The Issue Whether Mr. Wareh's business qualifies for certification as a disadvantaged business enterprise?
Findings Of Fact Mr. Wareh was born Mohammad Faiz Wareh in Damascus, Syria. He is now a citizen and permanent resident of the United States. Mr. Wareh is the president and majority owner of Wareh Construction Company, which is located in Jacksonville, Florida. Mr. Wareh owns 51% of the stock of Wareh Construction Company and his wife owns the remaining 49%. Wareh Construction Company is located in Jacksonville, Florida. From September 20, 1983 to September 20, 1984, Wareh Construction Company was certified by the Department as a minority business enterprise under Rule 14-78, Florida Administrative Code, as it existed at that time. Mr. Wareh was recognized as an Asian American for this classification. The certification of Wareh Construction Company as a minority business enterprise in September, 1983, was for 1 year. This certification expired in September, 1984, because Mr. Wareh did not reapply for certification in 1984. On or about May 28, 1987, Mr. Wareh mailed a Florida Department of Transportation D/WBE Certification and Recertification Schedule A to the Department seeking certification as a disadvantaged business enterprise. By letter dated June 16, 1987, the Department denied the application for certification as a disadvantaged business enterprise filed by Mr. Wareh. The Department based its denial upon its conclusion that the requirements of Rule 14-78.05(3)(b)1, Florida Administrative Code, had not been met. Mr. Wareh has not applied to the Small Business Administration for certification as a socially and disadvantaged individual.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Wareh Construction Company for certification by the Department as a disadvantaged business enterprise be denied. DONE and ENTERED this 4th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2878 The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 2. Hereby accepted. 3 4. 5 and 6. 7 and 8. Primarily conclusions of law. To the extent that facts are included in this proposed paragraph, they are hereby accepted. Conclusion of Law. 8-9 Irrelevant. 10 9. Irrelevant. Conclusion of law. COPIES FURNISHED: Fred Wares Wareh Construction Company 6048 Chester Circle Jacksonville, Florida 32217 Judy Rice Senior Attorney Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner, M.D. 58 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458
The Issue The issues are (1) whether the St. Johns River Water Management District (District) should approve the application of Indian River County (County) for an environmental resource permit (ERP) authorizing the construction and operation of a surface water management system with stormwater treatment for the Oslo Road Boat Ramp Parking Lot; and (2) whether the District should approve the County's request for a variance from Florida Administrative Code Rule 40C-4.302(1)(c) and sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) of the Applicant's Handbook: Management and Storage of Surface Waters (AH) in order to perform other related work.
Findings Of Fact The Parties The Pelican Island Audubon Society is a Florida non- profit corporation whose mission is to preserve and protect the animals, plants, and natural communities in the County through advocacy, education, and public awareness. It has more than 25 members that live in the County and has been a chapter of the Audubon Society of Florida since 1964. Dr. Richard Baker resides in the County and engages in water-based recreational activities such as canoeing, bird watching, nature photography, and fishing in the Lagoon near the boat ramp. Dr. David Cox resides in the County and engages in water-based activities such as kayaking and nature observation in the vicinity of the boat ramp. The County is the applicant for an ERP and variance for a project known as the Oslo Road Boat Ramp project. The District is the agency charged with the responsibility of regulating water resources within its geographic boundaries and to administer and enforce chapter 373, Florida Statutes, and the rules promulgated under title 40C. The Existing Oslo Road, Boat Ramp, and Lagoon Oslo Road is a County-owned road that runs in an east- west direction and intersects with U.S. Highway 1 just south of State Road 60. To the east of U.S. Highway 1, the road is paved for a short distance; the remaining portion of the road (2,460 feet) is a narrow, two-lane dirt road that dead-ends at the boat ramp. Most of the dirt road is bordered to the north and south by a mangrove swamp that extends to the edges of the road. All wetlands have been previously disturbed. The surrounding and abutting jurisdictional wetlands consist primarily of both tidal (north side) and impounded/partially tidal mangrove swamp (south side), which was created years ago by a mosquito control district in order to reduce the salt marsh mosquito population. The boat ramp is bordered to the north by a clump of red mangroves and a sparsely vegetated sandy shoreline and to the south by a dense mangrove fringe. During rain events, the dirt and sediment can wash off the road as erosion. This requires the County to continually maintain the dirt road by grading and adding marl material to bring it back up to grade. The boat ramp has been in existence for more than 50 years and is the nearest public access to the popular South County fishing areas in the Lagoon. Although there are 17 other boat ramps in the County, the closest one is six miles to the north in the City of Vero Beach. The typical users of the boat ramp are fishermen with shallow-draft boats, while the open shoreline to the north is normally used to launch canoes and kayaks and to access the river by wading fishermen. There are a number of water-based communities in the area, including one directly to the east of the boat ramp. Many boats that do not launch at the boat ramp use the nearby seagrass beds as a fishing destination. The boat ramp has a dirt cul-de-sac, a concrete boat ramp with finger piers, and is surrounded by the Lagoon, the receiving water body for the project and classified as Class III waters. In December 2007, the Department of Environmental Protection (DEP) verified that the Lagoon is an Impaired Water Body of the State, with the impairment being for nutrients in the vicinity of the project. Currently, there are no designated parking areas associated with the boat ramp. Vehicles both with and without trailers park in the cul-de-sac and along the roadside. The only limit to the extent of parking along Oslo Road is the distance somebody is willing to walk. During peak times, the dirt road and cul-de-sac become congested and blocked with cars, trucks, and boat trailers. In 1977, the County obtained a permit from the United States Army Corps of Engineers (USACE) to construct the boat ramp with two appurtenant piers and a riprap groin. During the subsequent years, there was substantial deterioration to the ramp, bulkhead, and docks. Accordingly, in 2009, using an exemption under rule 40C-4.051(12)(i), the County replaced the concrete portion of the boat ramp within the same footprint and constructed two accessory docks that now define the width of the one-lane boat ramp. During this process, the County removed around 25 cubic yards of muck from the base of the boat ramp. The boat ramp is only 16 feet wide and 40 feet in length and is located in water less than three feet below Mean Low Water (MLW). In contrast, a typical boat ramp in the County is around 76 feet, or twice as long as the Oslo Road boat ramp. The existing boat ramp was designed to be used by motorized vessels. There is a separate launch area for kayak and canoes next to the concrete ramp. The motorized vessels that currently use the boat ramp are small with a draft less than 18 inches. This is partly due to the presence of cap rock beyond the proposed dredging area, which limits the draft size of the boats, and the small size of the single-lane ramp. The only signage at the ramp advises the public that this is a shallow draft vessel launch and that the limits of the draft are 18 inches. The channel leading out of the boat ramp was previously dredged around 1950. During that era, only shallow draft boats would launch at Oslo Road. In February 1977, the United States Fish and Wildlife Service confirmed that an old channel about 75 feet long and 15 feet wide existed at the boat ramp location. In May 1977, additional maintenance dredging of the old silted channel to a depth of -3.00 Mean Sea Level (MSL) was authorized by the USACE. Although the parties disagree over whether any dredging was ever performed, surveys, aerial photographs, and research suggest that more than likely the project site was dredged in the late 1970s or early 1980s. A portion of the area that the County proposes to dredge falls within the area that was previously permitted by the USACE in 1977. The distance from the boat ramp to the Intracoastal Waterway (ICW) is approximately one-half mile. The channel is delineated by a number of poly vinyl chloride pipes and six sets of permitted navigational channel markers leading to the ICW. The water depths in the area surrounding the boat ramp, including the channel to the ICW, are very shallow. Drainage from the road currently runs down the ramp causing sand and other material to build up in the ramp area. Due primarily to this drainage, at low tide the water at the boat ramp area has been so shallow that boaters have experienced great difficulty when loading; in some cases, launching or retrieving a vessel is almost impossible. After a rain event, turbidity plumes in the Lagoon have been observed extending 100 feet to the north of Oslo Road, 150 feet to the south, and approximately 30 feet to the east. The seagrass beds adjacent to the boat ramp were described as lush, healthy, and productive. The proposed dredging area contains less than 1.5 percent of seagrass coverage. There is no evidence that the current use of the boat ramp causes prop scarring to the surrounding seagrass. The Lagoon in the vicinity of the boat ramp has been determined to be a high manatee use area, as defined by the County Manatee Protection Plan (MPP). However, this area is not a high watercraft-related manatee mortality area. Since 2002, the waterway in the vicinity of the project site has been regulated by seasonal manatee protection speed zones. Signs have been posted since 2003. The shoreline to the ICW is currently regulated at slow speed between November 1 and April 30 and is unregulated the remainder of the year. The County intends, however, to adopt a new ordinance that makes the slow speed zone effective the entire year, rather than just during the winter months. The Project and Variance In late 2009, the County submitted to the District its ERP application. Since that time, the County has modified its plans seven times and amended the application twice. Notably, the modifications reduce the direct impacts to wetlands from 2.98 acres to 1.41 acres for the improvement of the dirt road and parking lot; they also reduce impacts to ditches that support fisheries habitat and submerged lands. They will result in 0.113 acres of combined direct impacts to seagrass and Lagoon substrate from the proposed dredging. The project will not change the hydroperiod of the surrounding wetlands. The number of trailer parking spaces was reduced from 32 to 12 and the parking space angle changed. A dry retention area on the west side of the project will be installed; a wet detention pond was eliminated; the dock extension reduced; and at Petitioners' request, the project was shifted north to avoid impacting a ditch to the south. The County eliminated and reduced impacts to surface waters by reducing the width of the proposed dredge area so as to not impact seagrass beds to the north and south of the channel. Dredging is limited to a depth of -2.5 feet MLW and will be within the same area that was dredged in the 1950s. It is not expected to contribute to larger vessels launching at the boat ramp. The latest iteration of the project consists of paving the 2,460 feet of dirt road to a width of 26 feet, constructing a surface water management system, and constructing a parking area to accommodate 12 vehicles with boat trailers and 11 vehicles without a trailer. No changes to the size or configuration of the concrete boat ramp will be made. The project will extend the northern accessory dock of the existing one-lane boat ramp by approximately 32 feet to allow more boats to tie off; dredge 4,943 square feet (0.113 acres) of the ingress/egress access way within the Lagoon to a depth of -2.5 MLW; install an additional three sets of channel markers (six in total); install "No Parking" signs to limit vehicle parking to the designated parking area; and install additional signage to warn boaters of the shallow depths in the area and to notify boaters that to launch at this boat ramp, vessel drafts must not exceed 18 inches. The proposed surface water management system consists of roadside conveyance swales, pipes, weirs, and two dry retention areas which will provide water quality treatment for stormwater runoff from basins upstream of the project area and the existing paved portion of Oslo Road. The two proposed dry retention areas will provide water quality treatment in accordance with the design and performance criteria in the District's rules. Currently, these areas drain into existing swales and then east into the Lagoon with no water quality treatment. The system will result in a net improvement to water quality based on a nutrient loading analysis review by the District. The County is proposing off-site mitigation to offset the direct and secondary impacts. It consists of 18 acres of enhancement at Earman Island within the Lost Tree Islands Conservation Area, including 14 acres of wetland enhancement. Earman Island is part of the chain of islands in the Lagoon just north of State Road 60 known as Lost Tree Islands purchased by the County for conservation purposes. The proposed enhancement area is building upon an existing mitigation area on the north end of the island. The proposed mitigation is within the same drainage basin as the area of wetlands and other surface waters to be adversely affected. There are no cumulative impacts associated with the project. The County owns all of the property that will be dredged, filled, or paved, including the submerged lands waterward of the Mean High Water (MHW) line at the boat ramp out approximately 215 feet. This area is not within an Aquatic Preserve or Outstanding Florida Waters, and none of the dredging will occur on sovereign submerged lands. See Jt. Pre-hearing Stip., p. 13, ¶¶ 18-20. In summary, the purpose of the project is seven-fold: provide water quality treatment for the runoff water; limit the number of parking spaces available for users of the boat ramp; decrease the need for the County to maintain the 2,460 feet of dirt road; create a safe place for boaters to moor while waiting to retrieve their boats from the Lagoon; allow boaters to safely launch and retrieve their boats from the Lagoon at low tide; create a clear channel for boaters to get from the base of the boat ramp to the ICW; and decrease turbidity in and around the mouth of the boat ramp. The portion of the project that expands the accessory dock and dredges the channel will be located in Class III waters classified by DEP as restricted for shellfish harvesting. Rule 40C-4.302(1)(c) places additional requirements on regulated activities that are proposed in Class III waters restricted for shellfish harvesting. These requirements are set forth in the AH. Without a variance from the rule and AH, the District would be required to deny the ERP. Therefore, the County must qualify for and obtain a variance from rule 40C- 4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c). Petitioners' Concerns The essence of Petitioners' objections is that once Oslo Road and the parking lot are paved, and the channel dredged, the boat ramp will attract a tremendous number of fishermen from throughout the area who will use larger and deeper draft boats to access the Lagoon. Petitioners contend that more and larger boats, along with the proposed activities, will result in the environmental impacts described in their Amended Petition. The conditions for issuance of an ERP are set forth in rules 40C-4.301 and 40C-4.302. The standards and criteria in the AH are used to determine whether an applicant has met the conditions for issuance in the two rules. Rule 40C-1.1002 establishes the requirements for obtaining a variance. The parties have stipulated that the project either complies with the following conditions for issuance of a permit or that they are not applicable: rules 40C-4.301(1)(a), (b), (c), (e), (g), (h), (i), (j), and (k); and 40C-4.302(1)(a)3., 5., and 6. Remaining at issue is whether reasonable assurance has been provided to demonstrate that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters (40C-4.301(1)(d)); that the proposed activities will not cause adverse secondary impacts (40C-4.301(1)(f)); and that the portion of the project located in wetlands or the Lagoon is not contrary to the public interest (rules 40C-4.302(1)(a)1., 2., 4., and 7. and 40C-4.302(1)(b)). As a part of these claims, Petitioners also contend that the County failed to implement all practicable design modifications to reduce or eliminate the adverse impacts to wetland and surface water functions; the proposed mitigation fails to offset the adverse effects of the project; and the District did not consider the impacts of increased boat usage when reviewing secondary impacts generated by the project. Finally, Petitioners contend that the County has not shown that it meets the conditions in rule 40C-1.1002 for a variance. These contentions are addressed separately below. a. Rule 40C-4.301(1)(d) Pursuant to this rule, and related AH provisions, the County must give reasonable assurance that the proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. To meet this requirement, the County has implemented, to the extent practicable, design modifications to reduce or eliminate adverse impacts to wetlands and other surface waters. The original application submitted in 2009 proposed impacts to 2.98 acres of wetlands and surface waters. Since that time, the County has reduced or eliminated its proposed wetland impacts by more than 50 percent. This was done by incorporating design modifications that eliminated the construction of a stormwater pond in wetlands and adding compensating stormwater treatment; shifting impacts out of critical fisheries and open water habitat within the southern impoundment to upland areas; installing a retaining wall along the trailer parking area to limit the fill slope impacts; and making minor modifications to reduce the project footprint in several locations. The County also eliminated and reduced adverse impacts to surface waters by reducing the width of the proposed dredge area so as to not impact the seagrass beds to the north and south of the channel and limiting the dredging to -2.5 MLW. That depth is consistent with the existing limitations adjacent to the dredge area and will not allow deeper draft vessels to use the boat ramp. The addition of a permit condition that requires the placement of "No Parking" signs along Oslo Road and limiting the parking of boat trailers to the 12 designated parking spaces will prevent an increase in boat traffic from the existing boat ramp. The installation of signage at the boat ramp advising boaters of the boat motor draft restriction and the year-round manatee slow speed zone will also reduce impacts. Finally, three sets of channel markers will also be installed to keep boaters within the designated channel. As discussed below, after these design modifications are implemented, the remaining impacts are sufficiently offset by mitigation proposed by the County. The District also considered the condition of the wetlands and surface waters to be impacted; their hydrologic connection; their uniqueness; location; and fish and wildlife utilization, and then evaluated the proposed mitigation. The more persuasive evidence supports a finding that the mitigation is sufficient to offset the proposed impacts. As required by the AH, the District provided a copy of the County's application to the Florida Fish and Wildlife Conservation Commission (FFWCC). Among other things, the FFWCC is the agency responsible for reviewing the County's MPP. The FFWCC indicated that the project is consistent with the County's MPP. It also recommended certain measures to be taken by the County, which are now included as conditions in the proposed permit. Petitioners assert that the National Marine Fisheries Service, a federal agency, considers the entire Lagoon, and the ditches extending into it, to be an essential fish habitat (EFH) that provides habitat required for the various life cycles of many types of fish. Petitioners contend that the project will result in impacts to the EFH adjacent to the proposed dredging areas, and that this type of impact cannot be mitigated. For the following reasons, this contention is rejected. First, the more persuasive evidence is that the area to be dredged contains less than 1.5 percent seagrass coverage, and channel markers will be used to keep boaters within the designated channels. Only around 200 square feet (0.005 acres) of seagrass will be affected, and not the much larger area that Petitioners assert will be impacted. No other impacts to seagrass are expected to result from the project, other than those identified and mitigated for during the application review. Second, the District considered the actual Lagoon impact area and determined that the same functions now being provided in that area will be provided by the proposed mitigation. Third, if one accepts Petitioners' assertion that EFH can never be mitigated, no permit could ever be issued for any project that would impact the Lagoon or any ditches connecting to it. Finally, based on the District's Uniform Mitigation Assessment Method (UMAM) evaluation, the functional loss, including direct and secondary impacts, was scored at 1.212 while the functional gain was 1.281. See Fla. Admin. Code Ch. 62-345. With 1.5 acres of direct impacts, one acre of secondary impacts, and 18 acres of mitigation, there are approximately 0.07 excess units of functional mitigation. The UMAM review was not credibly refuted. Petitioners failed to prove that the requirements of rule 40C-4.301(1)(d) have not been met. b. Rule 40C-4.301(1)(f) Rule 40C-4.301(1)(f) requires an applicant to provide reasonable assurance that a regulated activity will not cause adverse secondary impacts to the water resources. Petitioners contend that the project will increase the number and size of boats that use the boat ramp and therefore cause secondary impacts to seagrasses, manatees, and water quality. Secondary impacts occur outside the direct footprint of the project but are very closely linked and causally related to the activity to be permitted. De minimis or remotely related secondary impacts are not considered. To assess secondary impacts, the District evaluates the impacts to wetlands and surface water functions; upland habitat for aquatic or wetland dependent species; and historical and archaeological resources. The project will result in 0.86 acres of secondary impacts to the remaining wetlands adjacent to the road paving and parking area and 0.14 acres of secondary impacts associated with sloughing and boat wake-related impacts. The County has proposed mitigation that will adequately offset the expected secondary impacts. In combination with dredging to only -2.5 MLW and reducing parking space for boat trailers, the mitigation will prevent additional secondary impacts. Also, the boat ramp is significantly smaller than the average boat ramp in the County and is designed specifically for small vessels. Thus, the ramp itself limits the size of the vessel that can launch at the site. Through the use of additional channel markers, signage, and a year-round slow speed zone, there should not be an increased threat of boat collisions with manatees, prop scarring of seagrass beds, or turbidity. Also, the removal of the muck from the channel will be beneficial and reduce turbidity in the nearby waters. Petitioners have stipulated that no wetland dependent listed species on site that use uplands for nesting or denning are at issue. There are no additional phases for this project. Speculation of a future interchange at Interstate 95 and Oslo Road, located many miles to the west of the boat ramp, and any impacts that might occur if one was ever built, was not considered under the District's secondary impact rule. Petitioners failed to prove that the requirements of the rule have not been met. c. Rule 40C-4.302 – Public Interest Test The public interest test for this type of project requires that the County provide reasonable assurance that activities to be located in, on, or over wetlands and other surface waters will not be contrary to the public interest, as determined by balancing seven criteria in subparagraphs 1.-7. of the rule. The test takes into account the positive, negative, and neutral effects of the activity. The parties have stipulated that subparagraphs 3. and 6. are not at issue. They govern navigation, shoaling, and erosion, and historical and archaeological resources. The navigation factor is positive and the archaeological resource factor is neutral. Subparagraph 1. requires the District to determine whether the activity will adversely affect the public health, safety, or welfare or the property of others. The more persuasive evidence supports a finding that the activities will not adversely affect the public health, safety, or welfare of the property of others. Presently, it is difficult to launch and load boats at the ramp due to the area being silted down. This can result in serious safety issues. By dredging this area, public safety will be enhanced. The installation of navigational channel markers and signage will also be beneficial to the public health, welfare, and safety, as will the year- round slow speed zone. This factor is positive. Subparagraph 2. requires the District to determine whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The evidence supports a finding that the proposed mitigation is appropriate and more than offsets the proposed impacts. The County eliminated and reduced impacts by more than one-half. The proposed dredging area contains less than 1.5 percent seagrass coverage. The project will not result in adverse impacts to manatee. Finally, the County is proposing 18 acres of mitigation, including the creation of an open water/tidal creek feature which will provide the same functions as the areas being impacted. This factor is positive. Subparagraph 4. requires the District to determine whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The evidence supports a finding that the 18 acres of mitigation will improve marine productivity by providing a substantial amount of both mangrove and salt marsh vegetation along the sides of the tidal creek and open water component of fisheries. Also, the County has eliminated and reduced impacts to seagrasses by limiting the dredging area to an area with less than 1.5 percent seagrass coverage. Finally, it has removed the stormwater system from the southern impoundment to avoid a critical fisheries open water habitat. This factor is positive. Subparagraph 5. requires the District to determine whether the activity will be of a temporary or permanent nature. Because the mitigation offsets the adverse impacts, and the mitigation and dredging areas are both permanent in nature, the temporary or permanent factor is neutral. Subparagraph 7. requires an evaluation of the current condition and relative value of the functions being performed by areas affected by the proposed activity. The current condition and relative functions being performed by the areas affected by the project are high functioning. The evidence shows that the project will not change this high functioning aspect of the area. The District also conducted a UMAM review, which considered the relative value of plant communities, hydrology, and other factors, and demonstrated that the mitigation more than offsets the impacts. Finally, the County established that the mitigation area provides the same functions as the impact areas. Therefore, this factor is positive. The District's determination that the project will not be contrary to the public interest is supported by a preponderance of the evidence. Variance Because a portion of the project will be within Class III waters classified by DEP as restricted for shellfish harvesting, the County must qualify for and obtain a variance. A variance may be granted when an applicant demonstrates that it would suffer a hardship, not self-imposed, if the variance is denied. See Fla. Admin. Code R. 40C-1.1002. In determining whether a variance should be approved, the District balances the social, economic, and environmental impacts on the applicant, the residents of the area, and on the State with those same impacts if the variance is denied. The County has demonstrated that the application of rule 40C-4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) would create a hardship in this case by precluding the construction of the proposed accessory dock extension and the dredging of an existing ingress/egress way within the Lagoon that will improve public safety and enhance recreational opportunities for the citizens of the area. There are no viable alternatives that would address the functionality and safety of the existing boat ramp. The hardship is not self-imposed in that the normal processes of erosion, wind, and tides contribute to the accumulation of sand and muck within the ingress/egress access way, which over time has impeded the process of launching and loading vessels at the boat ramp. The narrow channel is bordered on the north and south by productive seagrass beds. The extension of the accessory dock and dredging of the access channel will expedite the loading process and reduce the need for boat operators to circle in the shallow waters waiting their turn to access the ramp. The environmental impact of the project is positive. There will be no harm to the water quality of Class III waters and the shellfish beds. The Department of Agriculture and Consumer Affairs reviewed the project and concluded that it would not result in a reclassification of shellfish harvesting waters. The stormwater treatment on the uplands will result in a reduction of nutrient loading to the Lagoon, which is now designated by DEP as impaired by nutrients. The extension of the accessory dock, along with making the area a year-round slow speed zone, will reduce potential impacts to manatees. The dredging and extension of the dock will be a convenience to the boating public and may enhance public safety during periods of inclement weather or other exigent circumstances. Petitioners failed to prove that all requirements for a variance have not been met.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the County's applications for an ERP and a variance. DONE AND ENTERED this 5th day of August, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 5th day of August, 2014. COPIES FURNISHED: Hans Tanzler, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608-4922 Karen C. Ferguson, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 William K. DeBraal, Esquire Indian River County Attorney's Office 1801 27th Street Vero Beach, Florida 32960-3388
Findings Of Fact The Florida Department of Transportation is the state agency charged with the responsibility to develop and adopt criteria for a DBE program, and administer the DBE program. Burkett is a Florida corporation whose sole stockholder is a white female American. She meets the criteria of a socially and economically disadvantaged individual. Burkett applied for certification as a DBE on July 12, 1991, and on October 1, 1991, the Department denied Burkett certification. Burkett submitted additional information and made changes in its internal organization to better conform to the Department's requirements; however, the Department has denied Burkett the designation based upon the owner's lack of expertise in the critical areas of the firm's operation, to wit; she does not possess education or experience in engineering. The parties stipulate that Burkett is substantially effected by the rules being challenged, and possesses standing to bring this rule challenge. In determining the qualifications of an applicant for DBE status, the Department utilizes Sections 334.044(2), 337.137, 339.05, and 339.0805, Florida Statutes; 49 CFR Part 23; the United States Department of Transportation administrative decisions; guidelines and training manuals from USDOT or the Federal Highway Administration (FHWA); and its own rules. At the recommendation of a representative from FHWA, the Department amended the rules being challenged regarding qualifications for DBE certification to explicate the requirement for ownership control, as required by Section 339.0805(1),(c), supra, and 49 CFR Part 23.53, to include the concept of "expertise in critical areas of operation of the business" which is required by the USDOT. The terms "expertise" and "critical areas of operation" are not defined in the Florida Statutes or DOT's rules. The DOT interprets "critical areas of operation" to mean the technical area in which the DBE certification is being sought. Management limited to the day-to-day normal business operations is not considered to be a "critical area of operation." The DOT's evaluation of "expertise" changes from business to business based upon the applicant's type of work. The department expects to see education and experience on the part of the disadvantaged owner in the technical area of operations of the business. The Department denied the Petitioner DBE certification because the disadvantaged owner did not possess engineering experience or education.
The Issue The issues are whether Respondent engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by refusing to grant an accommodation which would have allowed Ms. Rose Marie Owens to keep a comfort cat in her condominium, and, if so, the amount of damages suffered by Ms. Owens.
Findings Of Fact Ms. Owens was a resident owner of a condominium in Longboat Harbour Condominiums (Longboat Harbour) during the alleged unlawful housing practice. Ms. Owens was a seasonal resident of the condominium from sometime in July 1987 through March 2007. Ms. Owens still owns the condominium at Longboat Harbour with Mr. Hank Airth, her husband. However, Ms. Owens and Mr. Airth purchased a second condominium after the alleged unlawful housing practice, and Ms. Owens and Mr. Airth no longer reside in the Longboat Harbour condominium. Longboat Harbour is a covered, multifamily dwelling unit within the meaning of Subsection 760.22(2). The Longboat Harbour condominium owned by Ms. Owens and Mr. Airth was a dwelling defined in Subsection 760.22(4) at the time of the alleged unlawful housing practice. Respondent is the entity responsible for implementing the rules and regulations of the Longboat Harbour condominium association. Relevant rules and regulations prohibit residents from keeping cats in their condominiums. Sometime in May 2006, Ms. Owens requested Respondent to permit her to keep a comfort cat, identified in the record as “KPooh,” as an accommodation for an alleged handicap. Respondent refused the requested accommodation, and this proceeding ensued. In order to prevail in this proceeding, Petitioner must first show that Ms. Owens is handicapped. Neither Petitioner nor Ms. Owens made a prima facie showing that Ms. Owens is handicapped within the meaning of Subsection 760.22(7). Cross-examination of Ms. Owens showed that Ms. Owens suffers from a cardiovascular ailment, osteoarthritis, and a trigeminal nerve condition. Surgery performed sometime in the 1990s improved the nerve condition. After the surgery, all of the medical conditions of Ms. Owens have been successfully treated with various medications, with no significant modification of the medications before and after Ms. Owens acquired KPooh in 2000. The testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed as suffering from depression. Nor does that testimony show that Ms. Owens has ever been diagnosed with panic disorders or panic attacks. Finally, the testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed with an emotional or psychiatric condition. A preponderance of the evidence does not show that any of the health problems suffered by Ms. Owens substantially limits one or more major life activities. Nor does Respondent regard Ms. Owens as having a physical or mental impairment. Ms. Owens and others testified concerning the medical conditions of Ms. Owens. None of that testimony showed that the medical conditions substantially limit one or more major life activities for Ms. Owens. Mr. Airth drives the vehicle for Ms. Owens most of the time and prepares most of the meals at home. However, Mr. Airth performs both life activities because he wishes to perform them. Neither Mr. Airth nor Ms. Owens testified that Ms. Owens is unable to perform either life activity. Part of the therapy medically prescribed for Ms. Owens is a special bicycle for exercises that will improve some of the medical conditions of Ms. Owens. However, as Ms. Owens testified, “I have not submitted to that . . . [because] I hate exercise.” Ms. Owens admits that exercise therapy would improve some of her medical conditions. Ms. Owens first took possession of KPooh in 2000. KPooh was a stray cat that showed up at the primary residence of Ms. Owens and Mr. Airth in Maryland. KPooh was hungry. Ms. Owens gave KPooh food and adopted KPooh. Petitioner attempts to evidence the alleged handicap of Ms. Owens, in relevant part, with two letters from the primary care physician for Ms. Owens. Each letter was admitted into evidence without objection as Petitioner’s Exhibits 3 and 4. The first letter, identified in the record as Petitioner’s Exhibit 3, is dated May 4, 2006. The text of the letter states in its entirety: Mrs. Owens has been a patient of mine since 1990. I know her very well. It is my opinion that she would suffer severe emotional distress if she were forced to get rid of her cat. I request an exception to the “No Pet” rule in her particular case. I understand that the cat is confined to her home, and that it is not allowed outside to disturb other residents. Petitioner’s Exhibit 3 (P-3). The first letter contains no diagnosis of an existing physical or mental impairment. Nor does the first letter evidence a limitation of a major life activity that is caused by a physical or mental impairment. The first letter opines that Ms. Owens, like many pet owners, would suffer severe emotional distress if she were required to get rid of her pet. However, the letter contains no evidence that the potential for severe emotional distress, if it were to occur, would substantially limit one or more major life activities for Ms. Owens. The second letter, identified in the record as Petitioner’s Exhibit 4, is dated January 2, 2007. The text of the letter consists of the following three paragraphs: Mrs. Rose Marie Owens is my patient. She has been under my care since 1990. I am very familiar with her history and with her functional limitations imposed by her medical conditions. She meets the definition of disability under the various Acts passed by the Congress of the United States since 1973. Mrs. Owens has certain limitations related to stress and anxiety. In order to help alleviate these limitations, and to enhance her ability to live independently, and to use and enjoy fully the unit she owns at Longboat Harbour Condominium, I have prescribed her cat, K-Pooh, as an emotional support animal. This should assist Mrs. Owens to cope with her disability. I am familiar with the literature about the therapeutic benefits of assistance animals for people with disabilities. Should you have questions concerning my recommendation for an emotional support animal for Mrs. Owens, please contact me in writing. P-4. The second letter does not identify a specific physical or mental impairment. The letter does not disclose what health conditions comprise Ms. Owens “medical conditions.” The letter does not describe the “functional limitations” that the doctor concludes, as a matter of law, satisfy the legal definition of a disability. Nor does the letter specify what major life activities are limited by the patient’s medical conditions. The second letter opines that KPooh will enhance the ability of Ms. Owens to live independently. The letter does not opine that KPooh is necessary for Ms. Owens to live independently. There is no evidence that KPooh is trained as a service animal. The two letters from the primary care physician of Ms. Owens are conclusory and invade the province of the trier- of-fact. The two letters do not provide specific and precise factual accounts of the medical conditions of Ms. Owens and the limitations that those conditions impose on major life activities. The two letters deprive the fact-finder of the opportunity to review and evaluate the specific and precise facts underlying the medical and legal opinions reached by the doctor. The two letters deprive the ALJ of the opportunity to independently decide the legal significance of any medical findings, which are not disclosed in either of the letters.2 Petitioner called as one of its witnesses a member of the Board of Directors (Board) for Respondent who had recommended that the Board approve the accommodation requested by Ms. Owens. Petitioner presumably called the witness, in relevant part, to bolster the two letters from the treating physician for Ms. Owens. The witness testified that his recommendation placed great weight on the fact that the doctor who authored the two letters is a psychiatrist. The undisputed fact is that the doctor specializes in internal medicine, not psychiatry. Petitioner attempted to show that Respondent’s stated reasons for denial of the accommodation were a pretext. Petitioner relied on evidence that arguably showed Respondent did not adequately investigate the alleged handicap of Ms. Owens before denying her request for an accommodation. Respondent made adequate inquiry into the alleged handicap when Ms. Owens requested an accommodation. Respondent requested a letter from the treating physician, which resulted in the letter that became Petitioner’s Exhibit 3. Finding that letter less than instructive, Respondent requested a second letter that became Petitioner’s Exhibit 4. Respondent properly determined that letter to be inadequate. In any event, this proceeding is not an appellate review of the past conduct of Respondent. This proceeding is a de novo proceeding. Counsel for Respondent fully investigated the medical conditions and alleged handicap of Ms. Owens prior to the final hearing. The investigation included pre-hearing discovery through interrogatories and requests for medical records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2009.
The Issue Whether Wayne Zimmet's proposed single-family boat dock and lift project is exempt from the need to obtain an Environmental Resource Permit (ERP) from the Department of Environmental Protection (Department) under Florida Administrative Code Rule 40E-4.051(3)(c).1
Findings Of Fact Both Wayne Zimmet and Scott Rosenblum own property in Tequesta, Florida, in a community known as North Passage, which has a man-made navigation and drainage easement canal that terminates at its eastern end at Mr. Rosenblum's property, which is Lot 74, at 8738 Riverfront Terrace. Mr. Zimmet's property, which is Lot 75, at 8750 Riverfront Terrace, is south of the eastern terminus of the canal. The Rosenblum and Zimmet properties are adjacent and share a common boundary. There is an existing dock extending from Mr. Rosenblum's property into the canal. The existing dock is perpendicular to, and extends west from the middle of, the shore of the eastern terminus of the canal. There is a wooden walkway leading from the residence on Mr. Rosenblum's property to the existing dock. However, there also has been a wooden walkway leading from Mr. Zimmet's property to the existing dock. As indicated in the Preliminary Statement, there is a dispute between Mr. Zimmet and Mr. Rosenblum as to who is entitled to access and use the existing dock--and in particular the south side of the existing dock. That dispute will be resolved in state circuit court.2 For purposes of this proceeding, it will be assumed that Mr. Rosenblum has the right to use the existing dock. On or about May 25, 2006, Mr. Zimmet filed an application requesting an ERP exemption to install an eight-foot by twenty-foot (160-square feet) marginal dock with a two-pile elevator lift to designed to accommodate his boat, which is approximately 24.5 feet long (22 feet at the waterline) and eight feet wide. According to documentation submitted with the application, the proposed dock would be centered along the waterfront of his property and extend approximately four feet into the canal. The proposed boat lift would be skewed toward the western end of the proposed marginal dock with the intent being to dock his boat with the bow facing the west so that proposed dock could be used to enter and load the boat from the stern. This positioning of the proposed lift and boat at the proposed dock would skew a boat on the lift at the proposed dock about three feet to the west, away from the existing dock. Based on the evidence, it is found that Mr. Zimmet did not prove by a preponderance of the evidence that his proposed boat dock and lift, even if skewed to the west as indicated in the application drawings, would not "impede navigation" to and from the south side of the existing dock. (Otherwise, Mr. Zimmet's proposed dock and lift would not "impede navigation" in the canal.) This impediment to navigation to and from the south side of the existing dock is not a mere inconvenience. Although Mr. Rosenblum now only owns and uses a raft at the existing dock, he testified that he plans on purchasing and using a boat. Boats in the range of approximately 24.5 feet in length with a beam of 8 to 8.5 feet are common in the North Passage canal. A boat of that size docked at the south side of the existing dock would barely fit alongside Mr. Zimmet's boat, whether docked or on the lift, and there would not be a reasonable amount of clearance for navigating a boat of that size commonly to or from the south side of the existing dock if Mr. Zimmet's boat were docked at the proposed dock or on the proposed lift. (Likewise, if a boat of that size were docked on the south side of the existing dock, there would not be a reasonable amount of clearance for Mr. Zimmet to use his proposed dock and lift.) There was no evidence of any impediment to navigation to and from the north side of the existing dock.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order concluding that, absent a circuit court determination that Mr. Rosenblum does not have the right to access and use the south side of the existing dock, Mr. Zimmet's proposed dock and lift project is not exempt from the need to obtain an ERP. DONE AND ENTERED this 23rd day of October, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2007.
Findings Of Fact Vause is in partnership with his brother and has a principal office at 100 Hamilton Avenue, Panama City, Florida. Vause's business has two full-time employees and has a net worth of less than $100,000.00. In DOAH Case No. 88-5988, Vause applied for a special activity license to use mechanical harvesting devices on his oyster leases. DNR denied the application by "Final Order" dated October 17, 1988, and this "Final Order" provided the clear point of entry. Vause availed himself of this point of entry and requested a formal hearing. After a formal hearing, a Recommended Order was entered on March 13, 1989, wherein it was concluded that the application was valid and adequate and that Vause had met all conditions precedent to be entitled to the permit sought. DNR had denied the permit based on legally insufficient and incorrect grounds and authority. Vause has incurred attorney's fees at the rate of $125.00 per hour. A total of 19.20 hours were expended by Vause's attorney in the underlying proceeding and in this proceeding. The number of hours is reasonable and they were necessary. The hourly rate is reasonable. Hence, Vause has incurred $2400.00 in fees.
The Issue The issues are whether Respondent General Aviation Terminal, Inc. (Respondent) discriminated against Petitioner Keneka Jones (Petitioner) based on her sex, gender, and/or disability and retaliated against her for complaining about said discrimination in violation of Section 760.10, Florida Statutes (2005).
Findings Of Fact Respondent is a foreign corporation that is licensed to do business in Florida. Respondent is an employer under the Florida Civil Rights Act of 1992, Sections 760.01 through 760.11, Florida Statutes (2006). Respondent provides contract services to airports and airlines around the country. The services include aircraft cleaning, baggage handling, and other services. Respondent calculated its bid for the Delta Air Lines, Inc. (Delta) cabin cleaning service at the Tallahassee Regional Airport, Tallahassee, Florida, based on eventual staffing of six full-time dedicated cabin service ramp agents (cabin service agents). The contract required Respondent to service the daily inbound flights with each employee having two days off each week. The contract required Respondent to have the cabin service up and running by the end of January 2006. The contract did not include the additional costs and hiring delays that Respondent would have incurred if it created a part-time for one employee, then looked for a second part-time employee in order to fill one of the six full-time positions. Respondent could not perform its contractual obligation to Delta with a part-time cabin service ramp agent. Petitioner, a black female, is a resident of the State of Florida. She has a learning disability that made her eligible for exceptional student education (ESE) classes in public school. Petitioner was retained in the 1st grade, the 9th grade, and the 12th grade. She received a special high school diploma but was unable to attend college because of her inability to pass the graduate education diploma (GED) examination. At some point in time, the Federal Social Security Administration determined that Petitioner suffered from mental retardation. Based on that determination, Petitioner became eligible for a monthly Social Security Disability (SSD) check. No health care provider has diagnosed Petitioner as having a disability that prevents her from working a full-time position. At times Petitioner suffers what she describes as anxiety or panic. However, there is no competent evidence that Petitioner suffers from panic attacks as a disability, which prevents her from working on a full-time basis. According to Petitioner, she takes medication and splashes water on her face when she begins to feel anxious. The only time Petitioner referred to her anxiety at work was when she came out of the restroom on one occasion and told a co-worker that she had just had a panic attack. To the extent that Petitioner suffers from anxiety attacks, her medication appears to quickly correct any impairment she may suffer. There is no competent evidence that the alleged anxiety substantially limits Petitioner’s major life activities. Petitioner has a noticeable speech impediment. The speech impairment is not so severe as to interfere with Petitioner’s ability to work. Respondent employed Petitioner in Tallahassee, Florida, as a full-time cabin service agent from January 7, 2005, until February 28, 2005. Petitioner’s primary job duty was to clean and service the interior cabins of airplanes, owned and operated by Delta at the Tallahassee Regional Airport. Petitioner was also expected to perform general maintenance of the restrooms inside Respondent's break room and other airline offices, including emptying garbage cans and dusting between arrivals of the various flights at least two times a day. Petitioner's job required her to clean and service four to six daily inbound flights. As a general rule, the flights were spaced out by one or more hours, depending on the schedule. Petitioner worked with two other full-time cabin service agents: (a) Stacy Bennett, lead agent and Petitioner’s direct supervisor; and (b) co-worker, Hillary Bennett. Respondent’s contract with Delta required each aircraft cabin to be serviced in approximately seven minutes. Over the course of an eight-hour shift, Petitioner and the two other employees in her position worked a total of only two to three hours. During the five to six hours of each shift that Petitioner was not required to perform any work duties, she was free to watch television, talk with co-workers, eat, or engage in other activities of her choosing, as long as she remained on the airport premises. Petitioner was qualified to perform her job duties without the need for any accommodation. The station manager, Cory Howell, interviewed and hired Petitioner. During the interview, Petitioner told Mr. Howell that she wanted to work part-time because she received SSD benefits and full-time work would cause her to make too much money, subjecting her SSD benefits to reduction or termination. Petitioner did not tell Mr. Howell that she needed part-time work as an accommodation for a disability such as panic attacks, mental retardation, or speech impairment. Petitioner's request for part-time work is consistent with her application in November 2004. However, the most persuasive evidence indicates that Petitioner accepted a full- time position with the understanding that Respondent did not have any positions for part-time ramp agents at that time. Mr. Howell did not promise Petitioner part-time work in the future but said he would see what he could do to honor her request. Due to a clerical error that affected the records of several full-time employees, Petitioner's personnel records erroneously indicate that Respondent hired her on a part-time basis. Despite the clerical error, Petitioner began working a full-time schedule on or about January 12, 2005. On her first day at work, Petitioner worked until 6:00 p.m. On her first or second day at work, Mr. Beitzel told Petitioner which two days a week would be her regular days off, and which five days a week she would be scheduled to work. Petitioner told Mr. Beitzel that she did not want to work full- time. Mr. Beitzel told Petitioner to speak with Mr. Howell. Later in January, Petitioner spoke to Mr. Howell on several occasions about her desire to work part-time. She told him she did not want to make too much money because she would lose her SSD benefits. She did not tell him that working full- time was causing her to have anxiety attacks or that she needed to work part-time as an accommodation for any disability, other than to preserve her SSD benefits. Mr. Howell consistently told Petitioner there were no part-time ramp agent positions. Respondent has employment practices prohibiting discrimination based on sex, gender, handicap, or retaliation for complaining about any type of discrimination. When Respondent hired Petitioner, she received copies of these policies as well as Respondent's policies regarding reasonable accommodation of disabilities. Petitioner read these policies and solicited help from other people on parts she did not understand. The policies state that employees should report any concerns regarding perceived harassment/discrimination or failure to provide a disability accommodation to their immediate supervisor or Respondent's human resources director. At all times material here, Dawn Middleton served as Respondent's Director of Human Resources. Petitioner had an opportunity to meet Ms. Middleton during the first few weeks of Petitioner's employment. During a lengthy conversation, Ms. Middleton explained her job responsibilities in detail. Petitioner did not tell Ms. Middleton that Petitioner was unhappy with her job in any respect. Respondent posted the daily flight schedule of aircraft that Petitioner and the other cabin service agents would need to service in the break room on a daily basis. Ms. Bennett also informed Petitioner about the daily schedule. On several occasions, Petitioner was not immediately available when an aircraft arrived for service. Because her mother was dead, Petitioner had custody of her younger sister, who was pregnant when Petitioner went to work for Respondent. Mr. Howell told Petitioner in advance that she would not be able to miss any work due to the baby's impending birth. Early one morning about two weeks after beginning her employment, Petitioner took her sister to the emergency room with symptoms that turned out to be false labor. Petitioner followed correct procedure by calling Mr. Beitzel, Respondent's training supervisor and second-in-command at the Tallahassee office, as soon as possible, to let Respondent know about the emergency and that she would be late to work. That same morning, Ms. Bennett complained to Mr. Howell that Petitioner had missed or been late to service a scheduled aircraft and that Petitioner was not assisting with cleaning the restrooms. When Petitioner arrived at work, Ms. Bennett and Mr. Howell, in the presence of Mr. Beitzel, verbally counseled Petitioner, informing Petitioner that her performance needed to improve. During this counseling, Petitioner was loud, argumentative, and refused to accept responsibility for her poor performance. After the counseling session, Petitioner's performance improved for a short time. However, Petitioner began having problems with her co-workers. At times, Petitioner and other employees would yell at each other. On one occasion, Mr. Howell was aware of verbal conflict between Petitioner and other employees sufficient to make him leave his office and enter the break room to inquire whether anything was wrong. Petitioner, in the presence of her co-workers, denied that there were any problems. It is clear that Mr. Howell was aware that Petitioner was having problems with some of the male employees because she complained on several occasions that the male employees were “messing” with her. However, other than the one inquiry reference above, Mr. Howell took no steps to verify or disprove Petitioner's complaints. The male employees routinely joked about Petitioner amongst themselves. They said she must have taken ESE classes, that she was special, and that she was a slow learner. The men told each other that Petitioner was a “pretty-ass girl,” until she opens her mouth. They joked about having sex with Petitioner if she were not "a little bit off." These types of comments were made when Petitioner was in the same room. The greater weight of the evidence is that Petitioner heard at least some, if not all, of the inappropriate comments about her mental disability. Petitioner was embarrassed and humiliated by the comments she heard and the knowledge that the men were making fun of her mental disability even when she could not hear precisely what they were saying. The men asked Petitioner whether she had ever taken English classes, sarcastically referring to her inability to speak properly. They told Petitioner someone needed to teach her how to speak correctly. Some of the male employees had crushes on Petitioner but did not want the other men to know their feelings for fear of being teased. Sometimes a man would tell Petitioner that she looked good. Occasionally, Petitioner would smile at and flirt with the men. One day Petitioner arrived at work with her hair in disarray. The men laughed among themselves, when one of them stated that Petitioner must have been out F------ all night. The greater weight of the evidence indicates that Petitioner did not hear this inappropriate comment. The most persuasive evidence indicates that Mr. Howell was aware that Petitioner was mentally retarded/learning disabled. In view of the close proximity of the break room to Mr. Howell's office, his ability to overhear discord among the employees, and Petitioner's complaints that the men were picking on her, Mr. Howell knew or should have known that the male employees were routinely harassing Petitioner, joking about her mental disability, and thereby creating a hostile work environment for Petitioner. On February 28, 2006, Petitioner and her supervisor, Ms. Bennett ate breakfast in the break room. They quietly began watching television after finishing their meal. After 30 or 40 minutes, Carlos Byrd, a male employee, entered the break room and began playing cards with another male employee. Next, Terryl Crenshaw (nicknamed Bama) entered the break room and asked Mr. Byrd what game they were playing. After Mr. Byrd responded, Mr. Crenshaw told Petitioner to move over. Petitioner knew Mr. Crenshaw wanted her to move so that he could play cards with Mr. Byrd and the other male employee. When Petitioner did not move, Mr. Byrd ordered Petitioner to "move your ass over." Petitioner continued to ignore the men. Mr. Crenshaw then abruptly shoved Petitioner's chair from behind, causing her to fall out of her chair. Petitioner got up yelling profanities at Mr. Crenshaw, telling him that he had no right to touch her chair. Mr. Howell, who was in his office, heard the men order Petitioner to move over. Mr. Howell did not hear Petitioner respond until he heard the chair being shoved. Mr. Howell entered the break room as Petitioner and Mr. Crenshaw exchanged hostile words. Because Petitioner was crying and obviously emotionally upset, Mr. Howell told Petitioner to calm down and to go into his office. Petitioner was very agitated and continued to express her feelings in a loud voice. Petitioner told Mr. Howell that he favored the male employees over her and that he always took their side rather than hers. Petitioner continued to shout at Mr. Howell when Mr. Beitzel entered the office. Mr. Howell could not get Petitioner to calm down. Instead she called Mr. Howell an "asshole" and a "mother- f ," daring him to fire her. All of the employees in the break room could hear Petitioner's tirade. Mr. Howell finally told Petitioner to hand over her security badge and leave the premises because she was terminated. Petitioner refused to surrender her badge or leave until a security officer arrived to escort her out of the building. Mr. Howell verbally counseled Mr. Crenshaw for his part in the disturbance. He took no other disciplinary action against Mr. Crenshaw. If Petitioner had calmed down as requested, Mr. Howell would have verbally counseled her without terminating her employment. Competent evidence indicates that use of profanity was common in the workplace. The male employees and the management joked with each other, had dinner together on out-of- town trips, and routinely used rough language amongst themselves, but never in an angry, hostile, or insubordinate manner like Petitioner's extended outburst. The only time a similar incident occurred in the past, Mr. Howell fired a male employee. Petitioner's personnel records erroneously indicate that she was discharged for unsatisfactory work performance. Petitioner's continued disruptive behavior and her profane and abusive language was insubordinate, leaving Mr. Howell with no choice but to terminate her employment. After her termination, Petitioner worked for a single day at a nursing home. Petitioner resigned that job, at least in part, because she did not want to lose her SSD benefits. There is no evidence that Petitioner has ever maintained a full- time or part-time job for a significant period of time. She certainly did not make a good-faith effort to mitigate her damages in this case.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Florida Commission on Human Relations enter a final order finding that Respondent discriminated against Petitioner based only on her mental disability relative to harassment and a hostile work environment. DONE AND ENTERED this 28th day of November, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th of November, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carolyn D. Cummings, Esquire Carolyn Davis Cummings, P.A. 462 West Brevard Street Tallahassee, Florida 32301 Joanne B. Lambert, Esquire Jackson Lewis LLP Post Office Box 3389 Orlando, Florida 32802-3389
The Issue The issue presented is whether Respondent terminated Petitioner's employment due to Petitioner's disability.
Findings Of Fact Respondent Ryan Companies is in the business of site development, including underground utility work. Ryan employed Petitioner in September 1995 to operate a front-end loader for Ryan's pipe division. A front-end loader is a heavy machine used to carry heavy materials in a front-end bucket. Petitioner's duties involved unloading materials with the front- end loader and laying the materials out with the loader in an area adjacent to where the piping crews were working. At the time of his employment, Petitioner wore a brace on his left leg as a result of complications from back surgery which Petitioner had undergone approximately ten years before his employment by Ryan. Petitioner disclosed on his written application that he wore the brace on his left leg but that he needed no reasonable accommodation to assist him in performing the essential functions of his job. Petitioner was able to climb in and out of the cab of the front-end loader without assistance. He also drove his own vehicle to and from work. His only restriction on driving was that he was not able to operate a vehicle which had a clutch. Although Petitioner asserts that he was disabled at the time he was employed by Ryan, Petitioner did not represent himself to be disabled to Ryan's other employees. Further, other Ryan personnel did not perceive him to be disabled. They only noticed that Petitioner walked stiff-legged with a limp, using a cane. Petitioner admits that he was able to perform his duties. Although Petitioner was not able to lift heavy objects, his duties did not require him to do so, and no evidence was offered that any inability to lift heavy objects was related to his left leg. Petitioner's position only required him to drive the front-end loader and move material for the pipe crews. Although Petitioner successfully completed his probationary period with Ryan, there were problems with his performance. On more than one occasion, Petitioner destroyed materials and knocked down grade stakes while operating his front-end loader. Petitioner's supervisor told him on more than one occasion that if it happened again, he would be replaced. Replacing the materials and having the survey crew return to the job site to re-position stakes cost Ryan money. However, Petitioner's supervisor was also concerned with the safety of the men laying pipe as a result of Petitioner's driving skills. It was ultimately decided by Ryan supervisory personnel that it was too risky to allow Petitioner to continue to operate a front-end loader. Rather than terminating Petitioner for inadequate performance, his supervisor first inquired of other supervisors if any of them could give Petitioner a different position in the company. Another supervisor said he had a position for Petitioner. Petitioner was transferred to the position of "ticket writer," in which Petitioner was to keep track of the material being trucked out from Ryan's haul pit at Winston Trails. Petitioner was required to write down the amount of material being hauled by each truck and was instructed in proper procedure by his new supervisor. His supervisor wrote out a sample for Petitioner to follow and filled out the first few tickets to show Petitioner what to do. Each time a new company came to the haul pit, Petitioner's supervisor wrote out a new form for Petitioner to follow. The amount of information to be recorded on the ticket was minimal: the name of the company taking the material, the date, the job site, and how many yards of material were being taken. The driver of the truck then signed the ticket. Petitioner was capable of performing his duties as a ticket writer. He never advised anyone that he could not read or write well enough. Rather, Petitioner admits he was capable of writing the tickets. However, Petitioner was careless in completing the tickets accurately, sometimes writing the name of the wrong company or incorrectly noting whether the truck was hauling 16 yards or 18 yards. He also put tickets in the wrong piles, causing the wrong customer to be billed. The tickets represent a bill of sale, and Petitioner was advised by his supervisor more than once that it was important that Petitioner complete the tickets more accurately. Petitioner was advised that if he continued to be careless, he would be terminated. Petitioner was terminated in August 1996 for continuing to write incorrect information on the truck loading tickets. The brace on Petitioner's left leg had no impact on Petitioner's ability to write tickets. Although Petitioner's representative appeared to argue at the final hearing that Petitioner cannot read or write, Petitioner disagrees with that suggestion. Petitioner was able to read maps and bills of lading when he had previously worked as a truck driver. He was also able to pass the Coast Guard four-hour written examination for a captain's license. He was also able to write for his daughter's use in his litigation a detailed report of his experiences at Ryan from the time he was hired until he was terminated. Petitioner had worked as a charter boat captain for about ten years prior to going to work for Ryan. The brace he wore on his left leg did not impede his ability to operate a charter boat in the open ocean, regardless of rough weather conditions. Since being terminated by Ryan, Petitioner has been employed as a security guard and does not have any problem fulfilling his duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent Ryan Companies not guilty of terminating Petitioner due to his disability and dismissing Petitioner's complaint filed in this cause. DONE AND ENTERED this 22nd day of March, 2002, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2002. COPIES FURNISHED: Deborah Rogers, Qualified Representative 445 Australian Circle Lake Park, Florida 33403 Paul M. Woodson, Esquire Houston & Shahady, P.A. 316 Northeast Fourth Street Fort Lauderdale, Florida 33301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Maritime Tug is a tug and barge company which purchases and sells barges in southeast Louisiana and transports them to Florida for repair, lease or sale. The company also engages in the lease of crew boats and tug boats. Stanley L. Kraly ("Stan L.") owns fifty-five percent (55%) of the stock of Maritime Tug and is the President of the company. Stan L. is twenty-four (24) years of age. He graduated from high school in 1984 and served four years in the United States Marines Corps in an infantry and reconnaissance battalion. His duties in the Marines included surface swimming, (the equivalent of a civilian lifeguard) and amphibious assault for hydrographic underwater beach surveys. Upon leaving the Marines, Stan L. began working for Maritime Fuel, Inc. ("Maritime Fuel") in Stuart, Florida. Maritime Fuel is owned by Stan L.'s father, Stanley R. Kraly ("Stan R."). Maritime Fuel is engaged in the dockside delivery of diesel fuel and marine-grade gas to privately owned boats and marinas. At Maritime Fuel, Stan L. was as an "assistant team leader." His duties included pulling the hose from the truck to fuel boats and assisting the "team leader" with other jobs. Maritime Tug was incorporated by Stan R. and Ken Hayes in March, 1989. In approximately July of 1989, Stan R. bought out Ken Hayes and became the sole owner of the company. Stan L. began working for Maritime Tug in June, 1989 as a deckhand apprentice. Stan L.'s duties as a deckhand apprentice included throwing and splicing lines. He split his time between Maritime Tug and Maritime Fuel for approximately three months. On October 10, 1989, Stan L. began working full- time for Maritime Tug. At that time, he also became president and majority stockholder of Maritime Tug as evidenced by a Stock Transfer Agreement dated October 10, 1989. Stan R. remains involved with Maritime Tug in the capacity of Vice- President and Treasurer of the company. His duties include the following: soliciting new business; negotiating financing on behalf of Maritime Tug and signing notes and leases; preparing job estimates; negotiating and signing contracts for major purchases and leases of tugs, barges, and other pieces of equipment. The evidence established that Stan R. is primarily responsible for the financial arrangements for Maritime Tug and only Stan R. signed for the line of credit established at Sun Bank by Maritime Tug. Stan R. completed five semesters at Maine Maritime College majoring in marine engineering. He has been a sales correspondent and manufacturer's representative for several companies. Stan R. has also owned a Texaco gas station and a welding company. Stan R. currently holds an inactive real estate license in the state of Florida. He is the sole stockholder of Maritime Fuel. He is also a partner in a business entity known as The Hast Corporation and is currently the president of the Marine Industry in Stuart. Because of his other business interests, Stan R. attempts to limit his involvement in the day to day operations of Maritime Tug. However, it is clear that Stan R. still plays an active role in the management of the company, especially with respect to financial matters. There is some confusion regarding the timing of Stan L.'s acquisition of his ownership interest in Maritime Tug. Maritime Tug's application to DOT for certification as a DBE is dated September 25, 1989. On page 3, paragraph number 10 of the application, the percentage of ownership of the company shows Stan L. and Stan R. owning fifty-one percent (51%) and forty-nine percent (49%), respectively. However, those numbers are crossed out on the application. On the same page, paragraph number 11, the ownership breakdown is shown as fifty- two percent (52%) and forty-eight percent (48%), respectively. Those percentages were initialed on the application form by Stan L. sometime prior to the final hearing. While both Stan L. and Stan R. testified that they had agreed in principal during the summer of 1989 for Stan L.'s purchase of a majority interest in Maritime Tug, there is no evidence of an actual transfer of stock other than the Stock Transfer Agreement which is dated October 10, 1989. On December 20, 1989, Ms. Kathy Garner, a consultant with DOT, conducted an on- site review of Maritime Tug during which she interviewed both Stan L. and Stan R. at Maritime Tug's place of business in Stuart, Florida. The notes recorded by Ms. Garner during the December 20, 1989 on-site interview indicate that the percentage of ownership was as it appears on the application, i.e., fifty- two percent (52%) for Stan L. and forty-eight percent (48%) for Stan R. DOT was not made aware of the October 10, 1989 stock transfer agreement between Stan L. and Stan R. (and in fact, was told that no agreement existed) until January 17, 1990, when DOT received an unsigned copy of the October 10, 1989, agreement. The October 10, 1989 Stock Transfer Agreement sets a purchase price of fifty-five thousand dollars ($55,000) for the fifty five percent (55%) interest purchased by Stan L. The Agreement leaves the amount of the payments to the discretion of the buyer (Stan L.) with a single required minimum annual payment of one thousand dollars. The Agreement states that the loan period is to be ten years. However, there are no acceleration provisions in the Agreement. Arguably, the buyer can take up to fifty-five years to pay off the purchase price. The first payment is due on October 10, 1990. As of the date of the hearing, there have been no payments made to Stan R. pursuant to the Agreement. Stan L. has given no collateral for this indebtedness which is apparently his only capital investment in the company and the only method of financing his purchase of fifty-five percent (55%) majority ownership in Maritime Tug. Stan L.'s fringe benefits are provided by Maritime Fuel, a corporation solely owned by his father, Stan R. Maritime Tug does not employ a secretary, but shares the full-time secretary employed by Maritime Fuel. Maritime Tug leases its office space from Maritime Fuel pursuant to a lease agreement for one hundred dollars per month. It is unclear whether the rental payments have been made. Since Stan L. became president and majority owner of Maritime Tug, the tug captain for the company (one of the most important positions for the company) was fired and a new captain was hired. Stan R. fired the former captain and hired the current captain, Mr. Alton Russell, in late April 1990. Stan L. was not involved in these decisions.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent Department of Transportation enter a Final Order denying Petitioner Maritime Tug's application for certification as a Disadvantaged Business Enterprise. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of August 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 day of August 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-0881 The Petitioner has not filed any post-hearing proposed findings of fact, or conclusions of law. The Respondent has submitted a Proposed Recommended Order. The following constitutes the Hearing Officer's rulings on the proposed findings of fact contained in that submittal. Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order where accepted or the reason for rejection Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in part in Findings of Fact 5. However, the last sentence is rejected as an overly broad summary of the testimony. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 9. Rejected as irrelevant. The provision in the bylaws appears to relate to the issuance of stock by the corporation and not the transfer of stock by individual holders of the stock. Rejected as unnecessary. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 12. COPIES FURNISHED: Brenda Bryant, Esquire Fields, Wilkinson, Bryant & Aiken, P.A. 55 East Osceola, Suite 100 Stuart, Florida 34994 William Peter Martin, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scanlan, Esquire Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue to determine in this matter is whether Respondent Department of Environmental Protection (DEP) properly issued its proposed verification of an Environmental Resource Permit (ERP) exemption, dated March 23, 2018, for the installation of nine pilings off of Respondent Larry Lynn’s residential property, in the direction of Petitioner MarineMax, Inc.’s commercial property (MarineMax), pursuant to section 373.406(6), Florida Statutes, commonly known as the “de minimus” exemption.
Findings Of Fact Mr. Lynn has owned the real property located at 111 Placid Drive, Fort Myers, Florida, since 1994. Mr. Lynn’s residential property is a corner lot that fronts a canal on two of the four sides of his property, and also contains his home. MarineMax is a national boat dealer with approximately 65 locations throughout the United States and the British Virgin Islands. MarineMax has approximately 16 locations in Florida. MarineMax, through subsidiary companies, acquired the property at 14030 McGregor Boulevard, Fort Myers, Florida, in December 2014 (MarineMax Property). Prior to MarineMax’s acquisition, this property had been an active marina for more than 30 years. MarineMax continues to operate this property as a marina. The MarineMax Property is a 26-acre contiguous parcel that runs north-south and that is surrounded by canals and a larger waterway that connects to the Gulf of Mexico. The “northern” parcel of the MarineMax Property is surrounded by two canals and the larger waterway that connects to the Gulf of Mexico. The “southern” parcel is a separate peninsula that, while contiguous to the northern parcel, is surrounded by a canal that it shares with the northern parcel, along with another canal that separates it from residential properties. Mr. Lynn’s property is located directly south of the northern parcel of the MarineMax Property, and the canal that runs east-west. As his property is a corner lot, it also fronts an eastern canal that is directly across from the southern parcel of the MarineMax Property. The eastern canal described above also serves as a border between MarineMax and a residential community that includes Mr. Lynn’s residential property. Mr. Lynn has moored a boat to an existing dock on the eastern canal described in paragraphs 5 and 6 for many years. MarineMax holds ERPs for the business it conducts at its MarineMax Property, including the canal between the northern parcel of the MarineMax Property and Mr. Lynn’s property. For example, these ERPs permit: (a) the docking of boats up to 85 feet in length with a 23-foot beam; (b) boat slips up to 70 feet in length; (c) up to 480 boats on the MarineMax Property; and (d) a boatlift and boat storage barn (located on the southern parcel). The MarineMax Property also contains a fueling facility that is available for internal and public use. It is located on the northern parcel of the MarineMax Property, directly across the east-west canal from Mr. Lynn’s property. The prior owner of the marina constructed this fueling facility prior to 2003. Request for Verification of Exemption from an ERP Mr. Lynn testified that after MarineMax took over the property from the prior owner, he noticed larger boats moving through the canal that separates his property from the MarineMax Property. Concerned about the potential impact to his property, including his personal boat, Mr. Lynn contracted with Hickox Brothers Marine, Inc. (Hickox), to erect pilings off of his property in this canal.2/ On March 8, 2018, Hickox, on behalf of Mr. Lynn, submitted electronically a Request for Verification of Exemption from an Environmental Resource Permit to DEP. The “Project Description” stated, “INSTALL NINE 10 INCH DIAMETER PILINGS AS PER ATTACHED DRAWING FOR SAFETY OF HOMEOWNER’S BOAT.” The attached drawing for this project depicted the installation of these nine pilings 16 and 1/2 feet from Mr. Lynn’s seawall, spaced 15 feet apart. On March 23, 2018, DEP approved Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit, stating that the activity, as proposed, was exempt under section 373.406(6) from the need to obtain a regulatory permit under part IV of chapter 373. The Request for Verification of Exemption from an Environmental Resource Permit further stated: This determination is made because the activity, in consideration of its type, size, nature, location, use and operation, is expected to have only minimal or insignificant or cumulative adverse impacts on the water resources. The Request for Verification of Exemption from an Environmental Resource Permit further stated that DEP did not require further authorization under chapter 253, Florida Statutes, to engage in proprietary review of the activity because it was not to take place on sovereign submerged lands. The Request for Verification of Exemption from an Environmental Resource Permit also stated that DEP approved an authorization pursuant to the State Programmatic General Permit V, which precluded the need for Mr. Lynn to seek a separate permit from the U.S. Army Corps of Engineers. Megan Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that DEP’s granting of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit was routine, and that his Request for Verification of Exemption from an Environmental Resource Permit met the statutory criteria. After DEP granted the Request for Verification of Exemption from an Environmental Resource Permit, Hickox, on behalf of Mr. Lynn, installed the nine pilings in the canal at various distances approximately 19 feet from Mr. Lynn’s seawall and in the canal that divides Mr. Lynn’s property from the MarineMax Property (and the fueling facility).3/ MarineMax timely challenged DEP’s Request for Verification of Exemption from an Environmental Resource Permit. Impact on Water Resources MarineMax presented the testimony of Sam Lowrey, its corporate vice president of real estate, who had detailed knowledge of the layout of the MarineMax Property. Mr. Lowrey testified that the canal between the MarineMax Property and Mr. Lynn’s residential property is active with boating activity, noting that MarineMax’s ERP allows up to 480 vessels on-site. With the installation of the pilings, he testified that he was concerned that MarineMax customers “will be uncomfortable navigating their boats through this portion of the canal[,]” which would be detrimental to MarineMax’s business. Mr. Lowery testified that he had no personal knowledge of whether MarineMax has lost any business since the installation of the pilings. MarineMax also presented the testimony of Captain Ralph S. Robinson III, who the undersigned accepted as an expert in marine navigation, without objection.4/ Captain Robinson has been a boat captain, licensed by the U.S. Coast Guard, since 1991. He has extensive experience captaining a variety of vessels throughout the United States and the Bahamas. He is an independent contractor and works for MarineMax and other marine businesses. Captain Robinson is also a retired law enforcement officer. Captain Robinson testified that he was familiar with the waterways surrounding the MarineMax Property, as he has captained boats in those waterways several times a month for the past 15 years. Captain Robinson testified that he has observed a number of boats with varying lengths and beams navigate these waterways, and particularly, the canal between the MarineMax Property and Mr. Lynn’s property. Captain Robinson estimated that the beam of these boats range from eight to 22 feet. He also testified that the most common boats have a beam between eight and 10 feet. Captain Robinson’s first experience with the pilings in the canal occurred in April 2018, when he was captaining a 42- foot boat through the canal. He testified that an 85-foot boat was fueling on the fuel dock, and when he cleared the fueling boat and pilings, he had approximately one and a half feet on each side of his boat. He testified that “[i]t was very concerning.” Captain Robinson testified that since this experience in April 2018, he calls ahead to MarineMax to determine the number and size of boats in the portion of this canal that contains the pilings. On behalf of MarineMax, in December 2018, Captain Robinson directed the recording of himself captaining a 59-foot Sea Ray boat with an approximately 15- to 16-foot beam through the canal separating the MarineMax Property and Mr. Lynn’s residential property, with another boat of the same size parked at MarineMax’s fueling dock.5/ Captain Robinson testified that these two boats were typical of the boats that he would operate at the MarineMax Property and surrounding waterway. The video demonstration, and Captain Robinson’s commentary, showed that when he passed through the canal between the fuel dock (with the boat docked) and Mr. Lynn’s residential property (with the pilings), there was approximately four to five feet on either side of his boat. Captain Robinson stated: This is not an ideal situation for a boat operator. Yes, it can be done. Should it be done? Um, I wasn’t happy or comfortable in this depiction. Captain Robinson testified that his “personal comfort zone” of distance between a boat he captains and obstacles in the water is five or six feet. Ultimately, Captain Robinson testified that he believed the pilings in the canal between the MarineMax Property and Mr. Lynn’s property were a “navigational hazard.” Specifically, Captain Robinson stated: Q: In your expert opinion, has Mr. Lynn’s pilings had more than a minimal, or insignificant impact on navigation in the canal, in which they are placed? A: I believe they’re a navigational hazard. The impact, to me personally, and I’m sure there’s other yacht captains that move their boat through there, or a yacht owner, not a licensed captain, um, that has to take a different approach in their operation and diligence, um, taking due care that they can safely go through. It’s been an impact. Q: Is a navigational hazard a higher standard for you as a boat captain, being more than minimal or insignificant? A: Yes. A navigational hazard is, in my opinion, something that its position could be a low bridge or something hanging off a bridge, a bridge being painted, it could be a marker, it could be a sandbar, anything that is going to cause harm to a boat by its position of normal operation that would cause injury to your boat, or harm an occupant or driver of that boat. Ms. Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that after MarineMax filed the instant Petition, she and another DEP employee visited Mr. Lynn’s residential property. Although not qualified as an expert in marine navigation, Ms. Mills testified that, even after observing the placement of the pilings and the boating activity the day she visited, the pilings qualified for an exemption from the ERP.6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that DEP enter a final order dismissing MarineMax’s challenge to the determination that Mr. Lynn’s pilings qualify for an exemption from an environmental resources permit pursuant to its March 23, 2018, approval of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resources Permit. DONE AND ENTERED this 28th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2019.
