The Issue The issue is whether Petitioner owes tax, penalty, and interest under Section 212.05(1)(a)2., Florida Statutes,1/ for an aircraft that it allegedly purchased and used in Florida.
Findings Of Fact Petitioner is a national banking and trust company headquartered in Utah. It does not have any operations or personnel in Florida. Petitioner routinely serves as “owner trustee” for non- U.S. citizens who want to register aircraft with the Federal Aviation Administration (FAA). Petitioner charges a fee (typically $4,000) to set up the trust, as well as an annual fee (typically $2,000) for its services as “owner trustee.” Petitioner holds legal title to the aircraft in its capacity as “owner trustee” because the FAA regulations do not allow non-U.S. citizens to register aircraft. Petitioner does not have any operational control over the aircraft even though it holds legal title. The tax assessment at issue in this case relates to a Cessna Citation 650 jet, tail number N385EM (hereafter “the aircraft”), which Petitioner holds legal title to as “owner trustee” pursuant to a Trust Agreement dated April 28, 2007. The trustor and beneficiary under the Trust Agreement is MAW.ZC, LLC, which is a Delaware limited liability company, controlled by a non-U.S. citizen, Nelson Ceballos. The sole purpose of the trust was to “ensure the eligibility of the Aircraft for United States registration with the [FAA].” The aircraft was purchased from Southern Jet Center (SJC) in Sanford, Florida, on May 3, 2007, for $3.74 million. The “purchaser” identified on the Bill of Sale was “Wells Fargo Bank Northwest, NA as Owner Trustee under Trust Agreement dated 4/28/07.” MAW.ZC, LLC, was not mentioned on the Bill of Sale. Petitioner’s witness, Jon Croasman, testified that MAW.ZC, LLC, negotiated the purchase of the aircraft with SJC, and then assigned the purchase right to Petitioner as “owner trustee” so that the aircraft would not lose its tail number and it would be easier to register the aircraft with the FAA. The record does not contain a written purchase agreement between MAW.ZC, LLC, and SJC or a written assignment of the purchase right from MAW.ZC, LLC, to Petitioner. According to Mr. Croasman, SJC was “kind of an unsophisticated seller” and it did not require these documents. Mr. Croasman was the only witness with personal knowledge of the events surrounding the purchase of the aircraft who testified at the final hearing. His testimony was logical and persuasive and is accepted as credible despite the absence of corroborating documentation. Petitioner did not pay anything to SJC for the purchase of the aircraft. The entire $3.74 million purchase price was paid by MAW.ZC, LLC. Petitioner was the purchaser of the aircraft in name only. The real purchaser was MAW.ZC, LLC. On May 4, 2007, Petitioner filed an application to register the aircraft with the FAA. The applicant listed on the application form was “Wells Fargo Bank Northwest, National Association, not in its individual capacity but solely as Owner Trustee under a Trust Agreement dated as of 4/28/07.” On the same day, the FAA issued a certificate of registration for the aircraft. The certificate was issued to “Wells Fargo Bank Northwest NA Trustee.” Registration of an aircraft with the FAA has no bearing on its ownership. Indeed, the official registration document for the aircraft issued by the FAA states: “This certificate is issued for registration purposes only and is not a certificate of title. The Federal Aviation Administration does not determine rights of ownership as between private parties.” On May 7, 2007, Petitioner filed with the Department an Affidavit for Exemption of Aircraft Sold for Removal from the State of Florida by a Nonresident Purchaser (hereafter “the Removal Affidavit”). The affidavit identified the purchaser of the aircraft as “Wells Fargo bank Northwest, NA, not in its individual capacity but solely as Owner Trustee for MAW.ZC, LLC.” The aircraft remained in Florida undergoing repairs at SJC from the date of purchase until July 2, 2007, when it was flown to Venezuela where it was based. It is undisputed that the aircraft left Florida within 20 days after the initial repairs were completed and, therefore, the sale was exempt from the sales tax. The Department informed Petitioner in a letter dated July 13, 2007, that the aircraft could not be brought back into Florida for a period of six months without its becoming subject to Florida’s use tax. Petitioner forwarded this letter to Mr. Ceballos, since he and MAW.ZC, LLC, were responsible for the operation of the aircraft. Petitioner did not exercise any control over the operation of the aircraft after its purchase. In April 2007, prior to the purchase of the aircraft, Petitioner and MAW.ZC, LLC, entered into an Aircraft Operating Agreement. This agreement was executed in conjunction with the Trust Agreement in anticipation of the purchase of the aircraft. The Aircraft Operating Agreement gave MAW.ZC, LLC, “an exclusive right to possess, use and operate the Aircraft.” The agreement required MAW.ZC, LLC, to pay all costs associated with the operation and maintenance of the aircraft. And, with respect to the operation of the aircraft, the agreement required only that MAW.ZC, LLC, cause the Aircraft to be operated by competent personnel in accordance with the manufacturer’s manuals and FAA and other government regulations. On June 15, 2007, Petitioner authorized Captain Alexander Nunez to pilot the aircraft “wherever necessary and specifically including but not limited to Venezuelan air space.” Petitioner interprets the Trust Agreement and the Aircraft Operating Agreement to preclude it from exercising any control over the operation of the aircraft even though Section 9.01(a) of the Trust Agreement gives Petitioner “absolute and complete discretion” in connection with matters involving the ownership and operation of the aircraft so as to protect the interests of the United States. According to Mr. Croasman, the language in Section 9.01 is required verbatim by the FAA for the sole purpose of ensuring that Petitioner, as “owner trustee,” will be able to operate the aircraft without violating its obligations under the Trust Agreement in the unlikely event that the U.S. government needs to use the aircraft for some reason.2/ And, as Mr. Croasman pointed out, Section 9.01(a) requires Petitioner to “exercise this discretion in all matters involving ownership and operation of the Aircraft by the Owner Trustee with due regard for the interests of the Trustor.” The Trust Agreement and the Aircraft Operating Agreement provided that MAW.ZC, LLC, was responsible for keeping records concerning the use of the aircraft. MAW.ZC, LLC, was also responsible for paying any taxes or expenses related to purchase or use of the aircraft. The aircraft crashed in Venezuela on February 18, 2008, killing Mr. Ceballos, Captain Nunez, and the copilot. The original flight records for the aircraft were destroyed in the crash, and no copies of those records were presented at the final hearing. No witness with personal knowledge regarding the operation of the aircraft was presented at the final hearing. The only evidence presented concerning the operation of the aircraft was flight data obtained from two Internet sources, FlightAware and fboweb.com. The FlightAware data was obtained by Department staff as part of their monitoring of the aircraft’s operation during the six-month period after its initial departure from Florida. The fboweb.com data was provided to the Department by David McDonald, the attorney for MAW.ZC, LLC, and Mr. Ceballos, who was acting as Petitioner’s authorized representative during the investigation and protest phase of this case. There is no evidence that Mr. McDonald had any personal knowledge of the information contained in the fboweb.com data, and he did not present it to the Department as his understanding of the aircraft’s operation. Indeed, the letter by which Mr. McDonald transmitted the fboweb.com data to the Department stated that he was “having trouble trying to decipher the information provided by fboweb.com” and that he was providing it to the Department because it appeared to be inconsistent with the FlightAware data conveyed to him by the Department staff. Mr. McDonald never expressly contested the assertion by the Department staff that the aircraft returned to Florida within the six months after it initial departure. His failure to do so was not, under the circumstances, an admission or acquiescence to the Department’s position that the aircraft did return to Florida within that period. Indeed, he informed the Department staff on several occasions that he had not been able to obtain information concerning the aircraft’s operation because the aircraft’s flight records were destroyed in the crash. No credible evidence was presented as to what the FlightAware or fboweb.com services are, or how they obtain the flight data included in their records. For example, when asked to explain her “understanding of what Flight Aware is,” the Department witness used to introduce the data testified only that “[i]t’s a service that the Department subscribes to to track the flights for the aircraft.” The FlightAware data indicates that the aircraft made eleven flights into Florida between September 2007 and January 2008: Flight Date Destination 1 9/22/07 from Arturo Michelena International Airport (Arturo) in Venezuela to Kendall-Tamiami Executive Airport, and then to Simon Bolívar International Airport in Venezuela by way of Ft. Lauderdale Executive Airport on the same day 2 9/29/07 from Arturo to Hollywood International Airport (FLL), and then to Simon Bolivar International Airport the following day 3 10/1/07 from Arturo to FLL, and then back to Arturo the same day 4 10/4/07 from Arturo to FLL, then to Orlando Sanford International Airport (SFB) the following day, with a return to Arturo by way of FLL and Nassau International Airport on October 14 5 10/15/07 from Arturo to FLL, then to SFB on the same day 6 12/16/07 from Arturo to FLL, then to SFB the same day, with a return to Arturo on December 20 7 12/21/07 from Arturo to FLL, and then back to Arturo on the same day 8 12/23/07 from Arturo to FLL, and then back to Arturo on the same day 9 1/3/08 from Punta Cara International Airport to FLL, then to SFB on the same day, with a return to Arturo by way of FLL on January 6 10 1/10/08 from Arturo to FLL, and then back to Arturo on January 12 11 1/13/08 from Arturo to FLL, and then back to Arturo on the same day The fboweb.com data is, as Mr. McDonald noted, difficult to decipher. However, it appears to include most, if not all, of the flights that were listed in the FlightAware data. The fboweb.com data also lists flights on September 8- 9, 2007, between Arturo, FLL, and SFB. Those flights were not listed in the FlightAware data. No findings can be made as to whether the aircraft was indeed in Florida on the dates reflected in the FlightAware or fboweb.com data because that data is uncorroborated hearsay. Even if the FlightAware and fboweb.com data could be relied upon to establish that the aircraft was in Florida on the dates referenced above, only the September 8-9 flights listed in the fboweb.com data and the first eight flights listed in the FlightAware data would be relevant. The other three flights listed in the FlightAware data -– 1/3/08, 1/10/08, and 1/13/08 - – occurred more than six months after the aircraft’s initial departure from Florida on July 2, 2007. Mr. McDonald was able to locate and provide to the Department repair invoices related to only four of the nine relevant flights listed in the FlightAware and fboweb.com data – - 9/8/07, 10/4/07, 10/15/07, and 12/16/07. On each of those occasions, there is documentation showing that the aircraft underwent repairs at SJC in Sanford. There is no evidence that the aircraft underwent repairs in connection with the other five flights listed in the FlightAware data -– 9/22/07, 9/29/07, 10/1/07, 12/21/07, and 12/23/07. Mr. McDonald provided an invoice for a part that was purchased for the aircraft at FLL on September 29, 2007, but there is no evidence that the part was installed in Florida on that trip. No sales or use tax was paid on the aircraft by Petitioner or any other entity or person to Florida or to any other state or country. Petitioner does not dispute the amount of the tax, penalty, or interest calculated by the Department in the Notice of Reconsideration. The tax is $224,400, which is six percent of the sales price of the aircraft; the penalty is $224,400, which is 100 percent of the tax as required by Section 212.05(1)(a)2., Florida Statutes; and interest is accruing at a rate of $67.44 per day, with $27,273.10 of interest having accrued through the date of the Notice of Reconsideration. These amounts were assessed against Petitioner in its capacity as “owner trustee,” not its individual capacity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order rescinding the assessment at issue in this case. DONE AND ENTERED this 19th day of August, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of August, 2009.
Findings Of Fact The airport security officers are principally involved in enforcing parking regulations and directing traffic at the airport. Although they carry basically the same equipment as do Orlando City police officers, they wear blue shirts and the Orlando police wear brown shirts. Further, the Orlando police are civil service, and the airport guards are not. There was some testimony that the security officers are not sworn officers, and do not have the peace officer's powers of arrest; however, those so testifying demonstrated less than a full understanding of the meaning of arrest. These security officers are sworn in by the mayor of the city, are issued badges, guns, handcuffs, nightsticks, mace, radios, etc.; and Exhibit 51, General Rules for Airport Security Officers contains a section on arrest and provides that arrests shall be made in the manner provided for peace officers. Accordingly, it seems clear, despite the apparent opinion of the Orlando police department to the contrary, that airport security officers are peace officers within the meaning of the Florida Statutes. Several witnesses testified to numerous interfaces between the security officers and other airport employees such as directing traffic while emergency road, or other, repairs are being made; providing security when a gate must be kept open for repairs; and assisting in turning off valves, placing or removing barricades when emergency conditions require. The Operations Technician exercises certain authority over security officers during emergencies or at nighttime when other supervisory personnel are off duty. The exercise of this authority is normally through the duty security sergeant. Airport security officers stand duties on 8 hour shifts as do Operations Technicians and Communications clerks. No testimony was presented that maintenance personnel stand similar shifts, but, it would be presumed that if not actually on duty during the 24 hour day, certainly some of these employees are on immediate call during the period normally regarded as other than normal working hours. Security Officers are paid on a biweekly schedule as are some other airport personnel; most maintenance employees are paid on a weekly basis. The pay scales of security officers and other airport employees proposed to be included in the appropriate bargaining unit are comparable. Some of these employees have a higher pay grade and others a lower pay grade than that of the security officers. There is little, if any, interchange in jobs or duties between security officers and maintenance personnel; nor is there interchange of jobs between electricians and plumbers, for example, within the Maintenance Division. The City and County (Orange) have approved the formation of an airport authority to operate both Herndon Airports and Orlando Jetport, and await legislative approval from the State. When approved and established, the authority will be the public employer for all airport employees. In a separate representation hearing, Laborer's International Union, Local 517, in a proceeding involving so called blue collar workers employed by the City of Orlando, has disclaimed any interest in including airport employees in their proposed unit. Disputes have arisen in the past regarding inspecting and servicing vehicles used by security officers, and the City takes the position that if security officers and maintenance personnel are not in the same bargaining unit a greater likelihood of jurisdictional disputes exists. The City takes the position that having fewer unions with which to bargain will simplify or reduce the problems associated therewith and permit more efficient administration. Such benefit would perhaps be more significant when, and if, the airport authority is created. Concrete facts to support this position could not be presented since there is no history of collective bargaining at the City airports; however, it would not be unreasonable to conclude that reaching bargaining agreements with two unions would be easier than reaching agreements with three.
The Issue As described in the parties' Prehearing Stipulation Petitioners are challenging the Respondent's (SJRWMD) solicitation process with regard to the "Invitation to submit an Offer to Purchase property known as the Zellwin Airstrip." Petitioners seek to set aside the award of purchase to Intervenors and to have the solicitation process re-advertised. The issue for resolution is whether Petitioners are entitled to that relief.
Findings Of Fact In 1996 the Florida Legislature mandated that the St. Johns River Water Management District (SJRWMD) attempt to purchase farms on the north shore of Lake Apopka as part of a long-term restoration and reclamation project. Petitioners, Rex Shepherd and Dale Harper, are pilots and owners of an aerial advertising business, American Outdoor Aerial Advertising. In early 1998 the business was operating out of Crakes field, a small airstrip owned by Kent Crakes as part of Crakes' North Lake Apopka farm. Petitioners' business owned airplanes and banners which it flew for its advertising clients such as Sears and GEICO. Sometime in early 1998 it became obvious that Petitioners would need to move their operation to another field. There were break-ins at the hanger, and the airstrip was beginning to flood as a result of the reclamation project. Kent Crakes referred Rex Shepherd to Leonard Freeman, the individual with SJRWMD who was involved with land acquisition in the area. Around March or early April 1998 Petitioners commenced discussions with Mr. Freeman regarding their use of the farm airstrip at Zellwin Farms, also part of the SJRWMD Lake Apopka farms acquisition program. Mr. Freeman was the SJRWMD point of contact for the Zellwin Farms acquisition. By early 1998, the property was already under contract and was scheduled to close some time around June 1998. Mr. Freeman and the Petitioners met at the Zellwin Farms airstrip in June 1998, and Petitioners determined the property would be suitable for their operation. Eager to accommodate Petitioners because of their predicament and also in anticipation of the SJRWMD's eventual sale of the Zellwin parcel, Mr. Freeman gave permission for Petitioners to store their equipment on the site and gave them a key. Because Zellwin Farms was beyond what SJRWMD considered to be the lake's historic shoreline, the SJRWMD knew that it would need to dispose of its 1400 acres as surplus, in whole or part. Mr. Freeman's desire was to find a way to dispose of the property as the best thing for the SJRWMD. Thus, because of the Petitioners' immediate interest in relocating their business, Mr. Freeman began negotiating with them for their purchase of the airstrip and related buildings. In September 1998, Mr. Freeman met again with Petitioners at the airstrip and discussed a specific proposal. Petitioners talked about offering $250,000 under a lease-purchase arrangement, and sent a letter dated September 10, 1998, to Mr. Freeman with that offer. Mr. Freeman later suggested that since the appraised value was $275,000, an offer in that amount would be easier to get approved. Mr. Freeman did not have the authority to obligate the SJRWMD to sell the property and Petitioners understood that. Still, Petitioners felt they were negotiating in good faith with staff who could make a strong recommendation to the board. Petitioners believed in early October that they had a hand-shake deal subject to further discussions regarding specific terms. They knew that a competitive solicitation might be an option for the SJRWMD but they also believed that they would be given an opportunity to meet another third party's offer. This belief was based not on some specific agreement for a "right of first refusal," but rather on Mr. Freeman's good-natured assurances that they would work it all out. Mr. Freeman requested that the SJRWMD special counsel develop a draft contract based on Petitioners' offer. The offer would then need to be signed by Petitioners and approved by Mr. Freeman's supervisor before going to the SJRWMD governing board. The counsel never finished the draft and it was never given to Mr. Freeman or the Petitioners. By the end of October 1998, Robert Christianson, Mr. Freeman's supervisor and director of the SJRWMD Department of Operations and Land Resources, learned that Petitioners were flying in and out of the Zellwin airstrip and using it for their business base of operations. This activity was beyond the storage permission that Mr. Freeman had granted. (Even that permission was beyond his individual authority.) Mr. Freeman and Mr. Christianson met with Petitioners on October 27, 1998, to work out a license agreement for their use of the airstrip. Such an agreement was necessary to protect the parties' respective interests and to cover the SJRWMD for any liability in the landlord/tenant relationship. The result of that meeting was a written license agreement for Petitioners to use, maintain, and provide protection for the property for a period from October 30, 1998, to April 30, 1999, subject to revocation with advance notice. Petitioners used the airstrip property under that agreement and made improvements, mostly cleaning up the facility so it could be used. At the October meeting it became obvious to Petitioners that the informal negotiations for their purchase were terminated and that the SJRWMD was going to solicit competitive offers for the purchase. This concerned the Petitioners and they felt let- down by Mr. Freeman. Still, they concentrated on getting the license agreement worked out. Rex Shepherd's account of the October meeting was that Mr. Christianson was very clear about the fact that the SJRWMD had to go for competitive bid, that they were bound by a board and rules and regulations even though both he and Mr. Freeman would like for Petitioners to have the airport, and that they should be able to work it out. At the end of the meeting, and as they were leaving the trailer, Mr. Shepherd commented to Mr. Freeman that he really did not want to lose the airport and wanted to be apprised of what was going on so that if there were a higher bid, he could have the opportunity to match it, or if it were too high, that they would have 30 or 60 days to vacate the property. According to Mr. Shepherd, Mr. Freeman simply responded, "We'll work all that out, don't worry about it." On November 11, 1998, the SJRWMD governing board voted to surplus the Zellwin Farms property with direction to the staff that the sale be widely advertised in the aviation community and not be a sole source deal. Consistent with the board's direction and pursuant to Section 373.089(3), Florida Statutes, the SJRWMD advertised a "Notice of Intention to Sell" the airstrip property in the Orlando Sentinel for three consecutive weeks, November 9, 16, and 23, 1998. The notice identifies the airstrip property as an "Approximately 47-acre agricultural airport facility, 2,200'? square feet asphalt runway, 5,250 ? square feet metal hanger, 2,048 ? storage square feet building, well and septic tank at a location of northwest Orange County, Florida, Sections 20 and 29, T-20-S, R-27-E, on Jones Avenue, 1 ? mile west of U.S. Highway 441, Zellwood." The Notice of Intention to Sell states that "[a]ll interested persons are invited to submit an offer to the District for purchase of said lands. Contact the District . . . and request an Airport Sales Package." Both the Airport Sales Package and the Notice of Intention to Sell state that the airport property will be sold for the highest price obtainable. The sales package states that full cash offers to be paid at closing will be given first consideration and that 10 percent of the purchase price must be paid when the offeror was notified that it was successful. The sales package also states that any person adversely affected by an offer solicitation shall file a Notice of Protest, in writing, prior to the date on which the offers are to be received, and shall file a formal written protest within ten (10) days after filing the Notice of protest pursuant to Florida Administrative Code Rule 40C-1.801. * * * Failure to timely file a notice of protest or failure to timely file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (SJRWMD Ex. 3). Both the Notice of Intention to Sell and the sales package require that sealed "offers for purchase" be submitted to the SJRWMD prior to 2:00 p.m. on December 4, 1998, the advertised time for opening of the offers. Nothing in the Notice or sales package reserves a right of first refusal for any person. Instead, both plainly state "no offer will be accepted after the date and hour specified for submittal of offers." (SJRWMD Exhibits 1 and 3) Although Petitioners did not see the newspaper notice, they had knowledge that the SJRWMD advertised the sale of the airstrip property through a competitive solicitation process in the newspaper. They had been clearly informed of need for the competitive process by Mr. Christianson at the October meeting and they were present when a pre-solicitation meeting/inspection took place at the airstrip in November prior to the offers being accepted by the SJRWMD. Intervenors requested a sales package from the SJRWMD on November 30, 1998, and December 2, 1998. Petitioners requested and received a sales package prior to the opening of the offers to purchase. The sales packages were not available to the public until December 2, 1998, the same day Petitioners received their package. Mr. Freeman told Petitioners they needed to submit their bid. Although the sales package stated that facsimile offers would not be accepted by the SJRWMD, Leonard Freeman informed Petitioners that they could fax their Offer to Purchase. The SJRWMD did accept a facsimile offer to purchase from Petitioners on December 4, 1998, at 1:07 p.m. Offers to purchase were opened by the SJRWMD at 2:10 p.m. on December 4, 1998. Petitioners submitted an offer to purchase the airstrip property for $275,000, where Petitioners would pay $1,500.00 per month for 60 months ($90,000 with $72,000 applied toward principal) with a balance of $203,000 cash to be paid at the end of the 60-month term. Intervenors submitted an offer to purchase the airstrip property for $310,000, where Intervenors would put 10 percent down ($31,000 earnest money deposit) at award of Agreement of Purchase and Sale and the balance of $279,000 cash would be paid at closing on or before May 1, 1999. Petitioners' offer to purchase was not the highest offer; it did not provide for cash at closing; and it did not meet the requirement of 10 percent to be paid upon notification. Staff recommended to the SJRWMD board that it award the purchase of the airstrip property to the highest offeror, Intervenors. The governing board approved staff's recommendation at its regularly scheduled meeting on December 9, 1998. On December 9, 1998, Petitioners filed a Notice of Protest. On December 18, 1998, Petitioners filed a copy of their Formal Bid Protest with the SJRWMD. Petitioners never grasped the implications of the competitive solicitation process until after the offers were opened and the award was made to Intervenors. Even if Petitioners had seen the newspaper notice and had received the sales package sooner, they still would not have protested because they understood that their "agreement" was outside of the process. That is, they mistakenly perceived that after the offers were in they could negotiate further to exceed the high offer. Chagrined, and genuinely regretful of the misunderstanding, Mr. Freeman had to tell Petitioners that further negotiations were foreclosed after the offers were opened. Mr. Freeman's earlier assurances to Petitioners were the result of an excess of bonhomie rather than any deception. He wanted them to have the airport and he wanted to work out the sale of surplus property. Petitioners were aware that he did not have the authority to bind his agency to an agreement. Mr. Freeman never specifically told Petitioners they had a right of first refusal; they wanted that advantage and surmised agreement from Mr. Freeman's and Mr. Christianson's vague counsel to not worry and that it would all be worked out. The SJRWMD devised a competitive process for disposition of the Zellwin airstrip that was consistent with its statute and with the direction of its governing board. Intervenors responded with an offer that met all the published requirements. Petitioners did not, and any culpability of SJRWMD's staff for Petitioners' misunderstanding is not so egregious as to require that the process begin again. Petitioners occupied the property, used it, and made improvements to enhance their use. This, however, was in reliance on their license to use the property and not on some certainty that they would ultimately be able to own the property. As Petitioners testified at hearing, they were disappointed that the SJRWMD decided to solicit competitive proposals; they knew that it was possible someone would offer more than they could match. (Harper, Transcript pages 117-120).
Recommendation Based on the foregoing, it is RECOMMENDED: that the SJRWMD enter its final order denying Petitioners' request to reject all bids and re-advertise the sale. DONE AND ENTERED this 24th day of June, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 24th day of June, 1999. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post office Box 1429 Palatka, Florida 32178-1429 John W. Williams, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Clayton D. Simmons, Esquire Stenstrom, McIntosh, Colbert, Whigham And Simmons, P.A. Post Office Box 4848 Sanford, Florida 32772-4848 Stanley Dollen 1230 Kelso Boulevard Windermere, Florida 34786 Herbert Clark 5416 Trimble Park Road Mt. Dora, Florida 32757
The Issue Whether the Florida Department of Transportation (FDOT or Department) properly issued an Airport Site Approval Order to Air-Med Eye Care in Hillsborough County, Florida.
Findings Of Fact In March 2017, Dr. Henderson submitted to FDOT an application for approval to construct a private airport (heliport) in Hillsborough County, Florida. FDOT has authority under section 330.30, Florida Statutes (2018),1/ to issue airport site approval orders, register private airports, and license public airports. Section 330.27(2) defines an “airport” as “an area of land or water used for, or intended to be used for, landing and takeoff of aircraft, including appurtenant areas, buildings, facilities, or rights-of-way necessary to facilitate such use or intended use. Section 330.27(4) defines a “private airport” as “an airport, publicly or privately owned, which is not open or available for use by the public, but may be made available to others by invitation of the owner or manager.” Public airports must submit to an on-site inspection and provide documentation to the Department for consideration of an airport site approval order. Private airports are required to maintain the same documentation required of public airports, but are not required to submit documents to the Department or submit to an on-site inspection. Instead, applicants seeking a private airport site approval order use an interactive database to respond to a series of questions and the applicant then certifies that they possess the documentation required to support the application. On February 10, 2009, the Hillsborough County Board of County Commissioners (county commission) granted Dr. Henderson a zoning approval for the development of his property located on Eichenfeld Drive in Brandon, Florida. The zoning approval contained a number of restrictions but generally allowed for the construction of medical/professional offices, a commercial apartment, and a heliport.2/ Specifically as to the heliport, the county commission approved the same with the following limitation, to wit: “the permitted helicopter for the site shall be a Robinson R44 or similar model subject to staff review and approval.” The Robinson R44 is the only model of aircraft that the county commission has zoned for operation at the heliport. On April 17, 2009, Dr. Henderson transferred the property by general warranty deed to KMDG-Eichenfeld, LLC. On January 1, 2017, KMDG-Eichenfeld, LLC, leased the property to Gregory Henderson, MD, FACS, Inc., for a ten-year term. On July 25, 2017, Dr. Henderson received airspace approval from the Federal Aviation Administration (FAA) for a private use heliport on the property subject to restrictions, including a designated approach and departure path. FDOT’s on-line application process requires an applicant to certify that they complied with all airport site approval conditions and that they will maintain documentation related to the application. Dr. Henderson completed the on-line application process and certified that he had rights to the property, local government authorization, and FAA approval. Dr. Henderson further certified that for the site, he had a facility diagram, a quadrangle map showing the geodetic position, and a location map. In accordance with the certification, Dr. Henderson maintained a list of VFR (visual flight rules) airports within three nautical miles and IFR (instrument flight rules) airports within 10 nautical miles of the proposed site and he, as required, sent a notice of the heliport establishment to each of the listed facilities. Dr. Henderson maintains a list of real property owners within 300 feet of the proposed heliport and sent each a letter notifying them of the proposed use. Dr. Henderson received a single response to the notification, an email listing concerns from Dr. Orrantia, who owns the adjoining property. As required, Dr. Henderson published a public notice in the Tampa Bay Times. Dr. Henderson appropriately certified that there are no solid waste facilities within 10,000 feet of the heliport’s final approach and takeoff area, safe air traffic patterns have been established, and safety and security measures have been implemented. Alice Lammert is FDOT's private airport compliance manager. On or about July 26, 2017, Ms. Lammert, in response to an email from Christopher Hill who works as Dr. Henderson’s representative, provided Mr. Hill with instructions for securing approval from FDOT of the proposed heliport site. The instructions list several steps associated with FDOT’s approval process. Step 6 of the instructions provides, in part, that “[o]nce FDOT is satisfied that all of the conditions of [Florida Administrative Code Rule] 14-60.005(5)(a-m) have been met, an Airport Site Approval Order will be issued.” Step 5 of the instructions provides as follows: Once a complete application has been submitted and all documentation requested has been received, FDOT’s review will begin. Please keep in mind that this review may take several weeks, as we conduct our own airspace analysis; determine if adequate area exists for the type of aircraft that will be operated from the site; and conduct an examination of obstacles, approach/departure paths, ownership rights, and so on. (emphasis added). On October 4, 2017, Ms. Lammert submitted to Mr. Hill a list of questions related to Dr. Henderson’s application. One of the questions asks “What is the make and model of the aircraft that will be operating from the helipad?” Mr. Hill responded “Robinson R66.” Ms. Lammert conducted an analysis of the runway and taxiway design criteria and airport design layout in light of the performance characteristics of the Robinson R66 and determined that the proposed heliport could accommodate this particular model of aircraft. FDOT did not however, perform a similar analysis for the Robinson R44, which is the only aircraft zoned for operation at the site by the county commission. Dr. Henderson testified that the Robinson R66 and R44 aircraft have similar design and performance characteristics. Dr. Henderson’s opinion as to the design and performance characteristics of the respective helicopters is not credited because there was insufficient proof offered to establish that Dr. Henderson possesses the necessary training, experience, or education to render such a technical opinion. David Roberts, FDOT’s aviation operations administrator, explained that FDOT is required to ensure that the applicant has local government authorization to construct a heliport, but the Department does not dictate what aircraft is to be used on the heliport once constructed. According to Mr. Roberts, the type of aircraft to be used at the facility is determined by the airport operator, the FAA, and the local political subdivision. Mr. Roberts also testified that the airport owner must certify during registration every two years that the airport meets the operational requirements of the aircraft that are using the facility. Ms. Lammert reviewed the FAA Notice of Heliport Airspace Determination authorizing the airspace use above the heliport. A separate analysis conducted by an FDOT contractor confirmed that, subject to the conditions and recommendations of the FAA, the private use landing area would not adversely impact the navigable airspace. On or about November 17, 2017, FDOT issued an Airport Site Approval Order for the Air-Med Eye Care and noted therein the following: The Department is satisfied that your airport, if completed in accordance with your site proposal, will meet all of the following required conditions: (1) that the site has adequate area allocated for the airport, as proposed; (2) that the proposed airport will conform to the Department's licensing or registration requirements; (3) that the proposed airport will comply with the applicable local government land development regulations and zoning requirements; (4) that all affected airports, local governments, and property owners have been notified and any comments submitted by them have been given adequate consideration; (5) that safe, air- traffic patterns can be established for the proposed airport with all existing airports and approved airport sites in its vicinity. The Airport Site Approval Order is granted subject to your compliance with the following conditions that are deemed necessary by the department to protect the public health, safety, or welfare: All operations are conducted in DAYNFR weather conditions; The landing area is limited to private-use; All helicopter ingress/egress route operations are conducted on 210° (ingress) magnetic clockwise to 030° (egress) magnetic headings, additional approach/departure route operations are conducted on 080° (ingress) to 260° (egress) magnetic headings, using the touchdown pad (TLOF) as the center of the compass rose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying the site approval application of Gregory Henderson and withdrawing the Airport Site Approval Order issued to Dr. Henderson on November 17, 2017, Site Approval Number SW2017-FLA-0172-HP. DONE AND ENTERED this 5th day of September,2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 September,2018.
The Issue The issue in the case is whether Albert E. Warner's application for an Airspace Obstruction Permit should be granted.
Findings Of Fact Charles W. Brammer owns the Tampa North Aero Park, Inc., a Florida-licensed public use landing strip located in Pasco County. The Tampa North Aero Park is surrounded by platted lots intended for use as private homesites. Albert E. Warner owns one of the lots, (Lot 123, Quail Hollow Village Subdivision) which adjoins the Tampa North Aero Park, Inc. Mr. Warner intends to construct and live in a single family home on his lot. Because the location of the proposed Warner construction exceeds certain standards, regulatory review is required and Mr. Warner’s proposed structure must be obtain a permit from the DOT. On June 18, 1997, the Mr. Warner filed his application for an Airspace Obstruction Permit with the DOT. According to Mr. Warner, the proposed structure will be concrete block with a wood frame roof, with a roof peak no more than 98 feet above mean sea level One of the requirements is that the Federal Aviation Administration (FAA) review the proposal and issue a "Determination of No Hazard to Air Navigation." The FAA has issued a "Determination of No Hazard to Air Navigation." Because the initial FAA document included incorrect site information, the FAA subsequently issued a "Correction to the Determination of No Hazard to Air Navigation." The "Determination of No Hazard to Air Navigation" sets forth the factors considered by the FAA and concludes as follows: Therefore, it is determined that the proposed structure would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities and would not be a hazard to air navigation. The FAA’s document of correction states as follows: This corrects a minor change in the latitude and longitude based on survey data provided regarding actual runway location and which moves proposal 2 feet closer to runway. Because this minor move will not change the results of the determination, a new circularization and determination was not considered necessary. All else remains same as on original determination. The Petitioner challenges the reliability of the FAA’s review of the Warner project and the determination that the proposed construction will create no hazard to airspace navigation. The Petitioner offered no credible evidence to support the assertion that the FAA study was incomplete or unreliable. Given the minor change in the relative location of the runway to the proposed Warner construction, the FAA’s correction of the initial determination without conducting an entirely new review is inconsequential. As set forth in the FAA determination, a condition of the permit requires the structure to be marked as an obstruction and lighted with a red beacon. There is no evidence that Mr. Warner is unwilling or unable to comply with this requirement. The Department reviewed the FAA determination and subsequent correction. The Department determined that the corrected location information was correct and that the FAA review included a valid aeronautical evaluation. The evidence establishes that the Department considered the required factors set forth in the applicable statute. The evidence establishes that the DOT completed the review and made the determination within the appropriate timeframes. The Department considered the nature of the terrain and height of existing structures. The land surrounding the airfield is relatively flat. Existing structures include houses across the residential street from the Warner lot, and other houses to be constructed along the airfield. Numerous trees, some located closer to the airstrip than the proposed Warner house, are as tall or taller than the proposed Warner home, except where such trees were recently cut by Mr. Brammer for reasons unknown. The Department considered public and private interests and investments in the area of the proposed construction. No public investments will be impacted. There is no credible evidence that public aviation interests will be impacted. Private investments, specifically that of the Petitioner and his airport, will not be adversely impacted by construction of the home. One witness asserted that the private investments of the other homeowners would be adversely impacted by the Warner construction, but offered no credible evidence to support the assertion. The Department considered the character of flying operations and planned development of airports. The proposed construction will have no adverse impact on the character of flying operations and planned development of airports. The Department considered federal airways as designated by the FAA and determined there would be no adverse impact because the proposed structure is below the airspace height of the federal aviation system. The Department considered whether the construction of the proposed structure would cause an increase in the minimum descent altitude or the decision height at the affected airport, and determined there would be no increase. The Department considered technological advances and determined that there are none which would be adversely impacted by issuance of this permit. The Department reviewed concerns related to the safety of persons on the ground and in the air and determined that there would be no adverse impact created by issuance of the permit. The Department considered land use density. There is no adverse impact to land use density related to this permit. The Department considered the safe and efficient use of navigable airspace. There is no adverse impact created by issuance of the subject permit. Existing objects of similar height and distance have posed no hazard to operation of the airport. Considering the airport’s characteristics, runway capability, and the types of aircraft using the facility, the proposed structure will not adversely impact the facility or any aircraft using the facility. The Department considered the cumulative effects on navigable airspace of all existing structures, proposed structures identified in the applicable jurisdictions comprehensive plans, and all other known proposed structures in the area. There is no adverse impact caused by the cumulative effects of this structure, and other proposed or existing structures. The evidence establishes that Mr. Warner has met the criteria set forth by statute for the issuance of an Airspace Obstruction Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order granting the Warner application for Airspace Obstruction Permit. The permit shall include the requirements related to lighting as set forth by the FAA. DONE AND ENTERED this 19th day of October, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1998. COPIES FURNISHED: Kelly A. Bennett, Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Albert E. Warner, III Post Office Box 7084 Wesley Chapel, Florida 33543-7084 Charles W. Brammer, General Manager Tampa North Aero Park, Inc. 4241 Birdsong Boulevard Lutz, Florida 33549 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers, Clerk Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact At all times relevant hereto, David E. Rabren was licensed as a Tampa Bay state pilot and was president of the Tricounty Pilot's Association (TRICO). At the time the movement of the OCEAN LORD occurred, there was only one state licensed pilot who was a member of TRICO. That was David E. Rabren. Other members held only federally issued pilot's licenses. Prior to the movement of the VOMAR, a second state licensed pilot joined TRICO. At present, there are four licensed state pilots and one deputy pilot associated with TRICO. The vessel OCEAN LORD arrived in Tampa Bay February 18, 1986, and was piloted by Captain Rabren to its berth at C. F. Industries (CFI). After taking on cargo, the OCEAN LORD was moved the same date to Gadsden Anchorage. During this move, Captain Murphy, a federally licensed, but not state licensed, pilot was on board. Captain Murphy is associated with TRICO. On February 21, 1986, the OCEAN LORD was moved from Gadsden Anchorage to the CSX Transportation dock at Rockport. Again, Captain Murphy was the pilot. On September 21, 1986, the vessel VOMAR was moved from Rockport to a dock at Big Bend with Captain Murphy as the pilot. Anita Rabren determined that the movement could be accomplished with a federally licensed pilot on board. On October 5, 1986, the vessel ASPEN, an American flag vessel, arrived at Tampa Bay, and the ship's agent requested TRICO provide a pilot. Due to a misunderstanding of the agent's statement that the ASPEN was coming from the west coast, Anita Rabren assumed this was from the west coast of the United States. Actually, the ASPEN's last port of call was in Korea. Had the vessel come from a west coast of the United States port, the voyage would have been a coastwise trip, and a federally licensed pilot would be required. A federally licensed pilot was assigned to pilot the ASPEN. The last port of call of the ASPEN was ascertained after the pilotages up Tampa Bay commenced, and the fact that an improperly licensed pilot was used was reported forthwith. TRICO paid a double pilot fee to the Tampa Bay Pilot's Association. Tampa Port Authority has jurisdiction over all of Hillsborough County and establishes rules and regulations for that area. They do not regulate pilotage of vessels. Many of the terminals in Hillsborough County are owned by the Port Authority, but some are privately owned such as Big Bend and Rockport, both of which are in the port of Tampa. The Port Authority controls the allocation of berths at all terminals owned by the Port Authority, but does not control the berths at privately owned terminals. The CFI terminal is owned by the Port Authority who establishes wharfage rates and docking rates at this terminal. The berths at Rockport and Big Bend are privately owned, and tariff rates are not set by the Port Authority. CSX Transportation owns a dock at Rockport where phosphate is loaded onto vessels. No wharfage or dockage charge is levied, but such charges are included in charges for the commodity loaded. Ships can clear customs at any of the terminals above noted. The Big Bend facility is under the jurisdiction of Gulf Coast Transit Company. Vessels bring coal to Big Bend for use by Tampa Electric Company. The AGRICO terminal at Big Bend is used for loading phosphate rock. All of these privately owned terminals are licensed by the Tampa Port Authority to whom they pay a fee and submit reports of their activities. The Tampa Port Authority charges a fee to vessels who load or unload cargo at the Gadsden Anchorage which is also in the port of Tampa. Section 310.002(4), Florida Statutes, defines "port" to mean, any place in the state in which vessels enter and depart. For Tampa Bay, this section lists Tampa, Port Tampa, Port Manatee, St. Petersburg and Clearwater as ports. Of those listed ports, Tampa and Port Tampa are in Hillsborough County and come under the jurisdiction of the Tampa Port Authority. No evidence was submitted showing the areas encompassed by the Port of Tampa and Port Tampa. The Port of Tampa's Terminal and Facilities Map (Exhibit 5) showing the port facilities at Tampa, Florida, does not show the facilities at Port Tampa; it shows only those facilities on the east side of the Tampa peninsula, and does not reach as far south as Big Bend. Presumably, if there are only two ports in Hillsborough County that portion of Hillsborough County west of the Tampa peninsula would comprise Port Tampa, and that portion of Hillsborough County east and south of the Tampa peninsula would comprise the Port of Tampa. If so, all of the movements here complained of occurred in the Port of Tampa. Exhibit 5 supports this conclusion. Finally, no credible evidence was presented that Respondent assigned a federally licensed, but not a state licensed, pilot to the OCEAN LORD, VOMAR and ASPEN as alleged, except Exhibit 3 which states the assignment of a federally licensed pilot to the Aspen was due to an error on the part of Captain Rabren. The direct testimony presented in this regard is that Anita Rabren assigned federally licensed pilots to those ships. Further, this determination that use of a federally licensed pilot for those movements of foreign flag vessels within the Port of Tampa was proper was made by Anita Rabren after receiving legal advice regarding the in-port movements of foreign flag vessels that can be piloted by a federally licensed pilot.
