The Issue Whether STOP and the County have standing to challenge the issuance of the Modification? Whether the Department should issue the Modification as authorized in Permit No. BO-612 M1?
Findings Of Fact The Sand Mound The Sand Mound is located entirely on the property of the Applicants in the City of Fort Lauderdale on the southern portion of the city's beach. Oval shaped, it is approximately 176 feet long in a north-south direction parallel to the shore (shore-parallel direction) and 140 feet wide in an east-west direction perpendicular to the shore (shore-normal direction). The Sand Mound's peak at 13 feet NAVD rises between five-to-six feet above the surface of the beach. Gradually sloped, it supports approximately 12,000 square feet of mixed vegetation of varying density. The Sand Mound is an oddity. The width of the beach on the property of The Mayan Beach Club seaward (to the east) of the Sand Mound is approximately 300 feet. The width of the beach lying upland of the Sand Mound (to the west and landward) is approximately 400 feet, a distance of a third or so greater than the beach seaward of the Sand Mound. Unlike a dune, therefore, the Sand Mound lies seaward of an extensive expanse of upland beach. There are no dunes, moreover, in the immediate vicinity of the Sand Mound. The closest dune is several hundred feet to the south. North of the Sand Mound, the closest dune is approximately 800 feet away. Over-sized, recycled tractor tires had been deposited offshore of The Mayan Beach Club property years ago in an unsuccessful government attempt to create an offshore reef. Although not proven, the suggestion was made by the Applicants that the Sand Mound formed as the result of the tires that had washed ashore or ended up on the beach through the beach's advancement due to sand accretion. The suggestion was not disputed by the other parties. It is the only explanation offered by any of the parties for the Sand Mound's isolation from other dunes and its peculiar location seaward of an extensive expanse of upland beach. The Sand Mound's lack of "alongshore continuity" means it is not a "primary dune." It is not a "frontal dune" because there is no "interdunal trough" between it and a primary dune. See Fla. Admin. Code R. 62B-33.002(17)(b). The Sand Mound is not a "significant dune" because it does not have "sufficient height and configuration or vegetation to offer protective value." See Fla. Admin. Code R. 62B-33.002(17)(a). In a major storm event, the Sand Mound would be unable to hold back storm surge. Water would flow over the Sand Mound or flank it so as to move around it. Despite the Department's reference to it as a "dune" in the Permit, the Modification and elsewhere, the Sand Mound is not a dune. It bears similarity to a dune in that is a mound of loose, sand-sized sediment deposited by natural or artificial mechanism which is bare or covered with vegetation and is subject to fluctuations in configuration and location. See Fla. Admin. Code R. 62B-33.002(17). Unlike a dune, however, it is seaward of an extensive expanse of beach. It is not "lying upland of the beach," see id., a characteristic of a dune, and, therefore, it is not a dune.3/ See id. The Permit and the Modification In December 2007, The Mayan Beach Club applied for a permit to reduce the Sand Mound (which it called a "berm") to existing beach level. In the application cover letter, The Mayan Beach Club's manager expressed "the opinion that a large tractor tire was washed onto shore, and never removed, thus causing the berm to evolve." Respondents' Ex. 4, Cover Letter. The cover letter also expressed a simple purpose: "to have the berm leveled to match up with all of the surrounding beaches." In mid-2008, Ocean Lane Villas, Inc., put in writing its support of the efforts to remove the Sand Mound and gave its permission to arrange for removal of the portion of it on Ocean Land Villas, Inc.'s property. The Department issued the Permit on October 2, 2009. But it did not authorize a leveling of the Sand Mound, as requested. The Permit contains a "Project Description" that opens with the caption "Dune Restoration." See Respondents' Ex. 27. The permitted activity is both excavation and restoration between approximately 395 feet and 535 feet seaward of the control line: A +13.0-foot (NAVD) dune feature is to be reduced to +10.0 feet (NAVD), with up to 1,442 cubic yards of excavated material to be spread adjacent to the feature and to construct a second dune feature (approximately 440 cubic yards) located to the north. Excavation and placement areas are to be planted with native salt-tolerant beach and dune vegetation. Id. The Permit authorization of a three-foot reduction in the Sand Mound allows about half of the Sand Mound's five to six-foot elevation above the beach surface to be reduced so that it would have a two to three feet elevation above grade. In January 2011, Coastal Systems International, Inc., submitted an application for a modification of the Permit. The application was received by the Department's Bureau of Beaches and Shores on January 18, 2011. The application proposed that the Sand Mound be removed in its entirety "restoring grade to match the typical conditions of the beach in the area." Respondents' Ex. 33, p. 2. The application's cover letter described the Sand Mound as "an anomaly, uniquely located more than 400 feet east of the landward edge of the beach." Id. The Modification application provided more compelling reasons for the need to remove the Sand Mound beyond the desire of The Mayan Beach Club as expressed in the Permit application to have its beach match the beach in the area. In addition to the contention that the Sand Mound had negative impacts to sea turtles, the cover letter asserted that it "obstructs resident views of the ocean . . . and is an 'attractive nuisance' encouraging trespass onto private property and trash accumulation, and resulting in negative impacts to the Permittee's property values and security." Id. On September 14, 2011, the Department issued the Modification. Its Project Description is markedly different from the Permit's. Rather than "Dune Restoration," the Project Description in the Modification is "Dune Redistribution." Instead of excavation and restoration, the Modified Project, as applied for, is one for "Removal": Dune Redistribution: Removal: Removal of the existing vegetated sand mound[4/] located approximately 514 feet seaward of the control line and redistribute approximately 1,730 cubic yards of the sand across the property. The mound is approximately 140 feet in the general shore- normal direction by 176 feet in the general shore-parallel direction. The removed sand is to be distributed between the Seasonal High Water Line and the western edge of the existing sandy beach to a maximum distance of 536 feet seaward of the control line. Id. at p. 2. Since all of the excavated sand will remain on the beach seaward of the CCCL, there will be no net excavation of in- situ sand or soil seaward of the CCCL. In sum, the primary effect of the Modification is to change the Permit from one that allows the Sand Mound's elevation to be reduced by three feet, to one that removes the Sand Mound in its entirety. The Modification calls for distribution of the excavated sand on the beach, but the Modification, unlike the Permit, calls for no restoration activity that would create a new sand feature. The Parties The Mayan Beach Club is a condominium association that operates and manages a 22-unit low-rise oceanfront residential condominium located along the southern part of Fort Lauderdale's beach. Shortly after its incorporation in 1953, The Mayan Beach Club assumed management of the condominium and its newly- constructed units. The Mayan Beach Club's condominium property is roughly 1/4 of a mile north of the ocean inlet to Port Everglades, a major seaport. Due primarily to a jetty that extends into the ocean along the edge of the inlet, beach sand has accreted in front of its property over a period of several decades. The Mayan Beach Club's property is bounded "on the East by the waters of the Atlantic Ocean." See Respondents' Ex. 11, Schedule A to Title Opinion and Guarantee, Fund Serial No. 18344. Its fee title ownership includes nearly 700 linear feet of beach between the CCCL (seaward of the condominium residential improvements) and the mean high water line ("MHWL") of the Atlantic Ocean. Ocean Lane Villas, Inc., is an association that owns adjacent property to the south of The Mayan Beach Club property. It notified the Department that it supported the Permit and granted permission for the authorized activity to be conducted on its property. It joined The Mayan Beach Club in seeking the Modification. The Department is the state agency with the authority to establish CCCLs and to issue permits for construction activities seaward of a CCCL when an applicant has shown the permit "to be clearly justified by demonstrating that all standards, guidelines, and other requirements set forth in the applicable provisions of Part I, Chapter 161, F.S., and [Florida Administrative Code Rule Chapter 62B-33] are met . . . ." Fla. Admin. Code R. 62B-33.005(4). Also see §§ 161.052 and 161.053. Incorporated in the State of Florida on August 31, 2010, STOP is a not-for-profit corporation. Its mission is to protect sea turtles, reduce hatchling mortality due to disorientation from artificial light sources, educate the public about marine turtle habitat and assist the State of Florida with its sea turtle conservation program. Broward County is a political subdivision of the state that has existed for more than one year prior to the date of the filing of the application at issue. Official recognition is taken that the population of Broward County is in excess of 25. The Charter of Broward County addresses its interests in natural resources and environmental protection. It has authority, for example, to adopt environmental rules and regulations that prevail over municipal ordinances with which they conflict. Standing STOP's Standing STOP was incorporated less than one year prior to the date of the filing of the application for the Modification. STOP has 120 permanent staff members. "Almost all of them" (Hearing Tr. vol. 2, 231, Feb. 16, 2012), live in Broward County. All of STOP's permanent staff members are permitted by the Florida Fish and Wildlife Conservation Commission ("FWC") to monitor Broward County's beaches nightly during sea turtle nesting season. The members' work in the field is in shifts of a minimum of four hours between sunset and sunrise. Members work many shifts of more than four hours, some as long as ten hours. The activity of STOP includes recovering disoriented turtle hatchlings and documenting disorientations. To rescue sea turtles, FWC permittees must complete a written test and field training that requires 40 hours on the beach. STOP's program is unusual. It is one of the few organizations in Florida that recovers hatchlings at all hours of the night instead of in early morning daylight after hours of disorientation. According to STOP activity logs, at least 20 different members have patrolled the beach in the area of the Sand Mound. STOP has a website for public use and another accessible only to its members. It posts photos, videos, commentary associated with its activities and materials for public education to serve the conservation of sea turtles. Prior to filing its petition, STOP filed public comments with DEP that the Modification "is likely to cause harm to protected nesting adult sea turtles, and could prove deadly to numerous sea turtle hatchlings, in addition to harming other protected species." STOP Ex. 11. Broward County's Standing Broward County has established a Natural Resource Protection Code in Chapter 27 of the Broward County Code of Ordinances (the "BCC"). The Natural Resource Protection Code was adopted by the County to promote the preservation, protection, and enhancement of natural resources. These resources include coastal and marine animal and plant life. The County also relies on the Florida Statutes5/ and the Florida Administrative Code, including section 161.053 and chapter 62B-33, to protect the interests of the County and its residents in natural resources, plants, and wildlife that are present in the beach and dune system in Broward County. The County's eastern boundary is three miles east of the MHWL of the Atlantic Ocean. The beach area affected by the Modification is in the County. The County has an interest in protection of the area's natural resources, plant, and wildlife. The Sand Mound's Vegetation The Sand Mound's vegetation, in varying density, is spread over approximately 12,000 square feet of the Sand Mound. The vegetation is not as robust as typical dune vegetation. Vegetation on half of the Sand Mound is sparse. If the Sand Mound were part of a dune restoration project, it would require the planting of additional vegetation. In a 2011 Site Inspection Report, the Sand Mound was determined to support "Sea Oats, Panic Grass, Seashore Saltgrass, Beach Elder, Chamaesyce, Ambrosia, Railroad Vine, Dune Sunflower and Beach Star." Of the species growing on the Sand Mound only the beach star is endangered. After interaction with the Department of Agriculture, DEP, and the City of Fort Lauderdale, the Applicants agreed to plant several endangered species in another location as mitigation for the destruction on site of the beach star vegetation. The City of Fort Lauderdale agreed to partner with the Applicants as part of a dune restoration project at The Palms Condominium, north of the Applicants' property. The mitigation plan included removal of invasive exotic plants, and replanting the mitigation area with native plants, including several endangered species. The mitigation planting area is approximately 14,000 square feet, which is roughly 2,000 square feet more than the area of vegetation that will be lost through the removal of the Sand Mound. Minimization of Impacts The Applicants minimize impacts by not proposing activity beyond that which is necessary to remove the Sand Mound and distribute the excavated sand on the beach. Adverse Impacts "Adverse impacts" are defined by rule 62B-33.002(33)(a) as those "to the coastal system that may cause a measurable interference with the natural functioning of the coastal system." The "coastal system" is defined by rule 62B-33.002(13) as "the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and coastal construction." Removal of the vegetation on the Sand Mound, which is seaward of the CCCL, will, of course, have an impact on the vegetation which is part of the coastal system. But it will not cause measurable interference with the natural function of the coastal system. Removal of the Sand Mound, itself, will not cause adverse impacts to the coastal system. Mitigation The Department must deny an application for an activity seaward of the CCCL if it does not provide for mitigation of adverse impacts. If a project causes no adverse impact, mitigation is not required. See Fla. Admin. Code R. 62B- 33.005(3)(b). Mitigation is not required for the removal of the Sand Mound. Furthermore, no mitigation is required by the Modification since the vegetation will be removed if the Permit is implemented without the modification. Nonetheless, the Applicants entered into the mitigation described above with regard to the planting of endangered species. As part of the effort to mitigate off-site, the Applicants made a one-time payment of $7,500 to the City of Fort Lauderdale. The mitigation plan was successfully implemented prior to hearing. Other General Criteria The proposed project will not cause any anticipated short-term or long-term direct or indirect effects on the coastal system and will not cause cumulative impacts to the coastal system. The proposed project is not inconsistent with siting and design criteria. It will not result in damage to existing structures and property or lower existing levels of protection. It will not destabilize a frontal, primary, or significant dune nor will it cause significant adverse impacts to the beach and dune system due to increased erosion by wind or water. The proposed project will not reduce the existing ability of the coastal system to resist erosion during a storm. It will not significantly interfere with the coastal system's ability to recover from a coastal storm. The proposed project will not affect the hydrology of the water flowing across the land and will not direct discharges of water or other fluids in a seaward direction. The proposed project will not result in the net excavation of the in situ sandy soils seaward of the CCCL. The proposed project will not cause an increase in structure induced scouring. The proposed project will not interfere with public access and will not interfere with lateral beach access. Marine Turtles Each night during late summer months, thousands of marine turtle hatchlings emerge from nests located on Broward County's beaches. If not all, nearly all of the nests belong to two of the five species of marine turtles protected by the Marine Turtle Protection Act, section 379.2431, Florida Statutes: the Atlantic loggerhead turtle and the Atlantic green turtle. Of these two species, the green turtle is more likely to be affected by removal of the Sand Mound. A significant number of the turtle nests in Broward County are green turtle nests, and a significant number of the hatchlings on Broward County's beaches and in the area of the Sand Mound are green turtle hatchlings. Marine turtles nest on a wide variety of beaches, but they tend to prefer steeply sloped beaches with prominent vegetated dunes. Dunes are a particular attraction for green turtles in search of a nest because green turtles prefer to nest at higher beach elevations than do loggerheads. The Sand Mound is a marine turtle nesting habitat. Removal of the mound poses the threat of three impacts to marine turtles: 1) promoting abandonment of nesting attempts by female turtles; 2) negatively affecting the survivorship of nests that would have been in the Sand Mound; and 3) disorientation of hatchlings emerging from nests where the Sand Mound would have been when the Sand Mound would have provided silhouette and shape cues that correctly orient hatchlings toward the sea. Sea turtle hatchlings orient toward the ocean and hatchling disorientation frequently results in death. The Sand Mound offers a visual cue to a female marine turtle that indicates the turtle has crawled far enough out of the water and can stop. Turtles that emerge and find no dune or other cover tend to wander longitudinally along the beach. They may return to the sea in what is known as a "false crawl." See Hearing Tr. vol. 2, 201-202, Mar. 9, 2012. False crawls have a cost to the female turtle's energy requirement for nesting. Dune elevation increases nest survivorship because it protects the eggs from storm events. Nests at higher elevations have a better chance of survival than nests at lower elevations because they are less likely to suffer effects from erosion and inundation, two of the main factors that determine nest survivorship. A dune also offers to hatchlings the benefit of a silhouette which blocks out artificial light from the low landward horizon that causes hatchling disorientation. Prominent vegetated dunes are especially helpful in assisting hatchling orientation. Dune vegetation also provides shade, which increases the nest survivability over nests in bare sand. Artificial lighting can disrupt the ability of hatchlings to find the sea from their nests. Hatchlings benefit from the silhouette of a dune that blocks out some of the disorienting lights that exist in an urban environment. Dune vegetation assists in scattering light, and the downward slope of a dune is a cue that orients hatchlings towards the water. Both Dr. Witherington and Dr. Rusenko testified that in their opinion, the removal of the Sand Mound would constitute a "take" as defined in section 379.2431. Isolating the impact of the removal of the Sand Mound is difficult, however, because there are so many factors that have a bearing on turtle nesting and hatchling disorientation along the southern stretch of Fort Lauderdale's beach. These factors include "night glow," predation, erosion form high-wave storms, weather, inundation, and direct artificial lighting. Dr. Witherington was more equivocal as to whether the Modification would be a take if the Permit had been implemented. See Hearing Tr. vol. 2, 252-255, Mar. 9, 2012. In contrast to the opinions of Drs. Witherington and Rusenko which were based on knowledge of marine turtle behavior in general, the Applicants' biological consultant, John James Goldasich, used Broward County data about turtle nesting and hatchling disorientation in the area of the Sand Mound to form his opinions. Mr. Goldasich also based his opinion on light measurements taken on site which indicated no distinction between the lux values of light on the east side of the Sand Mound and on the west side. Furthermore, night glow, which tends to disorient marine turtles, is significant near the Sand Mound and on the southern stretch of Fort Lauderdale's beach. The accuracy of the Broward County data used by Mr. Goldasich was verified by Lewis Edward Fisher, Jr., the County's lead employee for turtle management. Some of the data included turtle nests that were relocated onto The Mayan Beach Club property, but of the exhibits used by Mr. Goldasich, only Respondents' Exhibit 161 showed relocated nests. The inclusion is insignificant. Exhibit 161 depicts only two relocated nests. Mr. Goldasich offered opinions with regard to two issues: 1) whether the Sand Mound affects the location and pattern of turtle nesting; and, 2) whether the Sand Mound has an effect on hatchling disorientation. Three nest plotting maps used by Mr. Goldasich illustrate that the Sand Mound has had little, if any, impact on the location and pattern of turtle nesting: 1) Applicants' Exhibit 99, which plots nesting data of loggerhead and green marine turtles in the vicinity of the Sand Mound from 2002 to 2011; 2) Applicants' Exhibit 128, which plots nesting data in a broader area than Applicants' Exhibit 99 from 2001 through 2011; and 3) Applicants' Exhibit 133, which plots nesting data of loggerhead and green turtles along southern Fort Lauderdale beach for the year 2011. The three exhibits show no concentration or pattern of loggerhead nesting in the vicinity of the Sand Mound. The absence of effect on loggerhead nesting is expected because they do not exhibit the preference for nesting in dunes that green turtles exhibit. Of approximately 34 green marine turtle nests plotted on Applicants' Exhibit 99, only six have nested in the immediate vicinity of the Sand Mound. The locations of the other 28 nests demonstrate the preference of green marine turtles to nest at higher elevations in the upland beach. Respondents' Exhibit 133, that contains FWC data, supports the finding that the Sand Mound has been a negligible factor for the nesting of green turtles. Of the 15 green turtle nests depicted in Respondents' Exhibit 133, two are located in the vicinity of the Sand Mound. Four are concentrated in a small contained beach area next to tall buildings near the mouth of Port Everglades in an area of greater light disturbance, but with no dune influence. The remaining nine are spread over the hundreds of meters to the north and south of the Sand Mound. They do not depict any concentration of green turtle nesting close to the Sand Mound. Applicant Exhibits 99, 128, and 133 establish that the Sand Mound has had little, if any, bearing on marine turtle nesting. To evaluate whether the Sand Mound had any discernible effect on hatchling disorientation, Mr. Goldasich analyzed FWC Marine Turtle Disorientation Reports provided by the County. If the Sand Mound protects hatchlings from disorientation, then hatchlings from nests on or near the dune should exhibit less disorientation. In comparing disorientation from two dozen nests, there is no correlation between nest proximity to the Sand Mound and hatchling disorientation. Analysis of hatchling disorientation data from the four 2011 green turtle nests in the immediate vicinity of the Sand Mound also yields a finding of no correlation between nest proximity to the Sand Mound and hatchling disorientation. There is insufficient evidence as to why so many hatchlings in the proximity of the Sand Mound have not benefited from its presence. It may be because of night glow, weather, or other relevant factors. Whatever the cause, Respondents have presented empirical data and analysis that reveals no orientation benefit to hatchlings from the Sand Mound, a sand feature that is not a dune on a stretch of beach that is without dunes. The Applicants' data and analysis is more persuasive than Petitioners' prediction based on general knowledge of marine turtle behavior in coastal systems that include dunes. No Take Letter When the Department believes a proposed project justifies an inquiry into whether the project would constitute a Marine Turtle Take, it asks FWC to investigate the issue and, if appropriate, to issue a "take letter." See Hearing Tr. vol. 1, 24, Mar. 9, 2012. In the initial stages of the review of the application for the Permit, the Department did not request FWC to determine if a take letter should be issued. The proposed activity seemed to Department personnel not to constitute a "take." Furthermore, the activity was restricted to a time outside of the marine turtle nesting season. Later in the process when the "take" issue had been raised by others, DEP requested that FWC determine whether or not to issue a take letter. The Department contacted FWC repeatedly about the matter. FWC did not issue a take letter. The Department: No Position on the "Take" Issue At hearing, the Department described its position on the Marine Turtle Take issue as neutral. It continued to have no position on whether the evidence demonstrated a "take" or not in its proposed recommended order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order that issues the Modification as reflected in Permit No. BO-612 M1 filed by the Department with its Clerk on September 14, 2011. DONE AND ENTERED this 22nd day of August, 2012, 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 22nd day of August, 2012.
Findings Of Fact Suncoast Highland Corp. (Suncoast), is the developer and registrant of Shadow Run Subdivision in Hillsborough County. Prior to 1970, Suncoast was known as Suncoast Peach Corporation. C. Thomas Petersen, Peter Lenhardt, and two other individuals formed Suncoast Peach Corporation in 1964. In 1974 Suncoast registered Unit 1 of Shadow Run with the Division of Land Sales (Division). At that time Suncoast's principals were C. Thomas Petersen, President and Director, and Peter M. Lenhardt, Vice President, Director, and in charge of marketing. As a charter stockholder and owner of 166,000 shares (26-2/3 percent of ownership), Lenhardt filed an affidavit stating he devoted 100 percent of his time five days per week to Suncoast's business affairs. Lenhardt was (and presumably still is) a registered real estate broker and was in charge of sales in Shadow Run. In 1977 Suncoast registered Unit 2 (consolidated with Unit 1) with the Division. At this time Petersen and Lenhardt alleged each owned 13.5 percent of Suncoast and Lenhardt again filed an affidavit stating he devoted 100 percent of his time to Suncoast's business affairs and was in charge of sales in Shadow Run. In the Annual Report filed November 13, 1978, Lenhardt executed an affidavit representing himself to be Suncoast's principal officer in connection with this filing. This report included financial and inventory data for Shadow Run, Units 1 and 2, as well as 16 other registered subdivisions. At this time Petitioner and Lenhardt represented they each owned 38 percent of Suncoast (Exhibit 1E). On January 30, 1979, Lenhardt filed, under oath, renewal applications for Shadow Run, Units 1 and 2. This application (Exhibit 1F) showed out of 277 lots registered in Unit 1, 227 had been deeded and 50 remained to be sold. In Unit 2 out of 89 registered lots, 76 had been deeded and only 13 remained unsold. In August 1978 the Division began receiving complaints from Shadow Run homeowners concerning assessments, placing of utilities, and lack of promised recreational facilities. After meeting with the homeowners association and representatives of Suncoast, the Division issued a Notice to Show Cause against Suncoast. For several months thereafter representatives of the Division, Suncoast, and the homeowners association attempted to resolve the complaints. On April 19, 1979, C. Thomas Petersen, President, and Thomas Coates, Secretary, of Suncoast executed a stipulation in which, inter alia, further sales would remain suspended pending submission of all promotional and advertising materials to the Division, Suncoast would enter into an agreement concerning recreational facilities to be furnished by Suncoast, and Suncoast would pay a $7,500 civil penalty to the Division (Exhibit 1G). On December 10, 1979, Suncoast executed an agreement (Exhibit 1H) whereby it agreed, among other things, to install a concrete boat ramp no longer than 20 feet extending not more than two feet into Lake Grady on Lot 14, Block 1, Shadow Run, Unit 1, and convey legal title of the boat ramp area to the association; and, in conjunction with the boat ramp, provide a parking area 96 feet wide abutting on Shadow Run Boulevard at Lot 14, Unit 1, Shadow Run Subdivision, running from Shadow Run Boulevard to the water. This agreement was not recorded. No evidence was submitted when, or if, Lenhardt disposed of his ownership interest in Suncoast and Timber Oaks and terminated his management role in those companies. Lenhardt was listed as Secretary/Treasurer of Suncoast in the annual corporate report for 1980. His name on the 1981 annual corporate report for Suncoast was lined out and Linda Burr's name was added as Secretary. Lenhardt's name does not appear on subsequent reports. Timber Oaks, Inc., was incorporated February 11, 1980, with C. Thomas Petersen as President, Peter M. Lenhardt as Vice President, and Linda Burr as Secretary (Exhibit 3). On the 1981 annual corporate report Lenhardt's name was lined out and Linda Burr's name was added as Secretary. Coppice-Boden, Inc., was incorporated August 28, 1980, with Peter Lenhardt as President, Helen K. Lenhardt as Vice President, and Delores Hamm as Secretary. Hamm's name was deleted from the 1982 annual corporate report and both Lenhardts continued to be listed through the 1984 annual corporate report. No evidence was submitted showing transfer of the property which included Lot 14, Unit 1, Shadow Run Subdivision 1, from Suncoast to Timber Oaks, Inc.; however, by warranty deed dated October 29, 1982, Timber Oaks, Inc., conveyed property which specifically included Lot 14, Unit 1, Shadow Run Subdivision 1, to Coppice-Boden Corp., for a stated consideration of $340,000 (Exhibit 5). On November 11, 1982, Coppice-Boden, Inc., mortgaged the property which included Lot 14, Block 1, Unit 1, Shadow Run Subdivision, to G. G. Moore to secure a note in the amount of $72,031.63. The Special Warranty Deed dated February 29, 1980 (Exhibit 8) whereby Community Banks of Pinellas conveyed certain property to Timber Oaks, Inc., excluded Lots 1 through 22, inclusive, of Block 1, of Shadow Run, Unit 1.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the license of Frederick B. Mee d/b/a B & M Air Conditioning and Refrigeration Service, Inc., be suspended until satisfactory proof of his personal finances is received by the Florida Construction Industry Licensing Board. DONE and ORDERED this 5th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Mr. Frederick B. Mee 1123 El Dorado Parkway Cape Coral, Florida 33904 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
Findings Of Fact Upon consideration of the oral and documentary evidence adduced in this proceeding, the following relevant facts are found: Petitioner Sailfish Club of Florida, Inc. is a nonprofit Florida corporation which operates a 550-member private club in Palm Beach County, Florida. Its facilities include a swimming pool, large dining room, cocktail lounge, private dining rooms, card rooms and a marina with three docks and 62 slips. Petitioner's annual membership dues are $925 per member. The marina docks are constructed over 94,815 square feet of submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund. The wet slip space comprises 2,531 linear feet. Marina slips are available to members only and are rented at $39.69 per linear foot per year. Prior to March 10, 1970, it was the policy of the Board of Trustees to permit the use of sovereignty submerged lands without charging annual fees. At present, all docks, piers and other structures on sovereignty lands in existence prior to March 10, 1970, are "grandfathered" and are not subject to the current lease requirements until January 1, 1998. On March 10, 1970, the Board of Trustees adopted a new policy providing for the licensing of private interests desiring to occupy sovereignty lands in conjunction with the operation of marines, charter boat docks and other commercial mooring facilities. The licenses were to be issued upon payment of no less than two cents per square foot annually for sovereignty land severed from public use, and each license was to be renewable annually after receipt of the appropriate fee. On August 25, 1970, petitioner and the Board of Trustees entered into a license agreement whereby petitioner was permitted to construct, install and operate a marina and commercial dock facility upon sovereignty lands. Petitioner agreed to pay the Board two cents per square foot of the sovereignty lands occupied. Section 5 of the license agreement provided as follows: "This License shall be renewable annually if the Licensee has complied with all the terms and conditions of this License, including payment of the annual license fee. The license fee for renewal shall be no less than the original fee. The Board shall not increase the license fee by more than 10 percent in any one renewal term." Section 6 allows the licensee a 90-day grace period after expiration to renew the license. Most, if not all, license agreements entered into between 1970 and 1975 contain this language. In reliance upon that license agreement, petitioner expended some $205,000.00 for construction of docks and other facilities solely related to the marina function of the Club. Each year thereafter, beginning in August of 1971, petitioner renewed its license for a period of one year by tendering the license fee of two cents per square foot for the 94,815 square feet of submerged land occupied by the marina. From 1970 until 1980, petitioner paid annual license fees of $1,896.00. Beginning in 1980, the Department started increasing its annual marina license fee by ten percent, as permitted under the license agreement, and petitioner paid the increased annual fee. Around 1975, the Board of Trustees and DNR discontinued issuing licenses and shifted to leases for the use of sovereignty submerged lands. The form sovereignty submerged land lease agreement provided that "renewal of this lease is at the sole option of the Board of Trustees or its legally designated agent." Nevertheless, the Department continued to renew existing licenses upon the tender of the annual fees. By letter dated June 30, 1982, the DNR informed petitioner that its marina license fee would increase each year at the rate of ten percent, and suggested that petitioner may wish to convert its license into a five-year lease. Petitioner declined the suggestion and remitted its annual renewal fee for its license. In August of 1983, the petitioner paid to the DNR fees in the amount of $2,776.37 for its 1983-94 annual marina license. On August 1, 1983, the DNR adopted amendments to Chapter 16Q-21, Florida Administrative Code, which governs sovereignty submerged lands management. The amendment included in the list of activities for which a lease would be required "Existing licenses upon the date of expiration or renewal." Rule 16Q-21.05(1)(b)4, Florida Administrative Code. Marina leases were to be handled under the standard lease provisions, which include a term of up to 25 years "renewable at the option of the Board." Rule 16Q-21.08. The annual standard lease fee, as amended in August 1983, was to be computed at a statewide base rate of $0.065 per square foot, with an additional 20 percent of the lease fee to be charged for the first annual fee, and the per square foot base rate to be revised each year. Marinas open to the public on a first come, first serve basis were permitted a 30 percent discount per square foot per year. Rule 16Q-21.11(1), Florida Administrative Code (1983 Annual Supplement). By letter dated November 14, 1983 petitioner was informed by the DNR that due to the new rule amendments, specifically section 16Q-21.05(1)(b)4 which requires a lease for existing licenses upon the date of expiration or renewal, petitioner would need to obtain a sovereignty submerged land lease in order to continue to legally operate its facility. Petitioner was further informed that its license fee was current until August 25, 1984, and that it would be billed for the difference between the license fee and the new rate required under the lease. The DNR warned petitioner that if it did not receive petitioner's lease application within 90 days, it would assume petitioner no longer desired to maintain the legal use of the facility and would proceed under the removal of structures provisions of petitioner's license. Petitioner did not submit a lease application to the DNR. Had petitioner converted to a lease, the annual lease fee would have been $6,162.98, plus the 20 percent surcharge of $1,232.59 for the first year of the lease. A $200.00 processing fee would also have been required. In the February 24, 1984 issue of the Florida Administrative Weekly (Vol. 10, No.8), the DNR gave notice of its intent to amend Rule 16Q-21.11 relating to standard annual lease fees. The purpose of the amendment is "to establish a framework for more equitable compensation to the Board of Trustees. . for exclusionary uses of state-owned submerged lands." While the prior rule provided for an annual lease fee computed at a statewide base rate of $0.065 per square foot, the amendment establishes a new formula of seven percent of the "total potential annual revenues from the wet slip rental area or the base fee, whichever is greater." The total potential revenues are to be calculated "by multiplying the total number of linear feet for rent in the wet slip rental area times the weighted average monthly per linear foot rental times 12. The weighted average per linear foot rental will be derived from the monthly rates (seasonal rates included). Any ancillary charges, such as membership fees, dues, or miscellaneous fees which are required to rent a wet slip, shall also be proportionately factored into the average monthly rate." Rule 16Q-21.11(1)(a)1. The proposed rule provides that the monthly rental rates used to determine the weighted average will be derived for posted price sheets or other information from the previous year certified as true and correct by the lessee. The calculated rate is to be reviewed and adjusted annually on the anniversary date of the lease. A full copy of the challenged proposed rule is attached to this Order. In early 1982, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund, appointed a "Blue Ribbon Marina Committee" to review Florida's marina policies and to develop a policy to establish a new formula for submerged land lease fees. The 14-member Committee included representatives of county government, a regional planning agency, environmental interests, marine industries, marina owners, general citizenry, boating interests and developmental interests. The Director of the Florida Sea Grant College Program, Dr. James Cato, served as the Committee's Chairman, and designated DNR personnel served as its staff. After meeting monthly from May through October and holding seven public workshops, the Blue Ribbon Marina Committee issued its final report in January of 1983. It was the final recommendation of the Committee that while there should be some differential charges (i.e., for activities in aquatic preserves, between revenue generating, income related uses and non-revenue generating, non-income related uses), the differential should not be geographic and the method for determining lease fees should be a simple statewide base rate. The committee recommended a base rate of 5 cents per square foot per year, with capped increases tied to the Consumer Price Index. The Blue Ribbon Marina Committee's recommendations were not accepted by the Board of Trustees. Instead, an interagency task force comprised of the Executive Directors of the DNR, the Department of Revenue and the Governor's Office of Planning and Budgeting, plus staff, was formed to report back to the Board of Trustees with recommendations on fee structures. Without holding any public meetings or listening to witnesses, this task force originated the lease fee formula found in the proposed rule. The task force elected to utilize the "total potential annual revenues from the wet slip rental area" as the basis for its 7 percent formula, in lieu of a percentage of pure gross revenue approach, primarily to avoid auditing problems. It was believed that it would be too difficult to separate out revenues received from grandfathered structures or other facilities not related strictly to wet slip rentals. In effect, total potential annual revenues were assumed to be identical to actual gross revenues. The Economic Impact Statement (EIS) prepared for the proposed amendments to Rule 16Q-21.11 estimates in detail the cost to the DNR to implement the new lease fee formula. In estimating the costs to those persons directly affected by the proposed rule, the EIS generally notes that there will be an increase in fees for certain existing and new lessees, makes a broad generalized estimate of an average increase of $378.00 per lease and recognizes that the exact individual lease fee increase will vary greatly among lessees. The EIS notes that increased costs to the boating public utilizing marina facilities could be anticipated. Finding that lease fees based on five to twelve percent of gross revenues are economically viable, the EIS concludes that the proposed rates are economically feasible. The EIS contains no estimate of the effect of the proposed rule upon competition within the marina industry. It is noted in the EIS that submerged land leasing practices utilized in other states were reviewed and a comparison of those practices is attached to the EIS. Of the eleven states reviewed, none utilized a percentage of potential revenue approach. Other practices included lease fee structures based upon appraised market value of the adjacent upland, percentages of actual gross revenues, uniform base rates per square foot and flat permit charges. In Florida, there are considerable variations among commercial marines as to rental fees charged for wet slips, the level of services provided, utilization or occupancy rates, services and amenities located on the upland property and costs of operation, taxes, insurance and utilities. Wet slip rental rates are generally based not only upon the value of the submerged land in terms of its location, convenience and access to recreational waterbodies. Rental rates also take into consideration the value of the upland property in terms of its geographic advantages, the value of the improvements to the upland property and amenities available thereon, and the value of the improvements to the submerged land in terms of the structures and services offered, as well as the costs of operation of the docking facility. The slip rental fees are also dependent upon whether the particular marina is financially supported entirely by wet slip rentals or whether other services, such as repair and maintenance fees, fuel charges, charges for dry storage, or even upland facilities and activities comprise the bulk of its revenues. It is thus possible for two adjacent marinas or docking facilities which occupy the exact same amount of sovereignty submerged land to have a wide variance in the fees charged for wet slip rentals. Under the proposed total potential revenue formula lease fees per linear foot may vary from marina to marina in the same geographic location, depending upon the weighted average per linear foot of slip rental charged by each marina in the preceding year.
The Issue Whether Respondent violated Section 370.142(2)(c), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact The terms of the settlement agreement between the parties are set forth in the following paragraphs. The parties stipulated to the factual basis alleged in Case No. 97-4209. As set forth in the citation dated August 7, 1997, Respondent Jorge Cabrera (Cabrera) was fishing 130 untagged crawfish traps. This was the second time within a 24-month period that Cabrera was in violation of Section 370.142(2)(c), Florida Statutes. Petitioner, Department of Environmental Protection (Department), agrees to abate the notices that form the basis for Case Nos. 97-4416, 97-4485, and 97-5005 on the following terms and conditions: Cabrera shall immediately pay a fine of $5,000 to the Department. Cabrera shall have his Saltwater Products License (SPL-44525) and all endorsements thereto, C-9049, X-1615, V-7859, ML-887 and RS (current RS expiring June 30, 1999), suspended for five years beginning July 1, 1998, and continuing through the end of the 2002/2003 license year. It is specifically recognized by the parties that the SPL and endorsements currently held by Cabrera remain active until and through the close of business hours (5:00 p.m.) June 30, 1998. The parties agree that the license is suspended for five years, but that at the end of the five-year period, Cabrera is otherwise eligible to reapply for an SPL and the endorsements currently held on the 1997/1998 SPL license, which are the Restricted Species (one-year eligibility remaining), Crawfish, Blue Crab, Stone Crab, and Marine Life endorsements. In this case only, as part of the parties' settlement agreement, the Department agrees that the statutory requirements for renewal of the Crawfish and Stone Crab endorsements and specifically the currently mandatory every September 30-renewal-application deadline for the Stone Crab renewal are tolled during the suspension period. The qualifying period for the RS endorsement is tolled only as to the time currently remaining for requalification on the existing license, which would be one year remaining eligibility. Upon renewal of the SPL with endorsements application for the 2002/2003 license year, eligibility and time remaining will resume from what Cabrera had at the time the suspension became effective. The time periods tolled begin to run again on July 1, 2002, whether the SPL holder has applied for reactivation of his SPL with endorsements or not. Specifically, if there is no application for an SPL with RS endorsement within one year of July 1, 2002, the one year's eligibility remaining from the 1997/1998 license expires. Any time that has expired after July 1, 2002, counts, and the time remaining to requalify for the RS will be whatever time remains from the one-year eligibility which begins to run on July 1, 2002, and expires on June 30, 2003. For example, if the application is received by the Department in September 2002, the applicant would have only nine months of RS eligibility remaining. Under current license application procedures, the earliest reapplication that may be submitted will be in April 2002 for the 2002/2003 license year. Cabrera shall have only until the close of the current year transfer-period to transfer his lobster-trap certificates. Any certificates not transferred are subject to forfeiture if they are not maintained pursuant to Section 370.142, Florida Statutes, during the license suspension period. All fines and fees must be paid to the Department before the transfers can be made. The Department will expedite the providing of forms, processing, and record activity, and Cabrera will expedite submittal of completed application(s) to allow reasonable time to accomplish any transfers or other record activity prior to the close of the transfer period. All traps (lobster and stone crab) must be removed from the water by the end of the fishing season. Any of Cabrera's traps that may become subject to disposition under the trap retrieval program (Section 370.143, Florida Statutes) must be handled as appropriate, even if the circumstances occur after the time the license suspension becomes effective. The parties agree to bear their own costs and attorney's fees associated with these proceedings. The parties agree that breach of the settlement agreement between the parties will revive all rights and remedies available to the non-breaching party that the party had against the other prior to entering into the settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which incorporates the provisions of the Settlement Agreement between the parties. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 M. B. Adelson, IV, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 John A. Jabro, Esquire 90811 Overseas Highway, Suite B Tavernier, Florida 33070
Findings Of Fact Petitioner, Grove Isle, Ltd. is the developer of a 510 unit three-tower condominium project on an island now known as Grove Isle in Biscayne Bay. As part of the project Grove Isle plans to construct a ninety slip pleasure boat marina on the west side of the island. Since its inception, the project has been in litigation between the parties to this Proceeding. See Bayshore Homeowners Association, Inc., et al v. DER, DOAH Case No. 79-2186, 79-2324 and 79-2354; State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3rd D.C.A. 1974); Doheny vs. Sailboat Key, Inc., 306 So.2d 616 (Fla. 3rd D.C.A. 1974); Bayshore Homeowners Association, Inc. v. Ferre, Case No. 80-101-AP (Circuit Court, Appellate Division, Dade County, September 16, 1980). Petitioners Doheny and Filer have their residences near the site of the proposed marina. In the past they have used the waters in and around this site for fishing, boating and swimming. If the marina is constructed their use of the waters in the immediate area of the marina could be limited somewhat. While Petitioner Jaffer does not live in the immediate area of the marina, he also uses the waters of Biscayne Bay around Grove Isle for recreation. The project could have some minimal impact on his use of those waters. The protesting organizations: Bayshore Homeowners Association, Inc., Coconut Grove Civil Club, Tigertail Association, and the Tropical Audubon Society, Inc. all have members who use the waters of Biscayne Bay in the area of the project for nature study or recreation. The use of these waters by their members could be diminished in some degree if the marina is constructed. That portion of Grove Isle from which the marina will project is owned by Grove Isle Club, Inc., an entity created to operate the recreational facilities appurtenant to the Grove Isle Condominium. The Club is an integral part of the Grove Isle condominium project. Membership in the Club is mandatory for unit owners. It is the plan of Grove Isle, Ltd. that after the marina is constructed the individual wet-slips will be sold to only condominium owners. Grove Isle, Ltd. expects to realize a onetime profit from the sale of each slip. The slips would therefore not produce a periodic or reoccurring income to the developer. In the recent past, DNR has interpreted its rules relating to submerged land leases not to require a lease for the construction of a marina over submerged state lands if the marina will not generate a regular income. Evidence of this practice dates back to June 8, 1978. On March 29, 1979, Grove Isle applied to DNR for a state lease of the submerged lands over which the proposed marina would be constructed. By a letter of April 4, 1979, from Daniel S. Meisen, Administrator, Operations Section, Bureau of State Lands, the Department informed Grove Isle that a lease would not be required. The full text of the letter follows: April 4, 1979 Ms. Pat Bourguin Post, Buckley, Schub and Jernigan, Inc. 7500 Northwest 52nd Street Miami, Florida 33166 Dear Ms. Bourguin: Martin Margulies A review of the above referenced application has aided us in determining that a lease will not be required although the submerged bottom lands are state-owned. Submerged land leases are not re- quired for private docks or non-income producing facilities. Your $150.00 refund is being processed and will be forwarded to you within the next two months. If we can be of further assistance in this matter, please contact Laura Lewallen of this office. Sincerely, Daniel S. Meisen Administrator Operations Section Bureau of State Lands DSM/11m cc: DER West Palm Beach Health Department The State of Florida owns the submerged lands to the west of Grove Isle over which the marina would be constructed. Beginning in the fall of 1979 and continuing through the spring of 1980, there was a string of correspondence between DNR, Mr. Doheny and Grove Isle. This was its basic pattern. Mr. Doheny would write to DNR with some information indicating in his opinion that the proposed marina would not be private in nature, that is, persons other than condominium owners might be able to use the wet-slips. In response to Mr. Doheny's letter DNR would then query Grove Isle requesting assurances that the marina would be private. At least three of these inquiries, April 26, 1979; October 26, 1979; and February 12, 1980, appear in the record. Grove Isle then responded with letters indicating in various ways that the marina would not be income producing. It is apparent from some of the correspondence that there were also oral communications among the parties. The contents of these communications do not appear in the record. Finally on March 13, 1980, Mr. Doheny wrote to DNR on behalf of the Homeowner Petitioners to express his disagreement with the Department's position previously expressed in correspondence dating back to April 4, 1979, that if the proposed marina is limited to only condominium owners and does not produce direct income then it does not require a lease. Mr. Dean on behalf of Dr. Gissendaner replied to Mr. Doheny on March 24, 1980, by reiterating the Department's consistent position on this project. The text of the letter fellow's: March 24, 1980 David A. Doheny, Esquire 1111 South Bayshore Drive Miami, Florida 33131 Re: Grove Isle Marina Dear David: Dr. Gissendanner asked that I respond to your letter dated March 13, 1980 regarding Grove Isle Marina. Attached his a copy of the affidavit executed by Grove Isle, Ltd. and the subsequent letter to Grove Isle, Ltd. from the Department of Natural Resources. It is the position of the Department of Natural Resources that where a condominium marina will derive no income from the rental or lease of boat slips and furthermore, where all slips will be used exclusively by the condominium unit purchasers that the marina is not a commercial/industrial docking facility requiring a lease from the Trustees pursuant to Rule 16C-12.14, F.A.C. and Chapter 253.03, F.S. (1979). This position is based on the proposition that riparian rights attached to a single condominium unit purchaser as do riparian rights for a single family lot owner who likewise is exempt from a submerged land lease. Sincerely, Henry Dean Assistant Department Attorney Division of State Lands HD/le Enclosures cc: Elton J. Gissendanner Richard P. Ludington On May 3, 1979, the Board of Trustees of the Internal Improvement Trust Fund passed a resolution which states in pertinent part that: Where the Trustees have title, by either deed of conveyance or sovereignty pursuant to 1 and/or 2 above, and where any person has requested an environmental or other permit and where the Trustees neither by statute nor rule must give permission for the use involved in the permit, the Execu- tive Director is authorized to indicate, by letter or otherwise, said circumstances and that no action by the Trustees is necessary for the said use; . . . Subsequently Mr. Jaffer, the Homeowners and Mr. Filer filed their petitions for administrative hearings on April 2, 1980, 4/ April 9, 1980, and April 21, 1980, respectively. DNR's position concerning a lease requirement was well known to all of the Petitioners by at least January 2 and 3, 1980, the date of the final hearing on the related DER cases for the instant project. 5/
Recommendation For the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Natural Resources issue a final order dismissing the petitions in Case Nos. 80-670, 80-768, and 80-815. DONE and RECOMMENDED this 11th day of December, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1980.
Findings Of Fact Harbor Course South is a one hundred and seventy two lot real estate development which is a portion of the Ocean Reef Club located at the extreme northern end of Key Largo, Monroe County, Florida. The Harbor Course South property was acquired in approximately 1964 along with over 1200 acres of adjoining property for approximately 1.5 million dollars. Driscoll Properties, Inc. ("Driscoll"), a Florida Corporation, is the developer of Harbor Course South. Driscoll Foundation, Inc., (the "Foundation") is a non-profit Florida corporation which owns a portion of the Harbor Course South property. (Driscoll and the Foundation are collectively referred to as the "Intervenors" or the "Permittees.") The Ocean Reef Club is a one thousand two hundred unit development encompassing approximately eight hundred acres including at least two eighteen hole golf courses, a marina and an air strip. Nine holes of golf are located in Harbor Course South. These nine holes were leased to the Ocean Reef Club in 1974-1975 pursuant to an agreement providing for creation of golf course lots and lake-front lots in Harbor Course South. The nine holes of the golf course located in Harbor Course South were in place by at least 1978 and have been in use since that time. In order to install those nine holes, some roads were cut through the property and the lakes were dredged. Thirty-eight of the one hundred and seventy-two lots in Harbor Course South were originally platted in 1978 or 1979. These thirty eight lots are referred to as Section 1 of Harbor Course South. All of lots in Section 1 have been sold to individual purchasers for an average price of $34,210.00 per lot. The thirty-eight lots in Section 1 were all sold prior to 1988. In approximately 1979, some roads were cleared and paved on the Harbor Course South property in order to provide access to the thirty-eight originally platted lots in Section 1. A number of the lots in Section 1 have been permitted for construction by Monroe County and houses have been constructed on several of them. No individual lot owner in Section 1 has been denied a permit for clearing at least some of his land for a homesite. Both the United States Fish and Wildlife Services ("U.S.F.W.S.") and the Florida Game and Fresh Water Fish Commission (the "Commission") have determined that the clearing and/or development of the lots in Section 1 will not require permits for the taking of endangered or threatened species or their nests. In 1985, the Intervenors, in conjunction with the Ocean Reef Club, sought a determination as to the extent of their vested development rights with respect to the Harbor Course South property by initiating a vested rights hearing before Monroe County. These proceedings were initiated under Chapters 380 and 120, Florida Statutes and resulted in a Joint Stipulation on February 23, 1988 recognizing that the Intervenors have vested rights to develop the Harbor Course South plats. (The Joint Stipulation is referred to as the "Vested Rights Determination.") The Vested Rights Determination recognized that the Intervenors and the Ocean Reef Club had incurred obligations and expenditures based upon the approval of the master plan for development of Ocean Reef in 1977 in accordance with the then-existing regulations of Monroe County. The expenses and improvements upon the property included the construction of roadways, water main extensions, medical facilities, and golf courses. As a result of these expenditures, the Vested Rights Determination established that the Intervenors were authorized to continue development under the master development plan for the Ocean Reef Club, notwithstanding the enactment of a comprehensive land use plan and development regulations by Monroe County on September 15, 1986. No appeal of the Vested Rights Determination was filed by the Florida Department of Community Affairs or any other party. The remaining one hundred thirty-four lots in Harbor Course South were subdivided into three plats in 1986. These plats have been designated Ocean Reef Plat Numbers 17, 18 and 19 (also referred to as Sections 2, 3 and 4 respectively of Harbor Course South.) The Intervenors were not required to obtain a permit from the U.S.F.W.S. or the Commission prior to subdividing and/or selling lots of the Harbor Course South property. Most of the infrastructure for development of Plats 17, 18 and 19 is in place. Paved roads were completed in 1987-1988. The electrical lines and sewer lines are in place and operational in all three plats. The water lines are in place and connected in Plat 17. The waterlines are also in place, but not connected, in Plats 18 and 19. The total area of Sections 2, 3 and 4 of Harbor Course South is 134.09 acres. The remaining one hundred thirty-four lots occupy approximately 53.66 acres of this total. The lots in the area are priced at an average of $127,000 each. The Intervenors have begun selling the lots in Plat 17 (Section 2 of Harbor Course South). This plat consists of twenty-five lots. No competent substantial evidence was offered to establish the exact number of lots sold or houses constructed in this area, but it appears that ten to twelve lots were sold between July 1, 1989 and December 13, 1989. At least one house has been constructed on this plat and three building permits are pending before Monroe County. Prior to selling the lots in Plat 17, the Intervenors reached an informal agreement with the U.S.F.W.S. and the Commission as discussed in more detail in Findings of Fact 33 below. In accordance with that agreement and because there was no indication of the presence of endangered or threatened species on these lots, it was determined that none of the lots sold in Plat 17 would require the issuance of a permit from the Commission before land clearing could take place. The sales of the lots in Plat 17 were not completed until after the issuance of a Proposed Permit by the Commission for the "incidental taking" of endangered and threatened species with respect to the entire Harbor Course Property. (This Proposed Permit is discussed in more detail in Findings of Fact 44.) After the Proposed Permit was issued and this challenge was filed, the titles to the lots sold in Plat 17 were transferred to the purchasers. As indicated above, some of these lot owners have proceeded with the development of their property without the need of a permit from the U.S.F.W.S. or the Commission. None of the lots in Plats 18 and 19 (Sections 3 and 4) have yet been offered for sale. The natural vegetation of North Key Largo, including the Harbor Course South property, consists largely of tropical hardwood hammock. The quality of the vegetation varies widely throughout the area. Development of the Ocean Reef Club has largely supplanted the hardwood hammock in that area. The golf course which is located on the Harbor Course South property was placed in the midst of the hammock. The golf course and the infrastructure for development of Harbor Course South have fragmented the hammock in Plats 17, 18 and 19. The hardwood hammock of North Key Largo is a unigue flora to North America, being extremely tropical in character. It is characterized by vegetation more commonly found on the tropical islands of the Carribean and is different from the tropical hammocks of mainland South Florida because of a difference in hydrology, i.e., the Florida Keys are substantially drier and have a lower water table. The hammock of North Key Largo has a very high species diversity with one hundred and five species of trees and shrubs and fifteen species of woody vines in the hammock vegetation. The ecology of a hardwood hammock is cyclical. Over the years, the hammock has demonstrated its ability to regenerate naturally. Thus, while much of North Key Largo was used as agriculture land in the late nineteenth and early part of the twentieth century, the hammock has recovered in those areas where it has been allowed to naturally regenerate. The species of plants in the hardwood hammock are well-adopted for colonizing. The trees are "good at getting their seeds into places where they will grow." Many of the species of hammock trees and shrubs have fruits that are attractive to birds and some animals such as raccoons. These animals, birds, and raccoons eat the fruit, do not digest the seeds, but pass them in their fecal material which helps spread the vegetation. Tree growth in a young hammock is initially rapidly vertical before spreading out to provide larger coverage. A mature hammock provides a "closed canopy" of branches which affords protection and transportation for many animals including woodrats and cotton mice. As the hammock matures, there is an accumulation of humis and leaf litter on the ground beneath the trees. This humis layer serves as a seed bed for new growth and accumulates over the years. The humis layer is an important factor in assessing the quality of a hammock as habitat for endangered species. It takes decades for a hammock to fully mature to the point that it provides habitat and food sources for woodrats and similar creatures. Because of the biological richness of the hardwood hammock, as well as to protect the off-shore coral reefs from the detrimental effects of run-off from development, the State of Florida, through the Conservation and Recreational Land Acquisition program, ("CARL") has designated much of area of North Key Largo at the top of the acquisition priority list. The area slated for acquisition under the CARL program extends approximately twelve miles from the point where U.S. Highway 1 enters Key Largo northeastward to the southern boundary of Harbor Course South. The State of Florida has already acquired large tracks of North Key Largo under the CARL program. These tracks include a large portion of the land on the east side of State Road 905 from Port Bougainville to the southern border of the Ocean Reef Club (Harbor Course South.) Moreover, the Foundation is currently negotiating with the State regarding the acquisition of approxiately twelve hundred acres immediately adjacent to Harbor Course South. The federal government has established the Crocodile Lake National Wildlife Refuge which embraces most of the land lying west of State Road 905 from Card Sound Road (near and west of the Ocean Reef Club) south to Lake Surprise, a distance of approximately twelve miles. In sum, a large portion of the property in North Key Largo outside the Ocean Reef Club and Harbor Course South does not have vested development rights. A vast majority of this property is, or will likely become in the near future, publicly owned for conservation purposes. Thus, large quantities of high quality tropical hardwood hammock habitat have been, or are in the process of being, acquired in the immediate vicinity of the Harbor Course South property. The hardwood hammocks of North Key Largo are inhabited by certain endangered and threatened species. The Commission has the authority to determine endangered species within the area of its jurisdiction under the Endangered Species Act of 1973, 35 U.S.C.A. 1531, et seq. The Key Largo woodrat (neotoma floridana smalli) and the Key Largo cotton mouse (peromystus gossypinus allapaticola) are animals which can be found in the secondary growth and mature tropical hardwood forests of North Key Largo. Both the woodrat and cotton mouse as well as the Schaus' swallowtail butterfly (heraclides aristodemus ponceana,) have been listed as endangered species in Rule 39-27.003, Florida Administrative Code. The hardwood hammock of North Key Largo also serves as a habitat for the Eastern Indigo snake (drymarchon corais couperi), which has been listed as a threatened species by the Commission pursuant to Rule 39-27.004, Florida Administrative Code. Rock piles, tree roots, mounds, piles of sticks, holes in the rock substrate, holes in the humis layer beneath the trees and similar hiding areas all serve as nests or "refugia" for the woodrat. A mature hammock provides an ideal habitat for the woodrat. Destruction of the habitat of the woodrat has been a key factor in the woodrat becoming an endangered species. The Key Largo cotton mouse occupies much of the same habitat as the woodrat. Although the density of the population has not been established, there is no dispute that some portions of the Harbor Course South property are populated with woodrats and cotton mice. The quality of the habitat varies significantly throughout the property. There is only limited evidence of the presence of the Schaus' swallowtail butterfly on the Harbor Course South property. There have been a few citings of the species in the vicinity of Harbor Course South, but it does not appear that this property is an important habitat for the Schaus' swallowtail butterfly. There is no specific evidence of the presence of the Eastern Indigo snake on the subject property. Before a lot owner in Harbor Course South can clear his homesite, the Monroe County Code requires the owner to secure a habitat analysis which must be prepared by an accredited biologist approved by the County. That analysis determines the quality of the hammock on the lot, which in turn determines the amount of vegetation which the County will allow the lot owner to clear. This requirement was in place for the first thirty eight lots that were originally platted in Section 1. Under the existing Monroe County Land Clearing Regulations, only twenty percent of a lot with high quality tropical hardwood hammock can be cleared; forty percent of a lot with medium quality hammock can be cleared and forty to eighty percent of a lot with low quality hammock can be cleared. As of the date of the hearing in this case, all lot owners in Harbor Course South who have applied for a building permit were allowed to clear at least a portion of the lot for construction of a homesite. It does not appear that any lot owner was permitted to clear more than forty percent of his lot. As indicated above, no permits from the Commission or the U.S.F.W.S. were necessary in order to clear the lots and commence building on the thirty- eight lots in Section 1. Likewise, the Commission determined that the habitat quality in the area of Plat 17 was sufficiently low that a permit would not be required for development on that Plat. However, the Intervenors were aware of the presence of endangered and threatened species in this area. Around the time that the Vested Rights Determination was obtained, the Intervenors entered into discussions with the U.S.F.W.S. and the Commission in an attempt to obtain an overall permit for Plat 17, 18 and 19 with respect to endangered and threatened species. During these negotiations, the Intervenors received permission from the U.S.F.W.S. and the Commission to proceed with development in Plat 17 even before a permit was issued. The Commission determined that the Intervenors could proceed with the development of Plat 17 without obtaining a permit because of the relatively low habitat value of most of the parcel and the apparent absence of any endangered species in this area. As part of the negotiations regarding this authorization, the Intervenors agreed to seek a permit with respect to the remaining one hundred and nine lots in the subdivision. The negotiations were prompted, at least in part, by an agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority (which provides water to the area) that established certain requirements before water connections could be made to new residential property in North Key Largo. This agreement requires that, before water connections can be made to an area inhabited by endangered or threatened species of wildlife, a permit must be obtained by the U.S.F.W.S. During the negotiations, the U.S.F.W.S. indicated to the Intervenors its desire to address the conflict between the endangered species on North Key Largo and development interests in "one big conflict rather than having to handle it land owner by land owner." The Commission agreed with this approach feeling it could better protect the subject species through required mitigation by the developer which would probably not be possible or practical when dealing with individual lot owners. Although the Intervenors questioned the legality of the requirements imposed as a result of the agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority, the Intervenors decided to try and work with both the federal and state agencies and attempt to meet their concerns rather than engage them in a legal battle over their authority to impose mitigation requirements on new developments. A permit from the U.S.F.W.S. or the Commission is not necessary for the Intervenors to sell the lots in Plats 17, 18 and 19. The Intervenors sought permits from the Commission and the U.S.F.W.S. in a good faith attempt to cooperate with the agencies responsible for enforcing the Endangered Species Act and to eliminate obstacles to the clearing and development of the lots by individual lot purchasers. The U.S.F.W.S. has developed specific rules and procedures for protecting the habitat of endangered species and issuing "incidental take" permits for activities that may impact on the species or their habitat. The Commission has not adopted any rules that specifically protect the habitat of endangered species other than a prohibition against molesting or harming their nests. Similarly, the Commission has no specific rules regarding "incidental take" permits. The Intervenors filed an application with the U.S.F.W.S. on March 13, 1989 seeking a permit for covering all of Plats 17, 18 and 19. Attached as exhibits to the application were copies of the pleadings from the proceedings whereby Intervenors received their Vested Rights Determination, a summary of a proposed revegetation project to be undertaken in connection with the permit; the Harbor Course Subdivision construction plans together with construction details; a report prepared by Dr. Earl Rich regarding North Key Largo endangered rodent preservation measures; a report by Dr. Jack Stout setting forth the results of woodrat and cotton mice trapping in the subject area; and an aerial photograph of the subject area. The application sought a "permit for the incidental taking of endangered species in connection with completion of development of a residential subdivision and related site improvements surrounding an existing golf course. The area to be cleared may include habitat for the Key Largo woodrat, cotton mice, or Schaus' swallowtail butterfly." A permit has not been issued by the U.S.F.W.S. with respect to Plat 17, 18 and 19. The Intervenors' application for a permit has been transmitted to the Commission. It is not clear how the application filed with U.S.F.W.S. came before the Commission for consideration. The Commission has no direct agreement with the Florida Keys Aqueduct Authority regarding water connections. The Commission's authority for asserting jurisdiction over the development is not based on any existing rules or statutes regarding "incidental take" permits. The U.S.F.W.S. has apparently agreed to defer to the Commission with respect to the issuance of a permit for the Harbor Course South development. The U.S.F.W.S. has been kept abreast of the negotiations and terms of the Proposed Permit and has suggested various changes during the negotiation process in an effort to coordinate the conditions of the two permits. By letter dated July 24, 1989, the Commission set forth conditions for the issuance of a permit to the Intervenors which would authorize them to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, and to take Eastern Indigo snakes, "incidental to land clearing operations and building construction of single family and cluster homes" on Plat 17, 18 and 19. The permit does not authorize the killing of woodrats, cotton mice or Schaus' swallowtail butterflies. The Commission stated that the permit was being issued pursuant to Rules 39-27.002(1) and 39- 27.002(2), Florida Administrative Code. (The July 24, 1989 letter setting forth the conditions for the permit will be referred to as the "Proposed Permit.") The Proposed Permit states that the permit will inure to the benefit of the Intervenors and their "successors in title or their agents." In other words, purchasers of lots from the Intervenors would be covered by the Permit and no additional permit would be necessary to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, or to take the Eastern Indigo snakes incidental to the development of their lots. The terms and conditions of the Proposed Permit were prepared after several meetings and discussions between Commission personnel, the Intervenors' expert biologist Dr. Stout and the developers themselves. The Proposed Permit requires both on-site mitigation and off-site mitigation. The on-site mitigation requires the permanent dedication in the form of a conservation eastment of 5.94 acres in Tract E of Harbor Course South, Section 3 ( Ocean Reef Plat 18) to provide perpetual protection for the habitat for the species listed in the Proposed Permit. The exact provisions of this conservation easement are not speficified in the Proposed Permit and were not established in this proceeding. The Permit also requires specific habitat enhancement of Tract E by planting torchwood seedlings as a means to attract Schaus' swallowtail butterflies in the area of an old service road on Tract E, revegetation in accordance with specific planting instructions of another road that bisects Tract E and the placement of ten piles of rocks and logs of at least four cubic yards each in the old roadway. A ten thousand dollar surety bond or letter of credit is required to ensure compliance with the planting and debris placement provisions within three years of the date of the issuance of the permit. The Intervenors had intended to subdivide Tract E into ten additional lots to be sold as homesites. While Petitioner contends that the development of lots in Tract E may have been prohibited because of the high quality hammock on some of these lots, the evidence established that most, if not all, of the lots in Tract E will be sold and developed as individual homesites if the area is not set aside as a conservation area pursuant to the terms of the Proposed Permit. The establishment of a conservation area in Tract E will help preserve a continuous habitat area for the endangered species. Tract E is adjacent to a large track of property that has been or is in the process of being acquired by the state for conservation purposes. By requiring the Intervenors to provide rubble and debris piles and revegetation on Tract E, the Proposed Permit will further enhance the quality of the habitat in this area. The Proposed Permit requires the existing dirt road which currently cuts through Tract E to be closed and revegetated. There is no requirement that the fill installed for the road bed be removed. While Petitioners contend that such a condition is necessary for the development of this tract into high quality habitat for the endangered species, the natural regeneration of the hammock will be enhanced by the revegetation plan and this area will ultimately develop into high quality habitat. Planting torchwood in the area of Tract E, which is close to the golf course and areas that will be developed, may actually harm the survival potential of the Schaus' swallowtail butterfly. The butterflies are extremely susceptible to chemical insecticides. Planting torchwood in areas where insecticides will be used may create an attractive nuisance to the butterflies. Therefore, the requirement for planting should be moved to an off-site area that is remote from the development to guard against this problem. The area of the old service road should be revegetated pursuant to a schedule similar to the one used for the other revegetation area. Off-site mitigation is to be provided through the enhancement of hammock succession on five, one acre segments of the right-of-way of Old State Road 905 or an alternative similar site approved by the Commission with an area of enhancement to equal five acres. The amount of off-site mitigation was baseed upon a calculation of the amount of road surface in Harbor Course South. The Proposed Permit requires the old road bed and asphalt to be removed and the road restored to original grade. The enhancement of the site is to be accomplished by planting tropical hardwood vegetation from a specified vegetation list, adherence to specific planting instructions governing phase of planting, survival rate and watering conditions, placement of twenty rock and debris piles, (each four cubic yards in volume), removal of exotic plant species semi-annually for a five year period and removal of weedy species of trees and shrubs in an area within a radius of three feet around each planted tree over a similar time period. Four lots in Plat 18 are to be set aside as an assurance against failure to complete the planting or failure to provide an alternative site. A surety bond or letter of credit in the amount of $50,000.00 is also required to ensure compliance with the planting requirements. Old State Road 905 is currently owned by the Florida Department of Transportation. There are plans to convey this right-of-way to Monroe County which in turn plans to abandon the road, remove the road bed and asphalt, and cooperate with the restoration. Thus, it appears that Monroe County may assume responsibility for removing the asphalt road along Old State Road 905. The Proposed Permit requires the Intervenor to ensure that this removal is accomplished. Old State Road 905 is utilized by some utility companies to service their utility lines. At this point, it is not clear whether the utility easements will preclude the revegetation required by the Proposed Permit from becoming effective. The Proposed Permit provides adequate procedures for selecting alternative sites in the event that Old State Road 905 can not be effectively used for a mitigation area. With respect to both the on-site and off-site mitigation, the revegatation requirements in the Proposed Permit are reasonably related to the Commission's goal of enhancing the long term survival of woodrats and cotton mice on North Key Largo. While the diversity of the flora in a natural hammock is greater than that called for in the proposed mitigation, the revegetation will accelerate the development of the mitigation areas into high quality habitat for the endangered species. While a hardwood hammock has a natural capability to regenerate on its own, the regeneration can be enhanced by planting trees in a scarified area. The revegetation required pursuant to the Proposed Permit will be placed mainly in corridors replacing old road ways. This placement will hasten the redevelopment of these areas into high quality habitat. The Intervenors are required to ensure a two year, seventy five percent survival rate for trees planted. Any trees that die are to be replaced by the species with the highest survival rate. The evidence established that the most effective way to enhance the revegetation process is to plant those species of trees that are slow to seed or that are relatively rare. It is not clear whether the planting schedule and sucession procedures attached to the Proposed Permit have taken this fact into consideration. While the diversity of species detailed in the attachments to the Proposed Permit could be reallocated between species to further enhance the revegetation process, the proposed schedules are adequate except for the requirement of planting torchwood on Tract E. Torchwood is an important habitat and food source for Schaus' swallowtail butterflies and should not be placed in an area where chemical insect control efforts are likely. As indicated above, the Proposed Permit requires a survival rate of 75% for the planted trees within two years of the initial planting. The Intervenors are also required to inspect the revegetation sites semi-annually for five years and to remove invasive exotic plants. In addition, Intervenors are required to remove weeding trees, shrubs and vines within a radius of 3 feet around each planted tree for a period of five years. Semiannual reports must be filed with the Commission for the first five years after planting to advise as to the presence of such species. There are no enforcement mechanisms in the Proposed Permit to ensure that the monotoring and removal of exotic species requirements will be completed. The bond requirements of the Proposed Permit only apply to the plantings and installation of debris piles. The requirement for removal of exotic species will help ensure that those exotic species cannot invade the mitigation sites and prevent or retard the natural hammock regeneration process. This requirement will enhance the development of a high quality hammock which will hopefully provide habitat for the endangered species. It is important that an enforcement mechanism be provided in the permit with respect to this requirement. The State Department of Natural Resources has a program for the removal of exotic plants from state lands. DNR is currently preparing a major management plan for North Key Largo and DNR employees are currently involved in removing exotic species from the right-of-way of Old State Road 905. The requirements of the Proposed Permit will augment the on-going efforts of DNR and free-up resources to focus on the removal of exotic species in neighboring areas. The Proposed Permit does not impose qualifications on the individuals who will be responsible for removing the exotic species. The permit should require the Intervenors to retain qualified people to identify the exotic species. The spacing, watering and survival rate aspects of the revegetation plan were based, in part, upon the experiences with revegetation at a previous mitigation site (the Budd Post site discussed below) and represent a reasonable effort for enhancing the revegetation of the hammock. While there is no requirement that the planted trees survive longer than two years after the initial planting, the 75% survival requirement during the first two years provides reasonable assurance that the revegetation will be done properly and with a high probability of success. General Condition 1 of the Proposed Permit indicates that the Commission will review the Permit periodically and "may initiate enforcement or revocation action for any violation of the Permit Conditions by the Permittee, its agents, its employees, or representatives." There is no provision for enforcement or revocation of the permit for violations of the permit conditions by purchasers of lots or other third parties who obtain title to the property from the Intervenors. This enforcement mechanism will become essentially obsolete if and when the Intervenors transfer their interests in the property. General Condition 2 of the Proposed Permit indicates that the Permit is valid "only for the specific processes and operations applied for and indicated in the approved drawings or exhibits." This provision is meaningless since there are no "specific processing operations applied for" and there have been no approved drawings or exhibits other than the planting schedules which are part of the revegetation aspect of the mitigation requirements. There are certain provisions of the Proposed Permit which are vague and/or ambiguous. Special Conditions 4(b) indicates that the requirements of Specific Condition 3(j) are applicable to the restoration of Tract E. Special Condition 3(j) requires the placement of twenty debris piles. However, Specific Condition 4(c) only requires a placement of ten such piles in Tract E. This ambiguity should be clarified. Special Condition 4(d) indicates that there are utility lines in the revegetation area which will have to be maintained. Under this provision, the applicant is allowed to maintain, using hand tools only, a clear path of up to eight feet wide over each utility line. It is not clear from the evidence presented how many utility lines are involved and whether a separate eight foot area can be cleared for each utility line. If several separate utility lines are involved, this provision could effectively prevent the regeneration of the area into high quality hammock habitat. Free ranging domestic pets, especially cats, are a significant threat to the endangered species. One of the conditions imposed by the Proposed Permit would prohibit free ranging pets within the subdivision pursuant to a subdivision covenant to run with the land. The specific wording of such a covenant has not been provided. The Proposed Permit does not provide for any enforcement mechanism with respect to this covenant. Some enforcement mechanism must be provided in order for this condition to provide any effective protection for the endangered species. The Proposed Permit requires the Intervenors to hold four lots from sale until the off-site mitigation requirements have been met. If the planting is not accomplished within a five year period, the Intervenors are required to include these four lots as part of the conservation easement in Tract E. The lots being withheld for sale have an average market value in excess of $120,000 per lot. Thus, this requirement places a major incentive on the Intervenors to comply with the terms of the Proposed Permit. However, it is not clear whether this enforcement mechanism can be applied to the provisions of the Proposed Permit regarding the removal of exotic species. The Proposed Permit does not allow the Intervenors to kill any member of the endangered species. The Proposed Permit does allow the "incidental taking" of the threatened species (Eastern Indigo snake). The term "incidental taking" is interpreted by the Comimssion to include the killing of a member of the threatened species which is incidental to the conduct of otherwise lawful activities. The Commission contends that it has the jurisdiction to issue such an "incidental take" permit for an endangered species under appropriate conditions and mitigation requirements. The Commission did not believe an incidental take permit was necessary with respect to the endangered species on this site because the Commission felt that the habitat quality was relatively low and the likelihood of encountering a member of the species at the site was also low. The evidence established that there is a possibility that some members of the endangered species, i.e., woodrats and cotton mice, will be killed during the development and building of the subdivision. While this possibility is speculative, the chances of such a killing can be minimized by incorporating further protections in the permit. The evidence did not indicate any likelihood that East Indigo snakes or Schaus' swallowtail butterflies will be killed incidental to land clearing and/or development of Harbor Course South. The U.S.F.W.S. requires a habitat conservation plan ("H.C.P.") before it will issue an incidental take permit. A habitat conservation plan committee was established by the Governor in 1985 to prepare an H.C.P. for the North Key Largo area. The goal of the Committee is to designate areas which would be suitable for development and areas which may be necessary for conservation. A Draft Habitat Conservation Plan has been prepared, but it has not yet been officially approved. Harbor Course South is outside the study area of the Draft Habitat Conservation Plan and therefore is not proposed as a conservation area. The framework and structure of the Proposed Permit reflects the Commission's desire to apply a comprehensive permitting approach to the Harbor Course South development rather than rely upon a lot-by-lot determination of jurisdiction with each individual lot purchaser at the time clearing or development activities are sought. The evidence established that there is insufficient indicia of woodrat or cotton mouse presence on a number of the lots in Harbor Course South. Thus, if a lot-by-lot approach was used, the Commission would not have the authority under its current rules to require a number of the individual lot owners to obtain a permit before land clearing. Without question, further fragmentation of the hammock will reduce the quality of the habitat for the endangered species. If a lot-by-lot permitting process is utilized, the owners of the lots that do not show any signs of the presence of woodrats or cotton mice would be able to clear to the maximum extent allowable under the Monroe County development ordinances. Such an approach would not halt the further fragmentation of hammock. By utilizing a comprehensive permit, the Commission can establish uniform standards for development and require stronger mitigative measures to offset the impact of development in the area on the endangered and threatened species. The approach is further justified in view of the Commission's determination that the Harbor Course South property is of only minimal importance as a habitat for the endangered and threatened species. See, Findings of Fact 80-81 below. In sum, land development and land clearing activities are likely to take place on the Harbor Course South property regardless of whether the Proposed Permit is issued. If the Commission utilizes a lot-by-lot determination of jurisdiction, a large portion of the lots on Harbor Course South would not be required to obtain a permit from the Commission because many of those lots do not have nests or any indication of the presence of the endangered species. Under these circumstances, the Commission would probably not be able to obtain comprehensive mitigation conditions and the habitat for the endangered species would be further fragmented with little or no mitigation. As noted above, the Commission has not adopted any rules setting forth its policies and procedures for issuing an overall blanket permit for the "incidental taking" of endangered species. Similarly, there are no formal guidelines adopted to establish when the Commission has jurisdiction over land- clearing activities. In determining whether to assert jurisdiction over a particular piece of property, the Commission looks for evidence of existing nests or habitat of an endangered species or the probability that a taking, killing or some other molestation will occur to a particular member of the species. In connection with the Proposed Permit, the Commission determined that it had the authority under Rule 39-27.002, Florida Administrative Code, to issue permits for clearing and development activities that molest the nests of endangered species. As discussed below, the Commission has issued only one prior permit for land clearing and development activities. That prior permit is was not timely challenged. No rules or standards have been promulgated by the Commission to set forth the mitigative requirements that can be imposed, if any, upon individual lot purchasers. An important factor in the Commission's decision to issue the Proposed Permit in this case was the Commission's determination that the overall quality of the Harbor Course South property as habitat for the endangered species was minimal. In determining that the Harbor Course South property was of minimal importance to the survival of the endangered species, the Commission took into consideration various reports on the sparse density of the population of the endangered species on the subject property. The Commission also took into account what it deemed to be inevitable future development as reflected in the Vested Rights Determination, the fact that the site was not designated for preservation in the Draft Habitat Conservation Plan, and the fact that the site was not part of the North Key Largo CARL acquisition project. Finally, the Commission considered that the site was already a highly fragmented tropical hardwood hammock as demonstrated by Landsat Thematic Mapper Classfied Satellite Imagery. The only previous instance in which the Commission has issued a permit to molest or harm the nests or habitat of endangered species pursuant to land clearing or development activities involved another residential sub-division in North Key Largo. In June of 1986, separate permits were issued by the U.S.F.W.S. and the Commission to the Nichols/Post Hendrix Corporation to destroy nests and habitat of the Key Largo woodrat and Key Largo cotton mouse. (The permit issued by the Commission in connection with this prior project will be referred to as the "Budd Post Permit.") The property covered by the Budd Post Permit is south of Harbor Course South. It lies approximately six miles south of the intersection of Old State Road 905 and Card Sound Road. That property consists of approximately ten acres of high quality hardwood hammock located within the project area of the North Key Largo Hammocks, CARL land acquisition program. Thus, the property was essentially surrounded by high quality tropical hardwood hammock. The Budd Post property is similar to the Harbor Course South property in that both areas run from County Road 905 east to the ocean and both tracts contain habitat suitable for use by endangered species. However, Harbor Course South is a lesser quality habitat than the Budd Post property because it is more highly fragmented and is bordered on the north by the highly developed Ocean Reef property. Overall, there was a significantly greater indication of the presence of the subject endangered species on the Budd Post Property than there is at Harbor Course South. The Budd Post Permit was the first of its kind issued by the Commission and was processed simultaneously and concurrently with the comparable federal permit from the U.S.F.W.S. As a condition to issuance of the Budd Post Permit, the Commission required the permittee to set aside a preservation area, build debris piles to encourage nesting of woodrats and cotton mice and plant vegetation off-site to mitigate the loss of hammock habitat. A condition of the Budd Post Permit required the permittee to trap and remove the endangered species during land clearing activities. A similar condition in the Proposed Permit would help reduce the likelihood of any killing of the endangered species. The results of the mitigation plan for the Budd Post Permit indicate that such a plan can serve to enhance the survivability of the endangered species by providing high quality habitat and accelerating the revegetation of scarified areas. A little more than two years after the mitigation plan for the Budd Post Permit was implemented, it appears that the efforts are achieving their intended results. Specifically, the plants that were planted as a result of the revegetation plan are flourishing and at least some of the debris piles have been colonized by woodrats. Thus, it appears a viable habitat has been created. There is no definitive method for determining the density of population of woodrats or cotton mice at a given site. In making its jurisdictional determination with respect to the Budd Post property, the Commission looked for the presence of stick nests, (which are widely presumed to be constructed by woodrats) as the primary jurisdictional indicator. Subsequent to the issuance of the Budd Post Permit, the Commission has recognized that stick nests are not the sole indicators of the presence of wood rats and the Commission now considers other factors as well. The U.S.F.W.S. requires a trapping study of woodrats and cotton mice as part of its permit application. The permittee for the Budd Post Permit provided the U.S.F.W.S. and the Commission with a "trapping report" prepared by Dr. Stout. The Intervenors also hired Dr. Jack Stout, who is a biologist and professor at the University of Central Florida, and a similar report was prepared for Harbor Course South. The same methodology was used to trap woodrats and cotton mice on both sites. Dr. Stout concluded that the Harbor Course South property had a low density population of woodrats and cotton mice. Dr. Earl Rich, a biologist and ecologist and a former professor at the University of Miami with extensive experience researching woodrat habitat on North Key Largo, also inspected the Harbor Course South property on behalf of the Intervenors. His inspection took place after the date of the Proposed Permit. He determined that the overall quality of the subject property as habitat for the endangered species was low because of the fragmented and uneven quality of the hammock. These qualities are largely attributed to the existing intrastructure and the golf course which winds throughout the subject property. Julie Hovis, a wild life biologist employed by the Commission, performed a site inspection report in connection with the application for the Proposed Permit. While not an expert on the endangered species, she was qualified to identify certain signs of the presence of the species. She found that there was some evidence that woodrats and cotton mice were present on the Harbor Course South property. She noted that the quality of the habitat varies greatly. Her inspection and conclusions were the basis for the Commission's assertion of jurisdiction over the subject site. Dr. Steven Humphrey and Dr. Numi Goodyear inspected the area on behalf of the Petitioners to determine the presence and/or density of the endangered species populations. While their studies find more evidence of the presence of wood rats and cotton mice on the subject property than the prior studies had indicated, they also conclude that the property is a mixed quality habitat for the endangered species. While there are some areas that appear to be high quality habitat, these experts recognize the fragmented character of the habitat and the effect of the golf course in disrupting the habitat and producing "islands of vegetation." The Goodyear and Humphrey studies confirm that the densities of the endangered species are lowest in areas where the hammock is highly fragmented. The Goodyear and Humphrey studies do not refute the Commission's conclusion that a significant number of the lots of Harbor Course South do not reflect sufficient indicia of the presence of the endangered species to allow the Commission to assert jurisdiction on all the property if a lot-by-lot permitting process was utilized. The Commission has concluded that the continuing development of Harbor Course South is inevitable. The Commission has also concluded that its authority over clearing of individual homesites is limited. In view of these conclusions, the Commission has attempted to enhance the survivability of the endangered species by imposing certain mitigation requirements on the Intervenors. The evidence has established that, assuming the development of Harbor Course South is inevitable, and the Commission lacks the authority to halt the development of Harbor Course South, the Commission's comprehensive approach to permitting will be more favorable to the survival potential of the endangered species than a lot-by-lot jurisdictional determination would be.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Game and Fresh Water Fish Commission enter a Final Order setting forth the terms and conditions for an Agreement with the Intervenors for a specific period of time as set forth in Paragraph 30 of Conclusions of Law, whereby permits will be issued for the incidental destruction and/or molestation of the nests and habitat of the subject endangered species in accordance with the terms and conditions of the Proposed Permit as modified in accordance with the provisions of Paragraph 32 of the Conclusions of Law above. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of October, 1990. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990.
The Issue Whether the Respondent operated as a salesperson without being the holder of a valid and current license as a real estate salesperson, in violation of Section 475.42(1)(a), Florida Statutes, and therefore in violation of Section 475.25(1)(e), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. The Respondent is and was at all times material hereto a licensed real estate salesperson in the State of Florida having been issued license number 0475436 in accordance with Chapter 475, Florida Statutes. The last license was issued to Respondent as a salesperson c/o Dolphin Realty Referral Inc., 2525 Pasadena Avenue, Suite L., South Pasadena, Florida 33707. On December 18, 1996, Respondent presented a written offer to listing agent Sharon Simms for property located at 3900 48th Avenue, South, St. Petersburg, Florida. In connection therewith, Respondent, who was the building contractor for buyer Joseph S. Sparra, accepted a $2,000 deposit which was placed in the escrow account of Dolphin Realty Referral Inc., of which Thomas J. Hassel was qualifying broker. Hassel drafted the contract and qualified Joseph S. Sparra with Sigmund Financial for a first mortgage. The Respondent was employed by Hassel as an independent contractor. Thomas Hassel, the Respondent's employing broker, advised him that he was not sure Respondent's license was active, but the Respondent made no attempt to contact the Petitioner to ascertain his licensure status. On January 24, 1997, the Respondent accompanied Joseph S. Sparra to the closing at Anclote Title Services, where the Respondent provided the escrow money and accepted a $5,780 commission check on behalf of Dolphin Realty Referral, Inc. During the entire transaction, Respondent was not properly licensed with Dolphin Realty Referral, Inc., nor with any other real estate brokerage. Respondent's license was involuntarily placed on inactive status from January 1, 1996, through July 20, 1997, due to no employing broker. Hassel later advised Respondent that his license was not transferred to the new corporation when the broker changed its name from Dolphin Realty of Pinellas County to Dolphin Realty Referrals, Inc. The Respondent did not accept a share of the commission on the house in St. Petersburg, Florida. Respondent did not participate as a real estate salesperson in any other transaction while his license was on inactive status.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: The Florida Real Estate Commission issue a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(a) and (e), Florida Statutes, as charged in the Administrative Complaint; and, Impose an administrative fine of $500 and require Respondent to complete a 45-hour salesperson's post-licensure course, as prescribed by the Florida Real Estate Commission. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Steven W. Johnson, Senior Attorney Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802 John A. Kitzmiller, pro se 2613 59th Street, South St. Petersburg, Florida 33707 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
