute a reasonable assurance that no further prop dredging of Miller's Creek will occur. Mr. Tyler submitted that Hires could pole or row his boats from his dock to the channel when there is sufficient water so as to avoid prop dredging. Mr. Hires volunteered to post a bond to ensure that there would be no scouring from his use of motorized boats from his dock to the channel, but there was insufficient expert evidence to establish how high a bond would be reasonable or that DER would regard such bonding as any more substantial assurance than the applicant's policing himself under Specific Condition No. 7 as now drafted. There also was no evidence that bonding has been a successful inhibitor of prop dredging in the past, that any insurer is available to issue such a bond, or that Mr. Hires could post a sufficient cash bond. Upon the expert testimony of Jeremy Tyler and the keen observations of the lay witnesses, it is found that, through natural processes, the access trough may be reasonably expected to, with time, silt in and return to a depth consistent with the existing creek bottom. It is further found that prop dredging may be reasonably expected to cause adverse environmental impacts at this location. Upon Mr. Tyler's expert testimony, it is further found that Hires' dock and the dock's associated structures which have already been installed are not reasonably expected to cause any adverse environmental consequences. Contrary to DER's initial permit denial document, there is no vegetation in the area which might be adversely affected by shade from the dock and associated structures. If the pilings were driven into place at low tide, some temporary turbidity would have been generated by the dock and boathouse construction. However, no evidence of such turbidity can be seen at the present time. The only habitat effects of the constructed items and those planned but not completed would be the loss of the habitat which is displaced by the pilings themselves, an effect which, at this location, is inconsequential. The non-expert testimony of Petitioners with regard to endangered species was without appropriate predicate and is not probative with regard to habitat. No competent evidence was offered by Petitioners to suggest that the dock and associated structures themselves would adversely affect water quality or the public interest test criteria.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department of Environmental Regulation enter a Final Order establishing the Department's proposed permit issuance action as final, provided, however, Specific Condition No. 7 of the draft permit should read: "At no time shall any motorized vessel utilize the dock." DONE and ENTERED this 18th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioners' PFOF: Covered in preliminary material. Accepted. Subordinate. Accepted in part; remainder rejected as mere argument. Respondent Hires' PFOF: Covered in preliminary material. First sentence rejected as not proved. Second sentence accepted in part and rejected in part as set out in the Recommended Order. Third sentence accepted so far as it goes but is rejected as a whole for the reasons set forth in FOF 12. Accepted that the offer was made; rejected that it provides reasonable assurances. Respondent DER's PFOF: 1-11 Accepted as modified to more accurately reflect the record evidence as a whole. Copies furnished to: COPIES FURNISHED: Kay E. Gilmour Lois O. Gray 1347 Morier Street Jacksonville, Florida 32207 Johnny P. Hires 1321 Morier Street Jacksonville, Florida 32207 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Recommendation Based on the foregoing, it is hereby recommended that a final order be entered, granting permit #05-134042-4, with the following amendments: Where the permit reads, "To install an additional 64 boat slips . . .", change to "To install an additional 21 boat slips, for a total of no more than 46 boats . . ." Add to the specific conditions attached to the permit, paragraph 7., to read: "The breakwater to be installed at the entrance of the northern basin will be angled outward along a line that, if extended, would intersect with the southeastern corner of the property on the north shore of the basin." DONE and RECOMMENDED this 10th day of November, 1988, in Tallahassee, Florida. MARY CLARK 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 10th day of November, 1988. COPIES FURNISHED: James H. Walker, Jr. 6175 North Harbor City Blvd. Melbourne, Florida 32940 Harry and Vivian Stahler Donald and Mark Stahler 6190 North U.S. #1 Melbourne, Florida 32940 Vivian Garfein, Esquire Department of Environmental Regulation Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Bldg. Tallahassee, Florida 32399-2400 Dale Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32399-2400
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 Whether Petitioners Kay Rankin and Mike Beard have standing? Whether the project by Mahogany Mill Owners Association, Inc. ("Mahogany Mill"), to remove two existing finger piers and construct three new finger piers and two boat lifts (the "Project") is exempt from the need to obtain an Environmental Resource Permit ("ERP") from the Department of Environmental Protection (the "Department")? Whether the Project qualifies for authorization from the Board of Trustees of the Internal Improvement Fund (the "Board of Trustees") to use sovereign submerged lands?
Findings Of Fact Mahogany Mill Pond and the Channel Located in Pensacola, Florida, Mahogany Mill Pond is connected by a channel (the "Channel") to Chico Bayou. The bayou provides passage to Pensacola Bay and the bay, in turn, is adjacent to the Gulf of Mexico. Prior to the dredging of the Channel in the 1950s to connect the pond and the bayou, the pond was used to store logs as part of a logging operation. After the dredging activity, the storage of logs in the pond ceased. The pond began to serve as a hold for sailboats and over the decades since, the Channel has been used by sailboats and powerboats alike to make their way to the bayou and onward to the bay and the open waters of the Gulf. Currently, Mahogany Mill Pond is "one of the few places left in Pensacola where you can have hurricane hold for deep water sailboats." Hr'g Tr. 231. "Hurricane holds" are safe places to moor a vessel in times of tropical storms and where, in the words of Petitioner Rankin, "you can get your sailboat out of the weather." Id. The petitioners in these four consolidated cases all own deep draft sailboats which they moor in Mahogany Mill Pond. The Channel is bordered to the south by a spit of land that juts into the bayou. The spit is approximately 600 feet long, and its vegetation line (estimated to be the mean high water line by an environmental consulting business) is roughly 60 feet from the Project. The tip of the spit is opposed in the bayou by the Palm Harbor Marina. The marina is a busy one with nearly every one of its slips occupied, as shown by photographic evidence. The marina is about the same distance from the spit as the Project is from the spit. There are shoals in the area and they exist between the spit and the Project. Whether an excursion originates in the pond or the Channel, boaters seeking egress to the bayou, the bay and the Gulf must make their way through the Channel alongside the spit, and around its tip in the vicinity of the marina, an area that includes shoals. Likewise from the bay or bayou, any boat headed for the Channel or the pond must make its way through the narrow area of the marina across from the spit, around the spit, and through the shoals in and near the Channel so as to not run aground. Despite a "quiescent environment with a little bit of intertidal flow" (Hr'g Tr. 149), the Channel requires dredging "probably every 10 years," id., to maintain its navigability. It has been dredged "a couple of times in the . . . 20 years," id., Petitioner Kriegel has lived in the area. The last time the Channel was dredged was six or seven years ago. To the best of Petitioner Rankin's memory, the cost was about $16,000. Dredging costs are borne by the members of the local homeowners association. The Channel's shallowness in some spots is a navigation concern for sailboats and contributes to the Petitioners' assessment of the Channel as "narrow" and "constricted." Despite shallowness and the presence of the shoals, as well as the tight configuration created by the spit, the Project's presence in the Channel does not create a navigation hazard for powerboats that have two engines. This is due to the ability of powerboats to maintain position during a maneuver. As explained by Petitioner Kriegel, "[A]s a result of [having two engines], you can push one side of the boat forward and pull the other side of the boat backwards and pivot the boat without making any headway." Hr'g Tr. 152. A powerboat's ability to maintain position aids maneuverability, particularly in constricted waterways. Sailboats, on the other hand, cannot maintain position while they turn. In order for a sailboat to execute a turn while under sail, it must be moving through the water largely because their keels create lateral resistance. When not under sail, sailboats are typically not able to maintain position while turning because they are usually equipped with only one engine. A structure in a constricted waterway may be an obvious navigational hazard to any boat or it may be a hazard to some boats but not others. More to the point, a structure that extends into a waterway can be a navigational hazard to a sailboat because of the sailboat's inability to maintain position during a turn while at the same time it is not a hazard for a powerboat that enjoys superior maneuverability based on its capability to hold position during a pivot. The Parties Petitioners Kriegel, Baars, Ed and Kay Rankin, and Beard are individual citizens who reside in Escambia County. They all own property in the vicinity of Mahogany Mill Pond, and they all moor their deep draft sailboats in the hurricane hold that is Mahogany Mill Pond. Each has extensive experience navigating the pond, the Channel, Chico Bayou, Pensacola Bay, and the open waters of the Gulf of Mexico. Mahogany Mill is a Florida homeowners association. It has been substituted in this proceeding as a respondent in the place of Mahogany Mill, LLC, the entity on whose behalf the application for the Project was submitted. The Department is the agency of the State of Florida that administers the provisions of section 403.813(1)(b), Florida Statutes (2012),1/ and Florida Administrative Code Rule 62- 346.051(5)(a) (which relates to exemptions from environmental resource permitting in Northwest Florida) and, on behalf of the Board of Trustees of the Internal Improvement Fund, if a project is shown to qualify for an exemption from permitting, to authorize the use of sovereign submerged lands pursuant to Florida Administrative Code Rule 18-21.005(1)(b), including compliance with rule 18-21.004(7)(g). The Application and the Pre-construction Mooring Pilings The Application for the Project was submitted under cover of a letter from Wetland Sciences with a date of October 5, 2012. The letter lists the applicant as "Mahogany Mill LLC, c/o Robert Montgomery." In the body of the letter, it states that the Application was submitted "on behalf of Mr. Robert Montgomery." Mahogany Mill Ex. 1. The October 5, 2012, letter is signed by Jason Taylor. Wetland Sciences employs Mr. Taylor as an environmental specialist. Mr. Taylor holds a four-year degree from the University of West Florida and has been employed by Wetland Sciences since 2004. During that time, he has been engaged in marine permitting and has participated in the permitting of several hundred projects. In conducting the permitting of the Project, Mr. Taylor interacted with both DEP personnel and personnel from the county. In the discussions, Mr. Taylor was careful to address compliance with any regulations related to the Project's water-ward extension. His main concern was with the County Code because it is slightly more stringent than DEP regulations. He informed Mr. Montgomery that a variance from the county might be necessary but that proved not to be the case. "[W]e could actually construct [the Project] . . . as long as it stayed within the same footprint as what was currently there, which extended . . . 24 feet . . . into the water body." Hr'g Tr. 89-90. The "Plan View of Existing Site Conditions" drawn by Mr. Taylor and submitted as an attachment to the Application (see page 2 of 6 attached to Mahogany Mill Ex. 1) shows that at the time of the submission the Project site encompassed two existing mooring piles (the "Preconstruction Mooring Pilings") and two finger piers. The Preconstruction Mooring Pilings served as bow or stern lines for smaller vessels that would dock alongside the two finger piers. The finger piers extended approximately 12 feet offshore. In contrast, the Preconstruction Mooring Pilings were at a point that extended twice as far into the Channel, i.e., 24.0 feet offshore. In Mr. Taylor's opinion, the water-ward extent of the location of the Preconstruction Mooring Pilings justified a 24-foot extension of the Project into the waterway. Some of the exhibits attached to the Application were scaled from an aerial. Others were supported by measurements taken by Mr. Taylor in the field. The location of the Preconstruction Mooring Pilings 24 feet offshore were among the locations supported by field measurements taken by Mr. Taylor at the site of the Project. The Project The Project is shown in the application to consist of two 24-foot by three-foot finger piers (the "Outside Piers") and a third finger pier between the other two (the "Middle Pier"). Like the Outside Piers, the Middle Pier extends 24 feet into the Channel, but it is six feet wide (twice as wide as the Outside Piers). Two uncovered boat lifts, 12 feet wide each, are also part of the Project. The points of the boat lifts that extend the farthest from shore are within the utmost extension of the piers, that is, within 24 feet from the shore (the identical distance from shore as the Preconstruction Mooring Pilings). As described in the application (the "information submitted to the Department"), there is no part of the Project that extends beyond 24 feet from the shore, i.e., where the Preconstruction Mooring Pilings stood at the time of the application's submission. The width of the Project (from the corners of the Outer Piers) alongside the Channel is 36 feet. The distances to an "APPROXIMATE CENTER THREAD OF CHANNEL" (see the estimation in the "Close-Up Plan View of Proposed Activity," page 5 of 6 attached to the Application, DEP Ex. 2) are 20.5 feet from one Outside Pier, 18.1 feet from the Middle Pier, and 16.0 feet from the other Outside Pier. The total area of submerged lands preempted by the Project is 288.0 square feet. At the shore (where there is a seawall), the Project lies within 49.6 linear feet of shoreline owned by the applicant. The Project is on the side of the Channel across from the spit. The Project's side would be starboard of a sailboat returning to the pond from the bayou. It is also the side for a boat headed toward the pond that a vessel would be obligated to keep under boating "rules of the road" to avoid collisions or scrapes with a boat coming from the direction of the pond headed out of the Channel. The Veal Dock Next to the Project is a dock and boat lift owned by James Warren Veal (the "Veal Dock"). Mr. Veal has a 21-foot Cobia powerboat that he keeps on a boat lift supported by the Veal Dock. His boat, equipped with an outboard motor and moored in the boat lift of the Veal Dock, was shown in Mahogany Mill Exhibit 21 "to be sticking out a few inches more," Hr'g Tr. 110, than the stern and engine of Mr. Montgomery's boat while docked at the Project. At the time Mr. Montgomery's boat was photographed to produce Mahogany Mill Exhibit 21, it's stern extended "[r]oughly, ball park, a foot and a half," Hr'g Tr. 109, past the piling. The boat's engine extended another foot and a half toward the center thread of the Channel. When docked at the Veal Dock, Mr. Veal's boat (including the outboard motor off its stern) at its water-ward- most extension is referred to as a "limiting point" (see Hr'g Tr. 191), by the Petitioners. Extending farther out into the Channel than any other structure, boat or engine (including the Project) on the Project's side of the Channel, the limiting point created by a boat in the Veal Dock is what a sailboat swinging around the spit into the Channel must avoid in order to enjoy safe passage in the Channel. The Letter of Exemption and State-owned Submerged Land Authorization The Letter of Exemption locates the Project both by Parcel ID Number, as shown in local government records, and at the street address of 1263 Mahogany Mill in Pensacola, Florida. Its description of the Project is consistent with the description in the Application. See DEP Ex. 1. The Letter of Exemption verifies that the Project is exempt from regulatory review: Based on the information submitted, the Department has determined that the construction of the boatlifts and finger piers, [sic] is exempt, [sic] under paragraph 62-346.0512(5)(a), F.A.C., from the need to obtain a regulatory permit. Therefore, the Department grants an exemption for the proposed activity under paragraph 62- 346.051(5)(a), F.A.C., and Section 403.813(1)(b), F.S. Id. The Department's Letter of Exemption also authorizes the use of state-owned submerged lands for the Project by virtue of the Department's status as staff to the Board of Trustees: The Department has reviewed the activity . . . and has determined that the activity qualifies for a Letter of Consent under rule 18-21.005(1)9(c)2., F.A.C.[,] and section 253.77 of the Florida Statutes to construct and use the activity on the specified sovereign submerged lands, as long as the work performed is located within the boundaries as described herein and is consistent with [certain] terms and conditions . . . . Id., page 2 of 5 (the letter of consent incorporated in the Letter of Exemption). The Letter of Exemption (with the letter of consent incorporated) was issued on October 24, 2012. Statutes and Rules Regulatory Exemption Section 403.813(1) provides, inter alia, that a permit is not required for activities associated with "[t]he installation . . . of private docks, piers and recreational docking facilities . . . [provided they] . . . [s]hall not impede the flow of water or create a navigational hazard." § 403.813(1)(b)3., Fla. Stat. (emphasis added). The statue is implemented by rule 62-346.051. Among the activities listed in the rule that do not require an ERP are "the installation . . . of private docks, piers and recreational docking facilities . . . in accordance with Section 403.813(1)(b), F.S., [and its requirement that they not impede the flow of water or create a navigational hazard]." Fla. Admin. Code R. 62-346.051(5). State-owned Submerged Lands Authorization Section 253.77, Florida Statutes, prohibits a person from the use of sovereign or other lands of the state until the person has the required the form of consent authorizing the proposed use. Rule 18-21.005 implements section 253.77. The form of authorization required for the Project is a "Letter of Consent." See Fla. Admin. Code R. 18-21.005(1)(c)4. In addition, rule 18- 21.004(7) imposes general conditions for authorizations including obtaining the necessary letters of consent. Among the other conditions are that "[s]tructures or activities shall not create a navigational hazard." Fla. Admin. Code R. 18-21.004(7)(g). Good Faith Efforts at Compliance Mr. Montgomery and Mahogany Mill made deliberate and careful effort to comply with the applicable statutes and rules prior to the issuance of the Letter of Exemption. They hired a consulting firm with appropriate expertise in the permitting of docks. Their consultant worked with the county and the Department. Based on the information submitted with the application and the Department's preliminary review, it is no surprise that the Department found the Project qualified for a Letter of Exemption under the statutes and rules that provided an exemption from regulatory review and that authorized the use of state-owned lands. This is especially true given the care taken by Mr. Montgomery and his environmental consultant in seeking the exemption and in light of the Project's extension into the Channel at a point no more than the Preconstruction Mooring Pilings, i.e., 24.0 feet. Installation Without delay, Mr. Montgomery "contracted with a marine contractor to install the improvements [authorized by the Letter of Exemption]." Hr'g Tr. 69. The Project was constructed and its installation was completed in December 2012. Mr. Montgomery and Mahogany Mill heard no objection from any party while the Project was under construction. There were no objections voiced in the month or so afterward. The first objection was made known to Mahogany Mill when Mr. Kriegel visited Mr. Montgomery in mid-February 2013. The Challenges Mr. Kriegel was out of town when the Project was installed. He did not see the Project until mid-to-late February aboard his sailboat when he "had great difficulty in getting [the boat] back in [his] slip [in Mahogany Mill Pond]." Hr'g Tr. 169. Following his experience navigating the Channel in February 2013, Mr. Kriegel met with Mr. Montgomery. From Mr. Kriegel's perspective, the meeting was to no avail. The four petitions challenging the Letter of Exemption and the letter of consent were filed shortly thereafter. The Hearing Mahogany Mill's Prima Facie Case As the applicant for the exemption and the consent to use state-owned submerged lands, Mahogany Mill provided evidence that the Project is not a navigational hazard to powerboats. The evidence included a video of Mr. Montgomery on board a 38-foot powerboat (see Hr'g Tr. 44) smoothly navigating its way from the bayou around the spit, into the Channel and to the Project. The powerboat was piloted by Captain Ben Cranford, who has 12 years of experience navigating vessels through the area, including into Mahogany Mill Pond from the Channel. When asked at hearing about navigating the Channel while being videotaped, Captain Cranford replied, "I'm not having any [difficulty], at all." Hr'g Tr. 46. After the presentation by the Applicant of a prima facie case of compliance and immediately following the supportive case of the Department, Petitioners presented their cases. Petitioners' Cases The evidence presented by Petitioners established that sailboats have far less maneuverability than powerboats as a result of a number of factors. Inability to maintain position during a turn is one of them. Sailboats may be less maneuverable than powerboats because of hull and keel design as well, even when equipped with an outboard motor which typically has a single propeller. Sailboat maneuverability limitations may be exacerbated, moreover, by wind and other conditions, particularly in the summer when the prevailing direction of the winds tend to push off a sailboat. Mr. Kriegel related difficulty the three to four times since the construction of the Project that he has navigated a return to the pond in his sailboat. On those occasions, he brought his boat in under "better than ideal conditions" (Hr'g Tr. 171), due in part to facilitation of the sailboat's turns by a north breeze, the wind that typically prevails in winter time. On one day, he brought the boat in twice on a relatively high tide, another favorable condition. He "had to make two efforts to do it because [he] ran aground . . . the first time. And the second time [he] almost hit the structure." Id. Mr. Baars owns a deep draft sailboat that is "45'3", which includes . . . a Bowsprit." Hr'g Tr. 197. A bowsprit is a spar that extends forward from a vessel's prow to which the stays of the foremast are fastened. As of the date of the hearing, Mr. Baars had not attempted egress or ingress since the Project was installed. But he summed up his worry about the Project when Mr. Kriegel asked him on cross examination whether he thought he could safely navigate around the structure, "I'm concerned, other than trying to test it, I would not know. I mean, as I look down from my dock . . . it doesn't look too good." Hr'g Tr. 213. Like Mr. Kriegel, Mr. Baars has never collided with structures in the Channel but "came very close to the previous structures . . . [and safety] was always a concern when [he] came around the spit." Hr'g Tr. 221. Mr. Baars sailboat has also run aground in the Channel because of prevailing conditions that made maneuvering difficult. In his testimony, Mr. Rankin recollected that when the seawall was installed by a previous owner in 2001, the application showed eight pilings, all of which were "12-foot out." Hr'g Tr. 226. He has "bounced off and shoved off one of those pilings [the Preconstruction Mooring Pilings] before, getting around the corner." Hr'g Tr. 227. Mr. Rankin described his experience in navigating from the bayou through the Channel headed for the pond: . . . I've come in there, around that spit, at low tide, and run aground because the pass is so narrow you have to back up and find it. In the process of finding it, you sometimes have to power over it and that means you back up as far as you can and go full tip wide up to jump it. And in [the] process you're aiming straight for the problems of the piers where they are now. And I'm not saying I can't do it. I'm just saying . . . I'm afraid I'm going to hit it someday. It's that tight. It's that difficult. * * * So all of it [the shallowness, the shoals, the spit, the difficulty in maneuvering sailboats, the structures in the Channel], you've got to be moving. If you get stuck, then you have to cut -- you dredge that area and they dredged it as close to . . . the end of the spit. So it's very, cutting that corner, you're aiming straight at those docks or Mr. Veal's dock. And if I have to be powering over it, by the time I get over the hump, which is the end of the spit, then I have to turn. I can't be turning over the hump. * * * But I have pushed off -- my wife has pushed off one of the pilings. Hr'g Tr. 228-230. Ms. Simpson has navigated the deep draft sailboat owned by Petitioner Beard through the Channel numerous times over the past 20 years. She raced sailboats and participated in regattas so often that she "started racing sailboats in the women's regattas, where [she] captained and helmed [her] own boats." Hr'g Tr. 242. Compared to the three Petitioners who testified and the sailing population in the area, she and Petitioner Beard sail their boats and "come . . . into Mahogany Mill Pond, probably more often than anybody else." Hr'g Tr. 244. Ms. Simpson echoed the concerns of the three Petitioners who testified. She expressed her fears of a collision with the Project in the future based on difficulty in navigating the Channel prior to the Project's installation. Then there were only the two Preconstruction Mooring Pilings present 24 feet from shore as opposed to the Project that is now 24 feet offshore with a width of 36 feet: And like everybody else . . . we use Jim Veal's slip . . . we have to go in almost south of him . . . so you get the boat in. And once we pass the spit, we . . . do a sharp turn and come up . . . if there's any type of weather at all . . . you've got to keep the boat moving . . . there [have] been numerous occasions when the wind was heavy . . . that we will come so close to the pilings out there that I actually was on the bow of the boat pushing it away . . . . * * * . . . if there's a wind blowing . . . you have to be coming so fast to keep it up and then you have to make sure that you can make that run and keep it under control. And like I said, I've pushed off from [the pilings]. Hr'g Tr. 244-6. Mrs. Simpson's concerns were not limited to the Project. Boats with engines attached to their sterns docked at the Project can extend out further than the Project: "[N]ow there's been another . . . 4 feet added on to [the Project] because . . . everybody [who] builds a dock wants a boat bigger than the dock is." Hr'g Tr. 247. The three Petitioners shared the concern about the additional extension into a Channel of boats and engines beyond the 24 feet of the Project's extension. Ms. Simpson reiterated, "If there's any wind at all, [the Project and boats docked at it] are going to cause major problems." Hr'g Tr. 248. As the three Petitioners who testified, Ms. Simpson has never collided in a sailboat with the Preconstruction Mooring Pilings. At the time of hearing, Petitioner Beard had been in the Bahamas with his sailboat since October 2012 and had not returned. Ms. Simpson, therefore, had not yet contended with the Project or any boats docked there in navigating the Channel. Ms. Simpson, however, did observe Mr. Kriegel attempt to navigate his sailboat through the Channel clear of the Project. He ran aground trying to avoid both the spit and the structures. Ms. Simpson detailed potential consequences: . . . [S]ailboats running aground, it's not a good thing . . . you have got your keels and . . . instruments on the bottom close to your rudder . . . you run a sailboat aground, you take the bottom paint off and you hit whatever else is down there . . . then you have to put it in power drive to get it back off . . . you can do quite a bit of damage to a boat when you run it aground, especially a sailboat. Hr'g Tr. 259. Potential Solution Mr. Kriegel referred to a turning basin in the area of the Palm Harbor Marina. The turning basin is where Petitioners headed for the pond in their sailboats commence the swing around the spit taking into consideration the limiting point of the Veal Dock in order to avoid collisions with structures (or docked boats) that extend into the Channel. A potential solution to the difficulties encountered by navigators of sailboats in the Channel is to dredge the turning basin. If the turning basin were wide and deep enough, sailboats would have more opportunity to enter the Channel straight on rather than having to swing around the spit when entering. Some boats headed for the pond are able to make the necessary turn inside the turning basin now. Mike Lunn lives at Mahogany Mill Pond. When he looks out the sliding glass door at his house he has a clear view of the Project and the turning basin. From what he has usually seen, boats "turn around in [the] basin a little bit." Hr'g Tr. 266. He doesn't ever seem them "cut like that," id., in the swing described by Petitioners. Whether he was referring to sailboats or just powerboats is not entirely clear, but he testified with regard to Petitioners and the entry into the Channel they described, "that's what y'all are saying but that's not what I see." Id. In testimony that followed Mr. Lunn's, Mr. Kriegel explained that it is hard to judge when and where to make turns in the basin because of the narrowness of the Channel. There is no doubt, however, that navigation would be improved with dredging of the turning basin to make it deeper and wider even if it did not entirely cure the navigational problems described by all of Petitioners and Ms. Simpson. As Mr. Kriegel offered on cross-examination by Mr. Dunaway: Now, if the turning radius were expanded, if the turning basin were dredged out, if the boats had more room to maneuver, some of [the navigational problems getting to the pond from the bayou] could be improved, yes. Hr'g Tr. 166. Whether dredging the turning basin is an attainable solution was not confirmed. Mr. Kriegel testified, "I'm not sure . . . everybody would like to see it dredged out." Hr'g Tr. 167.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Department of Environmental Protection issue a final order determining that Mahogany Mill Owners Association, Inc.'s Project qualifies for an exemption from the need to obtain an Environmental Resource Permit under section 403.813(1)(b) and qualifies for authorization to use sovereign submerged lands under rule 18-21.005(1)(b). DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 11th day of June, 2013.
Findings Of Fact On August 13, 1984, Dax and Trin filed an application with DER, pursuant to Chapters 253 and 403, Florida Statutes, for a permit and water quality certification to construct a 28-slip docking facility in Canal No. 8 in Mashes Sands, Panacea Shores, Wakulla County, Florida. Dax and Trin's application was complete on September 19, 1984. On December 14, 1984, DER issued its letter of intent to issue the requested permits for a "20-slip docking facility," and requested that Dax and Trin publish notice of the proposed agency action as required by Section 403.815, Florida Statutes. Notice was published December 24, 1984. The notice advised the public of DER's intent to issue the requested permits to "construct a 20-slip dockage facility," and advised substantially affected persons of their right to a Section 120.57, Florida Statutes, hearing on DER's proposed agency action. Petitioner, Jean McMillan, timely filed a petition for formal administrative proceedings. Petitioner is a resident of Wakulla County, Florida, and is the record owner of real property adjacent to that of Dax and Trin and claims a right of access to Canal No. 8. Petitioner has used, and continues to use, the waters of Canal No. 8 and of Ochlockonee Bay for boating, fishing and recreation. The Marina The permit sought by Dax and Trin would allow it to construct a 28-slip docking facility consisting of a 357 foot long by 2 foot wide floating pier parallel to an existing concrete bulkhead on the west side of Canal No. 8, up to fourteen 12 foot by 2 foot wide floating finger piers extending 60 degrees from perpendicular into the canal, and 14 mooring pilings centered between the outer limits of the finger piers. The floating pier and finger piers would be constructed of pressure treated wood resting on styrofoam, and would be secured to pressure treated pilings. No fueling, electrical or water hookups, or other service-type amenities are proposed for this facility. The boats to be docked at the facility would be less than 30 feet in length. The 28 slips proposed by Dax and Trin in this proceeding are part of a larger marina development of at least 48 slips, which Dax and Trin proposes to develop in the canal adjoining a 27-unit condominium development it is presently constructing. Dax and Trin proposes to construct the additional 20 slips, with the same means of construction, immediately adjacent to the proposed 28 slips and parallel to the existing bulkhead, under a claimed exemption for reconstruction and restoration. Additional slips, beyond the first 48, are contemplated by Dax and Trin's development plans. In connection with the 20-slip facility Dax and Trin proposes to provide the following services and amenities: bait and tackle shop, upland fish cleaning stations, public boat fueling facilities, sewage pump-out station, picnic tables, gazebo, snack bar, and restrooms. All services and amenities will be available to the public, including the users of the adjacent 28 slips which are the subject matter of these proceedings. DER's December 14, 1984, Letter of Intent proposed to issue the permit subject to the following conditions: A dockmaster shall: supervise dockage and vessel operations; ensure that all dockage users are familiar with dockage rules, especially those pertaining to vessel discharges; and, be responsible for the clean-up correction of all unauthorized discharges; There shall be no discharges into the canal or bay waters of fish carcasses, food wastes, litter, sewage, fuel, oil, grease, paint or thinner, varnish or other materials other than clean water; Waste containers shall be located along the dockage and emptied regularly to prevent their spill-over; Any fish cleaning stations shall be located on the uplands and all fish carcasses shall be placed in upland containers, and shall not be disposed of in the canal or bay; The dockage user agreement shall contain and stipulate the operational controls. Dax and Trin has agreed to comply with all conditions established by the DER Letter of Intent and at final hearing, agreed to comply with the following additional conditions: OPERATIONAL CONTROLS. The following operations controls shall be implemented immediately after construction of the dockage and shall be applicable to the 28 slip docking facility which is the subject of this permit and the adjoining 20 slip docking facility. Dockmaster. There will be a responsible dockmaster on duty at all reasonable hours who will supervise dockage and vessel operations, ensure that all dock users are familiar with dockage rules and be responsible for proper operation. Fuel Storage and Equipment. The fuel storage area shall be located on the upland site. The fuel tanks shall be provided with automatic cut off valves and each dispenser will be equipped with an automatic knock off valve. In the event a dispenser is knocked off the dock or the fuel line ruptured, the automatic valves will minimize fuel spill. Any time the docks are not attended, the fuel lines will be shut off at the tanks. Fuel Spill. Any time fueling opera- tions are under way they will be continuously attended by docking personnel. This will not be a self-service fueling operation. Fueling procedures include the following: The quantity of fuel desired or required to fill each vessel will be determined prior to fueling. Extreme caution will take place as tanks approach full to prevent overfilling. A nozzle soak up ring will be used with this operation. Any over-fill or slop-out will be wiped up, not washed off. The spill containment and clean-up plan shall be posted at the fuel and supply shed. All fuel spill equipment and material will be located on the dock facilities in the fuel and supply shed for ready access and quick deployment. The spill equipment will include absorbent material that responds to fuel products. All staff shall be trained in the use of the equipment, and shall be instructed to notify any affected agencies (Department of Natural Resources, Marine Patrol, U.S. Coast Guard, Department of Environmental Regulation). Trash Disposal and Removal. Overboard discarding of trash in the dock or canal area shall be prohibited. Trash receptacles will be placed throughout the docking facility and maintained in a clean and sanitary condition. These receptacles will be secured so as to prevent accidental dumping or tipping during inclement weather. Dock personnel will monitor these receptacles so that they do not have the opportunity to become over full. The full or partially full containers will be removed from the docking facility area. This trash will be taken upland and disposed of in an approved manner. Any trash noted on docks will be removed at once. Discharge of Bilge Water. Discharge of bilge water into the dock or canal area shall be prohibited. Waste Holding Tank Storage and Pump Out Procedures. Overboard pumping or dis- charge of waste into the docking or canal area shall be prohibited. A portable sewage pumpout will be installed and utilized. The expense of this service will be covered by regular assessments. The portable sewage pumpout will be made available to the general public. The service will be provided as follows: User will notify dock personnel that pumpout is desired. When dock personnel advise they are ready, the vessel will be moved to the designated area in the service area. The vessel will be adequately secured to the dock in the service area before pumpout will be hooked up. The sealed pumpout equipment will be properly hooked up to the vessel prior to turning on the equipment. This system will empty directly into lift station then to sewer system. This equipment will be attended to at all times to ensure proper operation during pumpout. Once equipment has been removed from the vessel, the vessel will be allowed to continue on. Fish Cleaning. Fish cleaning in the docking area shall be prohibited, and the placement or construction of fish cleaning facilities on the docks shall be prohibited. A designated cleaning area shall be provided upland. This area will provide rinse water that goes directly to the sewer system of the adjoining condominium. A macerator will grind up fish parts so that the system will not be clogged. Larger fish remains will be packaged for removal by sanitation personnel as part of normal trash removal services in connection with the condominium operation upland. Boat Cleaning. Detergent cleaning of boats in the dock or canal area shall be prohibited. Discharges. Discharges of fish carcasses, food wastes, litter, sewage, fuel, oil, grease, paint, thinner, varnish or other materials into the canal or the docking area shall be prohibited. Restroom Facilities. Restroom facilities shall be located upland in an area convenient to the docking facilities. Operation of Boats. Operating boats in a careless, reckless or negligent fashion shall be prohibited. Maintenance and Repair. There will be a requirement that all boats and equipment be kept and maintained in good order. The painting, repair or maintenance of any vessel hull or engine within the docking or canal area shall be prohibited. Boat Size. The restrictions will provide that no slip will be used to store a vessel that, because of its size, would extend or encroach over a storage or stern line established to provide a 27 foot traffic lane that is consistent with the property rights of third parties having an interest in the canal. Liveaboard Vessels. The use of vessels for living quarters, temporarily or otherwise, shall be prohibited. ENFORCEMENT. Restrictions. All boat slips will be subjected to covenants, conditions and restrictions that will be binding upon and run with the property. The restrictions will incorporate all prohibitions and controls set forth in Section I above. Association. The restrictions will require all boat owners to be members of an Association that will be primarily responsible for enforcement of all restrictions. Addi- tionally, any individual owner will have the right to individually enforce restrictions. Fines and Penalties. The restrictions will establish a system of fines and penalties for any violations. Penalties will include the suspension of rights to use the facilities. Assessments. The restrictions will provide for monthly and special assessments against all boat slip owners in order to pay the expenses incurred in connection with the operational controls and provide funding for deferred maintenance, the replacement of equipment used in the operational controls, the repair and maintenance of such controls and dock personnel wages and salaries. Liens. The restrictions will provide for lien rights of the Association to enforce assessments and penalties. Injunctive Relief. The restrictions will provide for the right to seek and obtain injunctive relief to prevent continuing or repeated violations or the failure to abide by penalties imposed, e.g., suspension of rights to use facilities. Responsible Party. The restrictions will provide that the boat slip owner will be responsible, and be subject to fines, penalties and assessments, for the acts of the owner's lessees, guests or invitees who may use the boat slip. Notice. Each purchaser of a boat slip will be provided a copy of the restrictions at or prior to the closing of the sale. Leases. Any lease of a boat slip which is not sold to a condominium owner shall incorporate the restrictions and provide that any violation of any restriction shall constitute a default under the lease by the lessee. Right of First Refusal. The restrictions shall provide that the Applicant, the Association and the remaining boat slip owners will have the right of first refusal in the event an owner of a boat slip desires to sell the boat slip to someone other than the Applicant or another condominium owner. Dax and Trin's plans for the marina complex were still at an evolutionary stage at final hearing. Dax and Trin's owner, Clay Harris, contemplates owning and operating the bait and tackle shop, snack bar and public fueling facilities. He, and Dax and Trin, contemplate selling 47 slips to condominium owners. The remaining slip will be used in conjunction with the fueling operations. If the slips are not sold, they will be leased to the general public. If sold, there are no restrictions on subleasing. The developer reserves the right of first refusal on slips offered for resale, and the right to lease those slips. The marina complex, apart from a desire to sell slips to condominium owners, has none of the characteristics of a private docking facility for residential owners. Instead, it has all the indicia of a public marina, with the attendant traffic such a facility would produce. The Marina Site Canal No. 8 of Panacea Shores (canal) is a man made navigable water body which opens into Ochlockonee Bay, a Class II water body, at a point where shellfish harvesting is prohibited. The canal is a Class III water body. The canal is one of a series of similar residential canals in the area. The east side of the canal is totally developed with single family residences. Dax and Trin and Petitioner plan to develop the west side of the canal. The canal is a dead-end canal. It is approximately 52 feet wide where it opens into Ochlockonee Bay. From the mouth of the canal, it runs in a northerly direction for approximately 240 feet, with widths varying from 65 feet to 80 feet, then north-northeast for approximately 270 feet, with a width of approximately 90 feet, and then an additional 420 feet to the canal's terminus, with widths of 66 feet to 77 feet. The depths of the canal are irregular; a result of imprecise dredging. A substantial portion of the canal bottom has been dredged below -5 feet mean low water, with the deepest portions lying towards the terminus of the canal; the site of the proposed 28 slips. Canal depths vary from areas exposed at mean low water (-0.5 feet NGVD) to depths of -8.1 feet mean low water (-8.6 feet NGVD). The lack of continuity in the canal bottom, especially in light of the fact that depths at the mouth of the canal are less than those at its terminus, combined with the poor flushing rate exhibited by the canal, raise serious questions regarding the propriety of the site for a marina. The hydrographics of the canal, under its present physical configuration, establish the existence of quiescent areas where materials suspended in the water column could settle out and cause or contribute to water quality degradation in the canal. The flushing rate of the canal is poor. The evidence establishes that the rate at which the canal flushes would range from one to two days at its mouth, and up to 30 days at its terminus. Such a slow flushing rate would aggravate the problem of suspended particles settling out onto the canal bottom, and could contribute to a deterioration of dissolved oxygen in the water column. The biological community in the canal is in good health, in a stable equilibrium, and similar to that in the adjacent waters of Ochlockonee Bay. Shrimp, barnacles, and several types of encrusting, filtering organisms as well as sheepshead, killfish, Fundulus, mullet and redfish are found in the canal. In addition, juvenile crustaceans including blue crab are present. Given the hydrographics of the canal, the issue presented is whether reasonable assurances have been given that the short and long term effects of the proposed facility will not impact adversely on water quality or marine resources. Areas of Concern The major areas of concern raised by Petitioner regarding the proposed facility and its operation are dissolved oxygen (DO), bacteriological quality, oils and greases, and heavy metals associated with copper leaching from antifouling paints. Petitioner voices concern with bacteriological quality predicated on evidence that if one boat were to flush its toilet in the facility, a violation of fecal coliform and total coliform standards would result. Petitioner's concern is legally unpersuasive. It is unlawful to discharge wastes into the waters of the state. It is presumed that people will observe and abide by the law. Atlantic Coast Line Railroad Co. v. Mack, 57 So.2d 447 (Fla. 1952). Further, Dax and Trin has agreed that overboard pumping or discharge of waters or bilge waters into the dock or canal area be prohibited. Oils and greases, and heavy metals, in light of the hydrographics of this canal, raise a serious question. The best maintained boats will seep small amounts of oils and greases into the waters. Copper bottom paints, used by virtually all boat owners who permanently moor their boats as opposed to trailering them, will leach minute quantities of copper into the waters over the course of the paint's life expectancy. Twenty-eight boats moored in the canal, much less 48, even assuming their regular usage outside the canal, may be reasonably expected to inject oils and greases, and copper, into the canal's waters which, because of its hydrographics, will not be dissipated. Because of the canal's quiescent nature, operation of the proposed facility will violate state water quality standards for copper. Dissolved oxygen (DO) degradation is an additional concern. Because of the lineal area of the canal occupied by the proposed facility, and because of oils and greases which could be expected to eventually mix with the bottom sediments and scavenge oxygen from the water column, violations of the DO standard can be reasonably expected. DO in the water column of a water body such as the canal comes principally from the atmosphere. Reaeration occurs at the surface of the waters, and is intensified as the air circulates over the waters causing turbulence. The proposed 28-slip facility would preempt about 10 percent of the surface area of the canal. The additional 20 slips proposed would, if all 48 slips were occupied, preempt 30 percent of the canal's surface area. Because the boats and docks will screen off the winds from the surface of the canal, air circulation near the surface will be reduced and reaeration impeded to such an extent that degradation of DO may be reasonably expected. Dax and Trin has failed to affirmatively provide reasonable assurances that the construction and operation of the proposed facility will not violate state water quality standards for DO and copper. Dax and Trin's reasonable assurances assumed a uniform canal depth of -5 feet MLW, which would assure a good flushing rate for the canal. The evidence clearly establishes that a substantial portion of the canal has been dredged well below -5 feet MLW, and that the flushing characteristics of the canal are poor. Dax and Trin's reasonable assurances further relied on two water quality samples which are totally unreliable. The first water quality sample, taken November 1983, lacks reliability since the equipment was not shown to have been calibrated, and temperature and salinity measurements were not reported to correspond to DO readings. The second sample, taken April 12, 1985, lacks reliability because the DO levels reflected are 17 percent higher than the thermodynamic equilibrium value that could be obtained at the reported temperature and salinity levels if there were no BOD in the water. In fact, the same sample reflects a BOD level in the range of violations of DER Class III standards. Petitioner presented competent evidence that, based on the hydrographics of the canal, frequent violations of the state's DO standards could be reasonably expected during the months of May through October. The construction and operation of the proposed facility would contribute to and exacerbate the DO violations. Dax and Trin has presented no evidence with regard to anticipated public benefits of the proposed facility that might tend to offset the expected adverse impacts of the project. The additional areas of concern raised by Petitioner; erosion of the opposite bank of the canal and resultant resuspension of particulate caused by boat operation, navigational problems, and reliability of Dax and Trin to carry out its management plan, are without merit.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' stipulations of fact, the following facts are found: At all times pertinent to the charges herein, respondent Harry J. Williams was acting under his State pilot's license number 0000047. The J. LOUIS, which respondent was piloting at the time of the subject incidents, is a foreign registered vessel required to be piloted by a State licensed pilot. Respondent graduated from the Merchant Marine Academy in 1943, and sailed on U.S. merchant ships continuously until 1962. He became a full-time licensed Tampa Bay pilot in 1962, and has never had disciplinary action taken against his license. Over the past three years, respondent has piloted about 300 ships a year, and about 25 percent of those trips have involved the Port Tampa Canal. The respondent had piloted the vessel J. LOUIS approximately ten to fifteen times prior to the incidents occurring on November 6 and 7, 1985. The J. LOUIS is a Liberian registered vessel which is 669 1/2 feet in length, with a beam of 90 feet. She was built in 1961, is single screw, steam turbine and backs to port. On November 6 and 7, 1985, the J. LOUIS had a forward draft of 33 1/2 feet and an aft draft of 33 feet. On November 6, 1985, at 2050 hours, respondent boarded the J. LOUIS off the sea buoy for the purpose of piloting her to the gypsum dock located on the Port Tampa Canal. It was his intent to arrive at the Port Tampa Canal on the high water slack tide which would have occurred between 12:30 and 12:45 a.m. on November 7, 1985. During the evening and morning hours of November 6 and 7, 1985, there were no adverse weather, wind or visibility conditions. Respondent made arrangements for the harbor tugs YVONNE and PALMETTO to assist him on his journey, and those tugs timely arrived toward the west end of G cut, about 1 1/2 miles from the G cut turn into J cut. The harbor tug PALMETTO is 105 feet in length, has a beam of 26 feet (30 feet with the ship docking tires), a 13 foot draft, and 3,300 horsepower. The dimensions of the harbor tug YVONNE were not described, but it had assisted ships the size of the J. LOUIS on prior occasions. Upon meeting the tugs in G cut, respondent ordered the PALMETTO to make up on the center chock of the stern of the J. LOUIS, and the YVONNE was ordered to make up on the port bow. The turn from G cut to J cut is a ninety degree turn from a westerly heading to a northerly heading. The tugs were directed to assist in making the turn. The YVONNE was ordered to come ahead full speed and get out on a ninety degree angle with the port bow. The PALMETTO was directed to push the starboard stern full ahead on a ninety degree angle. A tug is able to provide the greatest amount of assistance to a vessel when it is on a ninety degree angle with the vessel. The maximum vessel speed for a tug to make up at a ninety degree angle, and thereby provide the maximum amount of assistance, is three to four knots. While attempting to make the turn from G cut to J cut in Tampa Bay, the J. LOUIS ran aground at approximately 2355 hours. While it is impossible to determine the vessel's precise speed near the time of grounding, the average speed of the J. LOUIS from its turn from F cut into G cut until its grounding was somewhere between 8.2 and 12 knots. Respondent believed that he was going very slow, some 2 knots or less, when the bow of the J. LOUIS went aground. He felt that his vessel was sluggish coming to the right and that he was not getting full power from the tug YVONNE, perhaps because of mechanical problems. The captains of the YVONNE and the PALMETTO both felt that the speed of the J. LOUIS reduced their ability to get on a ninety degree angle so as to provide maximum assistance during the turn. The Captain of the PALMETTO estimated the speed of the J. LOUIS to be 6 knots when approaching the turn from G cut to K cut. The chief officer of the J. LOUIS felt that the speed of the J. LOUIS was faster than normal under the circumstances. The YVONNE was able to swing out only to a forty- five degree angle due to the speed of the J. LOUIS. The PALMETTO was able to get to a sixty degree angle. At the time of the grounding, and prior thereto, the engine of the YVONNE was working fine. It was only after the YVONNE attempted to unground the J. LOUIS from some eight or nine different positions over a period of several hours that the YVONNE suffered problems with its reduction gear. The reduction gear alarm on the YVONNE came on about 0210 hours. The evidence supports a finding that the cause of the grounding was the inability of the tugs to provide maximum assistance during the turning maneuver due to the excessive speed of the J. LOUIS. As noted above, tugs are increasingly ineffective as a ship's speed exceeds three knots. The speed of the J. LOUIS prevented the tugs from working on a ninety degree angle, thereby reducing their effectiveness in assisting with the turn. The J. LOUIS remained grounded at the west end of G cut for about two and a half hours. After the YVONNE developed a problem with its reduction gear, she was replaced by the more powerful tug TAMPA, which released the J. LOUIS within ten minutes by pushing on her stem. The J. LOUIS apparently sustained no damage as a result of the grounding. The tug TAMPA was christened in October of 1985. She is a twin diesel, 6000 horsepower tug, with twin propellers and ten rudders. The TAMPA is 100 feet in length, with a beam of 32 or 33 feet, a draft of 13 feet, and is considered the most powerful and maneuverable tug on Tampa Bay. Having been freed from the bottom at the west end of G cut at 0230 on November 7, 1985, the J. LOUIS, the TAMPA and the PALMETTO proceeded onward northerly up K cut toward Port Tampa. Although intending to arrive at the Port during the high water slack tide, the grounding delayed the arrival to about the time of maximum ebb tide. However, the predicted ebb tide of .54 knots was not particularly strong. The entrance to the Port Tampa Canal is 250 feet wide, and requires an almost ninety degree turn from K cut. Respondent directed the PALMETTO to push on the starboard stern and directed the TAMPA to position itself on the starboard bow of the J. LOUIS. However, the Captain of the TAMPA represented that since the TAMPA had flanking rudders, it could do just as well backing as pushing. He therefore suggested that the TAMPA be positioned on the port bow, thereby removing the necessity of shifting to that side once the ship got up to the slip. Respondent accepted that suggestion and the TAMPA was positioned on the port bow of the J. LOUIS at about 60 feet aft of the stem with one line. The line was some 10 inches in circumference and, initially, about 50 feet in length between the vessels. As respondent made the approach to the Port Tampa Canal, the J. LOUIS was travelling between four and six knots, again making it difficult for the assisting tugs to work on ninety degree angles. Perhaps to compensate for the anticipated ebb current, respondent's approach into the Canal was much closer to the north bank and its caissons than the normal approach. The tug TAMPA pushed on the port bow of the J. LOUIS until it became very close, as close as 10 feet, to the outer caisson (referred to locally as the "can opener"). Fearful that the TAMPA could be crushed between the J. LOUIS and that caisson, the Captain of the TAMPA ordered his crew to slack the line so that the TAMPA could slide back. The evidence is unclear as to whether respondent was informed that the TAMPA's line had been slacked, but respondent was informed by the TAMPA's Captain that the TAMPA was getting very close to the north bank and did not have much room. The TAMPA's deckhands slacked out approximately 150 feet of line to enable the TAMPA to clear the outermost caisson. This action positioned the TAMPA close to the midship house of the J. LOUIS. After clearing the caisson, the TAMPA crew began retrieving the line. It was impossible to manually retrieve the ten inch line, so the crew used the bow capstan. This was the first time it had been used and the line was new. About 50 feet of the line was retrieved when the TAMPA received an emergency order from the respondent to start backing full astern. The TAMPA began backing full astern. Although the TAMPA deckhands had taken four turns around the capstan drum and put two figure- eights on the H-bitts up front, the line slipped about four or five feet. The TAMPA had to then slow down while another figure-eight was placed on the bitt. The line then being secured, the TAMPA began backing again, but the J. LOUIS struck the Chevron dock. While the dock sustained substantial damage, the vessel J. LOUIS was not damaged as a result of the collision. There is no doubt that the slack in the line between the tug TAMPA and the J. LOUIS rendered the TAMPA less effective to assist in stopping the bow of the J. LOUIS from swinging starboard to the south. However, the evidence demonstrates that the TAMPA slacked the line in order to avoid hitting the caisson or being squashed between the caisson and the J. LOUIS. While there may have been other options available to the TAMPA, slacking the lines to avoid a collision with the caisson was not inappropriate or unreasonable given the close proximity of the caisson at the time that action was taken. At least five experienced crew members on the TAMPA, the PALMETTO and the J. LOUIS, all of whom had entered the Port Tampa Canal on previous occasions, believed that the J. LOUIS, piloted by the respondent, entered the Canal with more speed and closer to the north than is normal. The Master of the J. LOUIS was satisfied with respondent's piloting.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT respondent, Harry J. Williams, be found guilty of negligently piloting the vessel J. LOUIS on November 6 and 7, 1985, so as to cause it to run aground and to strike the Chevron loading facilities, and that, for such offenses, an administrative fine in the amount of $1,000.00 be imposed. Respectfully submitted and entered this 10th day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 10th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3935 The proposed findings of fact submitted by the petitioner and the respondent have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner 13. Partially rejected as contrary to the evidence. The tugs were unable to carry out respondent's orders due to the speed of the J. LOUIS. 30. Rejected as contrary to the evidence. Circumstances created by the respondent prevented respondent's orders from being carried out. Respondent 13, third sentence. Rejected as contrary to the evidence. 14 - 16. Rejected as contrary to the evidence. Partially rejected as contrary to the evidence. The tug TAMPA obviously encountered problems. Partially rejected. The greater weight of the evidence supports a finding that the initial entrance into the Canal was at a speed greater than normal. 37. Rejected as contrary to the evidence. 40, second sentence. Rejected. See Finding of Fact 15. 53. Accepted as being Coleman's testimony, but opinion rejected as contrary to the greater weight of the evidence. Rejected as contrary to competent, substantial evidence. Rejected; not supported by competent, substantial evidence. 58. Rejected as contrary to competent, substantial evidence. 60. Rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: David C. Banker, Esquire Shackleford, Farrior, Stallings & Evans, P.A. Post Office Box 3324 Tampa, Florida 33601 Nathaniel G. W. Pieper, Esquire Lau, Lane, Pieper & Asti, P.A. Post Office Box 838 Tampa, Florida 33601 Linda Biedermann, Executive Director Board of Pilot Commissioners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue This case concerns the issue of whether the Respondents, B. W. and Mildred Peake, should he granted a permit to construct an addition to an existing dock located on the north shore of Old River in Pensacola, Florida. The Petitioner, Mrs. A. K. Doyle, testified on her own behalf and also called as a witness, Mildred N. Peake, one of the applicants. The Petitioner offered no exhibits into evidence. Mr. B. W. Peake testified on behalf of himself and his wife Mildred N. Peake. The Peakes offered and had admitted into evidence Exhibits 1-7. The Department of Environmental Regulation called as witnesses Mark Snowden and Richard Fancher. The Department offered and had admitted Exhibits 1-6. Subsequent to the final hearing, Counsel for the Petitioner and the two Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact The Respondents, B. W. and Mildred N. Peake, have filed an application for a permit to construct an addition to an existing private pier located on the north shore of Old River, adjacent to Innerarity Point. It will be centered on a lot located at 878 Innerarity Road, Pensacola, Florida. B. W. and Mildred N. Peake are the owners of the property where the existing dock is located. On December 23, 1982, the Department of Environmental Regulation by letter notified the applicants that the Department intended to grant the permit application. The Petitioner, Mrs. A. K. Doyle, filed an objection to the issuance of that permit. Mrs. Doyle's property is adjacent to the eastern boundary of the Peake property. The application, as modified, seeks to extend the existing pier by sixteen (16) feet. The existing pier is five feet wide and approximately 185 feet long. The addition is to be constructed of the same materials used in the existing pier and will rest on treated pine pilings. The purpose of the pier is to allow temporary berthing for two additional sailboats. There will be no fuel pumps or toilets on the pier. The pier will be used for private purposes only and will involve no commercial operation. Upon completion of the addition, the Peake's pier would be approximately 110 feet from the Intercoastal Waterway Channel and will not create a hazard to navigation. The Peakes have obtained approval from the U.S. Army Corps of Engineers to construct the pier extension. They have not obtained consent from the Department of Natural Resources to use the state owned lands beneath the proposed addition. The addition to the pier will total approximately 80 square feet and will require 4 pilings. There is currently an extensive grass bed consisting of Cuban Shoalweed approximately 90 feet from the shoreline. Jetting of pilings for the addition will occur approximately 103 feet from the closest point of this grass bed. The proposed addition will have no significant impact on the existing grass beds. The grassbeds in this area stop growing at the edge of the photic zone or that point at which sunlight can no longer penetrate the water. At this site, this occurs at a depth of 1.5 meters or approximately 4.8 feet. The depth of the water at the site of the proposed addition is from 8 to 10 feet. There are no grasses growing in the immediate area of the project site. The grass beds in the area contain a wide diversity of benthic microinvertebrates. The number of species and density of benthic microinvertebrates were less at the addition site. The proposed addition will not interfere with marine life or destroy marine productivity. The substrate at the immediate project site consists of coarse sand with some fines associated with the sand. During the piling installation, these fines will become suspended in the water, thus creating turbidity. The use of a turbidity screen or control device during construction would limit turbidity to the project site with very temporary, limited violation of water quality. The project will have no deleterious effect on water quality. All boats using the pier will have Coast Guard approved marina heads. These marine heads will not discharge into the waters in the area. Garbage from the boats will be disposed of at the Peake home adjacent to the pier. The pier is presently being used to permanently moor one sailboat.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the applicants, B. W. and Mildred N. Peake, to construct an addition to their existing dock in accordance with the application as modified. The permit should contain all the specific conditions included in the Department's letter of intent dated December 23, 1982. In addition, the necessary approval from the Department of Natural Resources should first be obtained. DONE AND ORDERED this day of April 1984, in Tallahassee, Florida. MARVIN E. CHAVIS 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 27th day of April 1984. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 E. Gary Early, Esquire Division of Administrative Hearings Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ralph A. Peterson, Esquire Post Office Box 12950 Pensacola, Florida 32576 James M. Wilson, Esquire Post Office Drawer 1832 Pensacola, Florida 32598
The Issue The issue to determine in this matter is whether Respondent Department of Environmental Protection (DEP) properly issued its proposed verification of an Environmental Resource Permit (ERP) exemption, dated March 23, 2018, for the installation of nine pilings off of Respondent Larry Lynn’s residential property, in the direction of Petitioner MarineMax, Inc.’s commercial property (MarineMax), pursuant to section 373.406(6), Florida Statutes, commonly known as the “de minimus” exemption.
Findings Of Fact Mr. Lynn has owned the real property located at 111 Placid Drive, Fort Myers, Florida, since 1994. Mr. Lynn’s residential property is a corner lot that fronts a canal on two of the four sides of his property, and also contains his home. MarineMax is a national boat dealer with approximately 65 locations throughout the United States and the British Virgin Islands. MarineMax has approximately 16 locations in Florida. MarineMax, through subsidiary companies, acquired the property at 14030 McGregor Boulevard, Fort Myers, Florida, in December 2014 (MarineMax Property). Prior to MarineMax’s acquisition, this property had been an active marina for more than 30 years. MarineMax continues to operate this property as a marina. The MarineMax Property is a 26-acre contiguous parcel that runs north-south and that is surrounded by canals and a larger waterway that connects to the Gulf of Mexico. The “northern” parcel of the MarineMax Property is surrounded by two canals and the larger waterway that connects to the Gulf of Mexico. The “southern” parcel is a separate peninsula that, while contiguous to the northern parcel, is surrounded by a canal that it shares with the northern parcel, along with another canal that separates it from residential properties. Mr. Lynn’s property is located directly south of the northern parcel of the MarineMax Property, and the canal that runs east-west. As his property is a corner lot, it also fronts an eastern canal that is directly across from the southern parcel of the MarineMax Property. The eastern canal described above also serves as a border between MarineMax and a residential community that includes Mr. Lynn’s residential property. Mr. Lynn has moored a boat to an existing dock on the eastern canal described in paragraphs 5 and 6 for many years. MarineMax holds ERPs for the business it conducts at its MarineMax Property, including the canal between the northern parcel of the MarineMax Property and Mr. Lynn’s property. For example, these ERPs permit: (a) the docking of boats up to 85 feet in length with a 23-foot beam; (b) boat slips up to 70 feet in length; (c) up to 480 boats on the MarineMax Property; and (d) a boatlift and boat storage barn (located on the southern parcel). The MarineMax Property also contains a fueling facility that is available for internal and public use. It is located on the northern parcel of the MarineMax Property, directly across the east-west canal from Mr. Lynn’s property. The prior owner of the marina constructed this fueling facility prior to 2003. Request for Verification of Exemption from an ERP Mr. Lynn testified that after MarineMax took over the property from the prior owner, he noticed larger boats moving through the canal that separates his property from the MarineMax Property. Concerned about the potential impact to his property, including his personal boat, Mr. Lynn contracted with Hickox Brothers Marine, Inc. (Hickox), to erect pilings off of his property in this canal.2/ On March 8, 2018, Hickox, on behalf of Mr. Lynn, submitted electronically a Request for Verification of Exemption from an Environmental Resource Permit to DEP. The “Project Description” stated, “INSTALL NINE 10 INCH DIAMETER PILINGS AS PER ATTACHED DRAWING FOR SAFETY OF HOMEOWNER’S BOAT.” The attached drawing for this project depicted the installation of these nine pilings 16 and 1/2 feet from Mr. Lynn’s seawall, spaced 15 feet apart. On March 23, 2018, DEP approved Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit, stating that the activity, as proposed, was exempt under section 373.406(6) from the need to obtain a regulatory permit under part IV of chapter 373. The Request for Verification of Exemption from an Environmental Resource Permit further stated: This determination is made because the activity, in consideration of its type, size, nature, location, use and operation, is expected to have only minimal or insignificant or cumulative adverse impacts on the water resources. The Request for Verification of Exemption from an Environmental Resource Permit further stated that DEP did not require further authorization under chapter 253, Florida Statutes, to engage in proprietary review of the activity because it was not to take place on sovereign submerged lands. The Request for Verification of Exemption from an Environmental Resource Permit also stated that DEP approved an authorization pursuant to the State Programmatic General Permit V, which precluded the need for Mr. Lynn to seek a separate permit from the U.S. Army Corps of Engineers. Megan Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that DEP’s granting of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit was routine, and that his Request for Verification of Exemption from an Environmental Resource Permit met the statutory criteria. After DEP granted the Request for Verification of Exemption from an Environmental Resource Permit, Hickox, on behalf of Mr. Lynn, installed the nine pilings in the canal at various distances approximately 19 feet from Mr. Lynn’s seawall and in the canal that divides Mr. Lynn’s property from the MarineMax Property (and the fueling facility).3/ MarineMax timely challenged DEP’s Request for Verification of Exemption from an Environmental Resource Permit. Impact on Water Resources MarineMax presented the testimony of Sam Lowrey, its corporate vice president of real estate, who had detailed knowledge of the layout of the MarineMax Property. Mr. Lowrey testified that the canal between the MarineMax Property and Mr. Lynn’s residential property is active with boating activity, noting that MarineMax’s ERP allows up to 480 vessels on-site. With the installation of the pilings, he testified that he was concerned that MarineMax customers “will be uncomfortable navigating their boats through this portion of the canal[,]” which would be detrimental to MarineMax’s business. Mr. Lowery testified that he had no personal knowledge of whether MarineMax has lost any business since the installation of the pilings. MarineMax also presented the testimony of Captain Ralph S. Robinson III, who the undersigned accepted as an expert in marine navigation, without objection.4/ Captain Robinson has been a boat captain, licensed by the U.S. Coast Guard, since 1991. He has extensive experience captaining a variety of vessels throughout the United States and the Bahamas. He is an independent contractor and works for MarineMax and other marine businesses. Captain Robinson is also a retired law enforcement officer. Captain Robinson testified that he was familiar with the waterways surrounding the MarineMax Property, as he has captained boats in those waterways several times a month for the past 15 years. Captain Robinson testified that he has observed a number of boats with varying lengths and beams navigate these waterways, and particularly, the canal between the MarineMax Property and Mr. Lynn’s property. Captain Robinson estimated that the beam of these boats range from eight to 22 feet. He also testified that the most common boats have a beam between eight and 10 feet. Captain Robinson’s first experience with the pilings in the canal occurred in April 2018, when he was captaining a 42- foot boat through the canal. He testified that an 85-foot boat was fueling on the fuel dock, and when he cleared the fueling boat and pilings, he had approximately one and a half feet on each side of his boat. He testified that “[i]t was very concerning.” Captain Robinson testified that since this experience in April 2018, he calls ahead to MarineMax to determine the number and size of boats in the portion of this canal that contains the pilings. On behalf of MarineMax, in December 2018, Captain Robinson directed the recording of himself captaining a 59-foot Sea Ray boat with an approximately 15- to 16-foot beam through the canal separating the MarineMax Property and Mr. Lynn’s residential property, with another boat of the same size parked at MarineMax’s fueling dock.5/ Captain Robinson testified that these two boats were typical of the boats that he would operate at the MarineMax Property and surrounding waterway. The video demonstration, and Captain Robinson’s commentary, showed that when he passed through the canal between the fuel dock (with the boat docked) and Mr. Lynn’s residential property (with the pilings), there was approximately four to five feet on either side of his boat. Captain Robinson stated: This is not an ideal situation for a boat operator. Yes, it can be done. Should it be done? Um, I wasn’t happy or comfortable in this depiction. Captain Robinson testified that his “personal comfort zone” of distance between a boat he captains and obstacles in the water is five or six feet. Ultimately, Captain Robinson testified that he believed the pilings in the canal between the MarineMax Property and Mr. Lynn’s property were a “navigational hazard.” Specifically, Captain Robinson stated: Q: In your expert opinion, has Mr. Lynn’s pilings had more than a minimal, or insignificant impact on navigation in the canal, in which they are placed? A: I believe they’re a navigational hazard. The impact, to me personally, and I’m sure there’s other yacht captains that move their boat through there, or a yacht owner, not a licensed captain, um, that has to take a different approach in their operation and diligence, um, taking due care that they can safely go through. It’s been an impact. Q: Is a navigational hazard a higher standard for you as a boat captain, being more than minimal or insignificant? A: Yes. A navigational hazard is, in my opinion, something that its position could be a low bridge or something hanging off a bridge, a bridge being painted, it could be a marker, it could be a sandbar, anything that is going to cause harm to a boat by its position of normal operation that would cause injury to your boat, or harm an occupant or driver of that boat. Ms. Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that after MarineMax filed the instant Petition, she and another DEP employee visited Mr. Lynn’s residential property. Although not qualified as an expert in marine navigation, Ms. Mills testified that, even after observing the placement of the pilings and the boating activity the day she visited, the pilings qualified for an exemption from the ERP.6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that DEP enter a final order dismissing MarineMax’s challenge to the determination that Mr. Lynn’s pilings qualify for an exemption from an environmental resources permit pursuant to its March 23, 2018, approval of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resources Permit. DONE AND ENTERED this 28th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 28th day of March, 2019.
The Issue Whether respondent discriminated against petitioner on account of his race in terminating his employment as a glass bottom boat captain at Silver Springs? Whether Emma Hawkins should be allowed to intervene? If so, whether respondent discriminated against intervenor on account of her race in failing to promote and ultimately in discharging her?
Findings Of Fact On January 1, 1989, FLAC acquired Silver Springs and Wild Waters, an adjacent tourist attraction dating to 1977 or 1978. In or near Ocala, Florida, both properties had belonged to Florida Leisure Acquisitions, Inc., who had acquired them from American Broadcasting Company some five years earlier, in a "leveraged buyout." FLAC also acquired Weeki Wachee in 1989. T.449. Thomas Cavanaugh, who started as a vice-president and general manager in 1973, survived both changes in ownership, and had effective control over a unified personnel system until his departure in 1990. As late as 1973, everybody who worked at Silver Springs as a glass bottom boat captain was black. When FLAC acquired Silver Springs, five of twelve glass bottom boat captains were black. At the time of petitioner's discharge on June 21, 1989, seven of the boat captains were black. The number had fallen to three by November of 1990. Hiring Patterns Most of the jobs at Silver Springs require little or no skill, and this has been true at all pertinent times. Boat captains needed only to be able to deliver a spiel or learn a script and handle a boat. Maintenance and food service positions were predominantly unskilled. In all these areas, there were also some positions for managers or supervisors. Between December 7, 1987, and May 6, 1991, inclusive, respondent or its predecessor hired 104 boat captains or guides, and offered jobs as boat captains or guides to 20 others who did not accept. None of those who refused offers and only one who accepted was black. Nine of 520 persons who applied for these positions during this time period were black. In late 1989 and early 1990, blacks applying for other positions at Silver Springs comprised a significantly higher proportion of the applicants for these other positions. In the early part of 1990, blacks accounted for 6.95 percent of applicants for all jobs at Silver Springs, up from the latter part of the year before. Treating the population between 15 and 64 as a proxy for the civilian labor force, the civilian labor force in the area was, according to 1980 census data, 14.7 percent black, a percentage that had fallen by 1990 to 12.7 percent. Blacks comprised 11.1 percent of the Marion County population 15 and older in 1990, and 16.8 percent of those who found work through the Florida State Employment Service in the period from July of 1990 through June of 1991. A labor economist called by petitioner testified that the discrepancy between the percentage of blacks in the flow of applicants for work as boat captains or guides and the percentage of blacks in the work force in Marion County permitted an inference "that there is . . . probably some barrier to entry for individuals to apply," Fresen Deposition, p. 21, for those positions. The same witness was also willing to speculate, id. at 54, that the discrepancy between the percentage of blacks in the flow of applicants for boat captain or guide positions and the percentage of blacks in the flow of applicants for other positions at Silver Springs "may be . . . [attributable to t]he channelling of applicants for navigational positions into other positions." Id. at 55. Respondent attributed the conceded decline in black applicants for work at Silver Springs to better opportunities increasingly available elsewhere in Marion County, including positions at a Martin-Marietta plant with 1800 employees, at Certified Grocers with 800 employees, at Energy One and at Federal Motors, each with 1100 employees in the community, and at a K-Mart Distribution Center with two or three hundred employees. T.440-1. Glass Bottom Boats For several years, perhaps since 1957, U.S. Coast Guard regulations have required that passengers on glass bottom boats at Silver Springs be told about life jackets on board, and boat captains have been responsible for doing this, before setting out. Otherwise, until a few years ago, each glass bottom boat captain had broad discretion about what he did or did not say to passengers on board. On July 1, 1957, when petitioner David Faison, who is black, began work for one of respondent's predecessors in interest as a glass bottom boat captain (or driver), each captain was required to compose a talk to deliver to glass bottom boat passengers. As a new recruit, Mr. Faison read the book "Eternal Springs" and rode with other captains, before leading his own boat tours, pointing out flora and fauna and sharing information about the springs. An Easter Outing Jim Schorr, then FLAC's new chief executive officer, took his family for their first ride on a glass bottom boat at Silver Springs on Easter Day 1989. They "went down on the glass bottom boat dock, and they took the first boat that was available and that happened to be Riley Williams' boat." T.526. Afterwards Thomas Cavanaugh summoned Riley Williams, a black boat captain with more than 30 years' experience, and Michael Jacobs, respondent's director of operations, to his office. "Riley, what happened? What happened with your trip, Riley?" he asked. "We just talked to Jim Schorr. He said it was a terrible trip." T.526. Surprised and visibly shaken, Mr. Williams reported that "Mr. Schorr even told me my trip was good," (T.527) but allowed that he had been nervous. Mr. Cavanaugh told him to take the afternoon off and said, "Riley, we're going to go ahead - we're going to help all the drivers. We're going to hire a drama coach, and it will help everybody out." Id. Standardization David London, the new drama coach, prepared the first version of a script the boat captains were asked to commit to memory, or at least to follow closely as a guide when giving tours. As requested, petitioner, along with other boat captains, made suggestions for improving the script. T.251, 521. At a meeting on or after May 2, 1989, a revised script was distributed to assembled boat captains, and Mr. Schorr announced "that he wanted them to learn the script, and if they chose not to learn the script, that they could find work elsewhere." T.484. No deadline was given. T.44, 429. Whether petitioner Faison was in attendance is unclear. T.294. Riley Williams now works on the grounds at Silver Springs, landscaping and gardening. His pay is no less than if he had remained a boat captain. He asked for a transfer because he felt he "really wasn't coming up to par of what they wanted . . . [from boat captains] and the time was closing in " T. 581. Dockmaster A black man, Willie Barr began as a glass bottom boat captain at Silver Springs in 1974. Except for a hiatus that began in 1980 and ended in 1981, he continued in respondent's employ (or that of a predecessor in interest) until November 18, 1989, when he retired as dockmaster, a salaried position he first assumed in 1982. As dockmaster, Mr. Barr reported directly to Mike Jacobs, the white man who worked as respondent's director of operations. Mr. Barr had overall responsibility for both jungle cruise and glass bottom boats; and particular responsibility for scheduling glass bottom boat captains' work and for maintenance of the glass bottom boats. A separate maintenance department actually did the work. He also piloted, loaded, unloaded and tied up glass bottom boats. Mr. Barr retired at age 52 at least partly because of high blood pressure, a malady of which both he and Mr. Jacobs had become aware in early 1989. T.299, 481. During the months before he stepped down, Mr. Barr came to Mr. Jacobs on several occasions, and told him "about the stress he was under at the boat dock, the problems he was having with the drivers, a new company taking over and all the changes that were taking place." T.481. In May of 1989, Mr. Jacobs asked Mr. Utz, a decorated Navy veteran who had worked at Silver Springs longer than Mr. Barr, "to give Willie a hand." T.371, 481-2. At the time of this request, Mr. Utz, who is white, was "at the jungle cruise most of the time running the jungle cruise operation," (T.298) as lead or "manager of the jungle cruise." T.368. Mr. Barr viewed Mr. Utz, before May of 1989, as his assistant, as did every glass bottom boat captain who testified on this point. But management witnesses insisted that Mr. Utz's position "at the jungle cruise" was equal in rank to that of glass bottom boat dockmaster, the position Mr. Barr held. T.472. Although Mr. Utz worked for an hourly wage before (and, initially, after) the change in May of 1989, Mr. Utz's remuneration exceeded Mr. Barr's salary significantly. In addition to supervising jungle cruises, Mr. Utz trained boat captain recruits. Respondent gave Mr. Utz no pay raise in May of 1989, when his broader responsibilities seemed to most to entail greater authority. The company's chief executive officer acknowledged that a change in the pecking order occurred. T.455. Mr. Barr began reporting to Mr. Utz in May of 1989. T.275. On May 7, 1989, Mike Sentman took over as lead for jungle cruise operations. Response to Petitioner's First Set of Interrogatories, No. 16. Glass bottom boat drivers considered Mr. Barr their supervisor before, but not after, the time Mr. Utz undertook his new role in glass bottom boat operations. T.42, 53- 4, 57. Ultimately Mr. Utz assumed a new title, supervisor of boat operations (T.295, 372), and filled a newly created position, which respondent never advertised, even to other employees. He continued to train all new boat captains before they took a test the U.S. Coast Guard required, drawing on his long experience with boat handling. Only in January of 1990, after Mr. Barr had retired, however, did Mr. Utz acquire his present title and become a salaried employee. T.372. We Are Not "Edutained" On Tuesday, June 20, 1989, the day David Faison returned from a two- week vacation, David London rode on his boat and listened to what petitioner said to the tourists. Unfavorably impressed, he told Donald Utz afterwards, "Wow, that was terrible. That was the wors[t] yet." T.378. That afternoon Donald Utz and Michael Jacobs sent Robert Sinkler, Jr., at the time employed in respondent's "Edutainment" program, on a boat ride with petitioner, with instructions to videotape petitioner's performance. Virtually without interruption, petitioner (who mistook Mr. Sinkler for a tourist) was videotaped for the duration of the trip. Received in evidence as Respondent's Exhibit No. 1, the videotape records petitioner's remarks, delivered in a sometimes unintelligible singsong. They bear scant resemblance to the prescribed script, and include no reference to life jackets. On other occasions, however, petitioner did advise passengers of the life preservers on board. T. 278. David Faison was asked the next day to join Messrs. Jacobs and Utz, in viewing at least a portion of the videotape. In the discussion that followed, petitioner, who was said to be good-natured ordinarily, expressed resentment at having to use the script, which Mr. Jacobs took as a refusal to do so. Petitioner is "a person that would tell you what he thought." T.451. He terminated petitioner's employment on the spot, although Mr. Faison was generally seen by his superiors in the organization as not the type of person to be insubordinate. T.450-451. The day Mr. Faison was discharged Willie Barr, the dockmaster, asked to see the videotape, after he learned from other boat captains that petitioner had been sent home. Mr. Barr watched part of it in the company of Don Utz, who told Mr. Barr that petitioner had been discharged for failure to use the assigned script. T.295. Mr. Utz "didn't really indicate that" (T.295) respondent had refused to use the script. Before petitioner's discharge, Mr. Utz had told Virginia Phillips that he did not know how the black boat captains were going to do because they were difficult to understand. T.51. He also told her he did not want her going to "that area of the city," (T.47) which she took to mean the black residential area. She had recently travelled there when she drove a black boat captain, Alphonso Sears, home. Insubordination was (and remains) a recognized ground for dismissal. T.293, 303. But a white glass bottom boat captain was not dismissed despite refusing to be "cross-trained" as a boat captain for two of the three other rides offered by FLAC, even though he had originally been told that "cross training" for all three was mandatory. T.108. The white employee did train as a boat captain for one of the three other rides. He was told, three weeks before the hearing, that training for the other two was not required. T.109. Another boat driver, Virginia Ferguson, testified that she "was told recently all boat drivers needed to be cross-trained" (T.175) to act as guides on all four rides. T. 176. A second white boat driver also refused cross- training with impunity. T.420. But nobody else was shown to have insisted on giving the glass bottom boat tour his own way, without using the prescribed script. Respondent's newly installed chief executive officer had personally decided and publicly announced that all glass bottom drivers were to use the script. Recruitment Efforts Four times petitioner tried unsuccessfully to get in to see Mr. Cavanaugh in an effort to regain the job he had held for more than three decades. At hearing, Mr. Cavanaugh characterized his failure to talk to petitioner about his discharge as an "error" (T.452) that he attributed to the emotional drain of having himself to terminate the employment of so many people he had worked with for a long time. David Faison was one of approximately twenty employees FLAC discharged in 1989, most of whom were managers. "The new management was making a sweep." T.449. Like his brother David, Roosevelt Faison has worked as a boat captain at Silver Springs for many years. He began on May 4, 1956, and worked full-time until 1989, when he chose to cut back to two days a week. An average or above average employee (T.276), his evaluations have been consistently "good" or "excellent." In May of 1989, he told Anne Dansby, a white woman who worked for respondent that "the few blacks . . . [still employed] felt like they w[ere] not really wanted in the park." T.125. She apparently relayed the substance of this conversation to Tom Cavanaugh, who later brought up the subject with Mr. Roosevelt Faison, agreeing that the number of black employees had dropped. Mr. Cavanaugh told Mr. Roosevelt Faison that he "was dead on the money, but it wasn't done intentionally." T.126.36. On the third or fourth day after his arrival at Silver Springs, Thomas Cavanaugh ordered an end to racially segregated bathrooms at Silver Springs. He personally included a sledge hammer in an attack on a urinal reserved, until its destruction, for the use of black men. Within months of his arrival, he "retired" the white supervisor of glass bottom boats and replaced him with a long-time black employee. He sought to recruit black employees through the school system and enlisting the assistance of black community leaders. These efforts antedated his discussion of the situation with Roosevelt Faison, and intensified after their discussion. Lay-Off On a Monday in July of 1989, when Mr. Roosevelt Faison reported to work, he found a note with his paycheck, which said, "Roosevelt, you are off until notified to come back to work." T.127. When he spoke to Ms. Dansby about the note, she called Mike Jacobs, but he was reportedly too busy to talk to Mr. Roosevelt. Ms. Dansby then called Mr. Utz, who did speak to Mr. Roosevelt Faison, first telling him, "It's just slow business, and we're just cutting back," (T.129) then referring him to Willie Barr, who was not at work that day. The next day, when Roosevelt Faison spoke to Mr. Barr by telephone, Mr. Barr rescinded the lay-off. Although he had not recommended the lay-off, (T.277) Mr. Barr had written the note to Mr. Faison ("on Roosevelt's time card" T.305) at Mr. Utz's behest. T.307. Mr. Roosevelt Faison did not work that week, but he was paid for a half day (presumably because he had come in Monday.) He resumed working his wonted Mondays and Tuesdays the following week. McCants Charlie McCants, who is black, went to work for respondent or a predecessor in interest in 1959 in the deer park, feeding and otherwise taking care of the animals there. He also mended fences and did other maintenance, until his transfer in 1985 to the wildlife section of the attraction. There he did much the same thing, although for different animals, among them giraffes, to whom he had to give shots. He was paid the same thing in the wildlife section as he was making in the deer park before the transfer, although he never supervised anybody in the wildlife section, as he once did for a while in the deer park, without actually holding a supervisor's position. He and Bill White, who is white, were relocated at the same time. Management felt they had both become too often hard to find in the deer park. Emma Hawkins Emma Hawkins began work at Silver Springs in the food and beverage department in May of 1974. In September of 1976, she resigned to go to junior college, but she returned to her job in November of 1977, and was promoted the following month to lead. She was promoted a second time -- to unit coordinator -- in March of 1979, and a third time -- to supervisor -- in August of the same year. She viewed her transfer in February of 1990 to the food and beverage department at Wild Waters as a fourth promotion. T.185, 198. She did not, however, receive every promotion for which she applied. She was passed over in favor of another black person for a job "managing the warehouse," (T.188, 489) and lost out, again to another black applicant, when she applied for an administrative position in the front office. T.188, 489. In January of 1989, she received the last in a series of merit pay raises. More than once, she applied unsuccessfully to become assistant manager of the food and beverage department. The last time she applied to be assistant manager of the food and beverage was the spring of 1989. T.188. The position remained open until Shari Wynkoop, a white woman who had not previously worked at Silver Springs, began as assistant manager of the food and beverage department on June 28, 1990. T.479. At the time of her transfer to Wild Waters, Ms. Hawkins had charge of a restaurant at Silver Springs, The Outback, where she supervised some 20 employees, more in the summertime. T.299-301. At Wild Waters, she had responsibility for five food facilities and up to 50 employees. Id. She had "charge of hiring, firing, inventory purchasing, schedules, supervising, cooking, [and] cash control." T.186. At least after the transfer, many of the assistant manager's duties devolved on Ms. Hawkins, until Ms. Wynkoop took over. A few months before the transfer, Robert Santillana, the food and beverage director, had given Ms. Hawkins a written reprimand because Tina Balboni, whom she supervised, had been permitted to work with "NO HAT, SCARF OR NAME TAG." Petitioner's Exhibit No. 8. On a "CAST MEMBER COUNSELING FORM," Mr. Santillana warned that another such dereliction would result in further counseling. Id. Money Bags The Wild Waters operations manager's morning routine included a trip from Silver Springs to Wild Waters with locked bags full of cash for the various Wild Waters cash registers. He put the money bags needed for the operations Ms. Hawkins supervised in a milk crate in his office. She usually took the crate herself from there to her office in the back of the Surf's Up restaurant, before distributing the money to cashiers. Ms. Hawkins had a door lock installed -- there was none when she started at Wild Waters -- but she did not always lock her office door. An electronic timing device for one of the water slides at Wild Waters was located in her office, and the operations manager needed access to reset the timer. She spent a certain amount of time out of her office but in close proximity. Ms. Hawkins was told on her return (after two days off) to work on or about August 10, 1990, that $98.16 had not been accounted for on or about the evening of August 8, 1990, and that a cashier had quit the day after the loss was discovered. She relayed this information to Mr. Santillana, who did not seem particularly concerned at the time. But Mr. Santillana gave her a written reprimand when, sometime within a few days of August 8, 1990, approximately $400 was taken from an unlocked money bag a cashier left in her unlocked office, in violation of prescribed procedure and apparently without Ms. Hawkins' knowledge. This loss occurred on a Friday. Mr. Santillana, who did not learn of it until the following Monday, was angry that Ms. Hawkins had not succeeded in reaching him over the weekend. She had standing instructions to report major losses to him as soon as possible. On August 16, 1990, he and Ms. Wynkoop went to Ms. Hawkins' office and found it unlocked. Nobody was in the office, but a milk crate full of money bags was in plain sight. He went straight to the front of the restaurant and asked Ms. Hawkins to come to his office the following day. Later he wrote a memorandum, memorializing his findings on August 16, 1990, recounting the loss a week or so before of $98.16, and terminating her employment. August 16, 1990, was the last day Ms. Hawkins' worked for respondent. Ms. Hawkins was not the first to lose a job with respondent for (apparent) failure to abide by prescribed cash handling procedures. On occasion employees were discharged for a single (apparent) breach of such procedures. Ms. Hawkins (who had not yet clocked in when Mr. Santillana accosted her on the morning of August 16, 1990) noticed that a trusted employee had a good view of her office door, but did not bother to check whether it was locked, before going to help elsewhere in the facility, where she was needed.
Recommendation It is, accordingly, RECOMMENDED: That FCHR enter a final order denying the petition for relief. That FCHR enter a final order denying the petition to intervene. DONE and ENTERED this 30th day of November, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1-10, 15, 16, 17, 18, 21, 24, 25, 32, the first two sentences of No. 33, Nos. 34, 35, 57, 58, 63, 64, 65, 69- 74, 77-82, 84, 86, 87, 90-93, 95, 98, 99, 100, 105-112, 115, 116, 117, 120-124, 127, 129, 130, 131, 132, 134, 138 and 139 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 11, the CEO was Jim Schorr. Petitioner's proposed findings of fact Nos. 12, 13, 14, 20, 22, 26, 28-31, 59-62, 66, 67, 68, 76, 83, 85, 88, 89, 94, 102, 103, 104, 118, 119, 126, 128, 135, 136, 140, 143 and 144 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 19, the weight of the evidence established that petitioner did not give the warning on June 20, 1989. With respect to petitioner's proposed findings of fact Nos. 23, 36, 37, 96, 97, 101, 125 and 142, the witnesses testified as reported. Petitioner's proposed findings of fact No. 27, the last sentence, of No. 33, Nos. 75, 113 and 141 have been rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed findings of fact Nos. 36-56, the case has been decided on the assumption, pro hac vice, that race discrimination did take place at some point. With respect to petitioner's proposed finding of fact No. 114, the transfer occurred in February. With respect to petitioner's proposed finding of fact No. 137, she had not been performing as assistant manager for ten years. Respondent's proposed findings of fact Nos. 1 through 5 pertain to the procedural posture of the case, apart from evidence adduced at final hearing. Respondent's proposed findings of fact Nos. 6-8, 12-15, 17-20, the first sentence of No. 21, Nos. 25, 27, 28, 31-34, 36, 37, 39-47, 49-56, 60, 61, 62, 64, 67, 69-75 and 76 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 9, 10 and 11, it is not clear whether Faison was present and heard Mr. Schorr's remarks, or that he was ever told of any deadline. With respect to respondent's proposed finding of fact No. 16, it is not clear whether FLAC intended not to hide the fact that one of its employees was videotaping petitioner. With respect to the last sentence of paragraph No. 21 and Nos. 22, 23 and 24, petitioner was fired for perceived refusal to use the script, whether or not he had time enough to learn it. Respondent's proposed findings of fact Nos. 26, 29, 30, 35, 38, 48, 58, 63, 77, 78 and 79 pertain to subordinate matters. Respondent's proposed finding of fact No. 57 is interally inconsistent. With respect to respondent's proposed finding of fact No. 59, it is unnecessary to decide this question in order to decide the case. With respect to respondent's proposed finding of fact No. 65, the position was filled on June 28, 1990. With respect to respondent's proposed finding of fact No. 66, see paragraphs 46-51 the findings of fact. With respect to respondent's proposed finding of fact No. 67, the evidence was in equipoise on the question of where Ms. Hawkins was when the loss was discovered. COPIES FURNISHED: Mary C. O'Rourke P. Kent Spriggs Spriggs and Johnson West College Avenue Tallahassee, FL 32301 Loren E. Levy Bruce Kaster Cove, Green and Kaster P.O. Box 2720 Ocala, FL 32678 Margaret Jones, Clerk Commission on Human Relations John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Lewis E. Shelley 117 S. Gadsden Street Tallahassee, Florida 32302
