Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Paul L. Crowder first registered with petitioner as a general contractor on April 4, 1980. He held license No. RG 0035515 at least until July 1, 1987, when it "was placed on a delinquent status for non-renewal." Petitioner's Exhibit No. 12. Respondent's license "is considered invalid for the 1991-93 licensing period." Id. On February 20, 1990, the late Dorothy Regoski accepted respondent's written proposal to construct a seawall 276 feet long to a height of four feet above mean high water on Santa Rosa Sound around the edge of her yard. She lived at 232 Brooks Street in Fort Walton Beach with her mother (to whom the house belonged). By signing the proposal, Petitioner's Exhibit No. 6, Miss Regoski obligated herself to pay $10,227.00 for the seawall, which everybody agreed was needed to replace an existing seawall that had begun to fail. She gave respondent a check for $6,600 on February 20, 1990, Petitioner's Exhibit No. 7, and agreed to pay the rest when the project was completed. Respondent Crowder testified he was too busy to begin work in February or March but he found time on April 17, 1990, to apply to the City of Fort Walton Beach for a building permit. Sometime thereafter he spent part of a day removing sand just landward of the existing seawall and severing the "tie backs" with which the top of the existing seawall had been anchored to "dead men" further landward. It was necessary to break the "tie backs" in order to install the replacement seawall against the landward side of the existing seawall. Fortunately, removal of the sand diminished or eliminated the pressure or moment tending to tip the top of the existing seawall seaward. But, perhaps mainly because of salt water "cut worms" at work on the existing wall, only some sixty percent of the existing wall remained vertical by the time Mr. Lancaster inspected it in June of 1990. On two or three occasions after the initial excavation, although never for more than a day at a time, respondent or his employees returned to the Regoski home, put in piles, and joined many of them with horizontal 3" x 6" stringers or "whalers." In mid-June, after they had failed to appear for over a month, Ms. Regoski engaged Wayne Lancaster to finish the job. Mother and daughter were understandably alarmed at the rate of erosion boat wakes, the southeast wind and the jetting action of tides created. Mr. Lancaster supplied additional whalers and repositioned others, then installed two courses of 1" x 8" planks separated by filter cloth, and tied back the new seawall to its own deadman. He charged $6200, Petitioner's Exhibit No. 11, and he and his men finished the job in a week and a half. The evidence put respondent's work at approximately two-fifths of the whole. Mr. Pelham, a professional engineer who has designed and supervised the erection of at least 100 seawalls (and who remembers the day respondent was born), put the fraction at 41%. Respondent claimed about 40%. The successor contractor testified it might have been as little as 30%. Once respondent excavated, exposing the old seawall and tie backs, acceptable construction practice required staying with the job until it was finished. Respondent's handling of this project was closely analogous to a roofer's taking a roof off and leaving the roof uncovered. Respondent conceded that the delay was not standard practice and that normally such a project should not be interrupted. He also testified that he knew the existing seawall was damaged and "fixing to go." The project should have been completed in a continuous operation, both to protect the upland against erosion and to avoid siltation of waters of the state.
Recommendation It is, accordingly, and in keeping with Rule 21E-17.002, Florida Administrative Code, RECOMMENDED: That the CILB suspend respondent's license for thirty (30) days, and thereafter until he has paid Ms. Regoski's estate two thousand five hundred seventy-three dollars ($2,573). DONE and ENTERED this 7th day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1992. Copies furnished to: William S. Cummins, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Paul L. Crowder 521 Shrewbury Road Mary Esther, FL 32569 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue for disposition in this case is whether Respondent has implemented an agency statement that meets the definition of a rule, but which has not been adopted pursuant to section 120.54, Florida Statutes.
Findings Of Fact The Board of Trustees of the Internal Improvement Trust Fund (Board) is charged with the management of state lands, including sovereign submerged lands. § 253.03(1), Fla. Stat. The Department of Environmental Protection (Department) is charged with the duty to “perform all staff duties and functions related to the acquisition, administration, and disposition of state lands, title to which is or will be vested in the Board of Trustees of the Internal Improvement Trust Fund.” § 253.002(1), Fla. Stat. The City of Titusville operates a municipal marina, which includes a 205-slip docking facility for mooring of commercial and recreational vessels (Marina), on sovereignty submerged lands leased from the Board. Petitioner owns a Florida-registered vessel which he keeps at the Marina pursuant to an annual mooring/dockage agreement. On June 9, 2009, the City of Titusville and the Board entered into a “fee waived” lease renewal and modification for a parcel of sovereignty submerged land in the Indian River (Lease). The Lease allows the Marina to operate “with liveaboards as defined in paragraph 26, as shown and conditioned in Attachment A, and the State of Florida Department of Environmental Protection, Consolidated Environmental Resource Permit No. 05-287409-001, dated December 31, 2008, incorporated herein and made a part of this lease by reference.” Paragraph 26 of the Lease provides that: 26. LIVEABOARDS: The term “liveaboard” is defined as a vessel docked at the facility and inhabited by a person or persons for any five (5) consecutive days or a total of ten (10) days within a thirty (30) day period. If liveaboards are authorized by paragraph one (1) of this lease, in no event shall such “liveaboard” status exceed six (6) months within any twelve (12) month period, nor shall any such vessel constitute a legal or primary residence. On or about July 31, 2015, Petitioner and the City of Titusville entered into the annual contractual mooring/dockage agreement, paragraph 4 of which provides that: 4. LIVEABOARDS: For the purposes of this Agreement, the term “liveaboard” is defined herein as a vessel docked at the facility and inhabited by a person or persons for any five (5) consecutive days or a total of ten (10) days within a thirty (30) day period. Pursuant to requirements of the City’s Submerged Land Lease with the State of Florida, no vessel shall occupy the Marina in this “1iveaboard” status for more than six (6) months within any twelve (l2) month period, nor shall the Marina Facility constitute a legal or primary residence of the OWNER. Petitioner asserts that the alleged agency statement regarding “liveaboard” vessels “unreasonably and arbitrarily denies me the unrestricted right to stay on my vessel by limiting the number of consecutive days during which I may occupy the vessel,” and that “[t]he Board’s non-rule policy denies me the unrestricted freedom to enjoy my vessel as a second home.”
Findings Of Fact At all times pertinent to the allegations contained herein, Petitioner, Division of Real Estate, was the state agency in Florida responsible for the regulation of the real estate profession and for the licensing of real estate professionals. Respondent was, at all times material to the issues herein, a licensed real estate salesman in this state. He was issued salesman's license 0419038 and from August 27, 1990 through September 2, 1991, was an active salesman with Scarlett Faulic & Associates located in Indian Shores, Florida. From September 3, 1991 through September 30, 1991, he was a salesman with Arn Realty Group, Inc., also in Indian Shores. Effective October 1, 1991, his license became inactive due to non-renewal and remained in that status until he renewed it on April 16, 1992 when he affiliated as a salesman with First Gulf Beach Realty, Inc. in Indian Rocks Beach, Florida. From July 28, 1992 to the date of the hearing, he was an active salesman with Bobby Byrd Real Estate, Inc. in Clearwater. Sometime prior to June 13, 1991, Ted Plihcik, presently a resident of Coram, New York and formerly the owner/occupant of the property in issue which is located in Pinellas County, Florida, met the Respondent at a garage sale at Respondent's home. Because Mr. Plihcik intended to move out of the area, he entered into a listing agreement with Respondent on behalf of Arn Realty's predecessor, under which the firm was either to rent or sell the property. This agreement was to expire on December 31, 1991, and there is no evidence it was cancelled prior to expiration. Sometime after Mr. Plihcik moved to New York, he received a telephone call from Respondent in which Respondent said he had a couple to rent the property for the rental amount previously stipulated, $650.00 per month, from which Respondent was to get a commission of 10%. Respondent indicated he would take a deposit from the tenants and that he had a signed lease. Prior to his departure, Mr. Plihcik had started to make some renovations to the property's garage. He had redone the bathroom area and was planning to make another room out of the garage. However, he never got around to completing the job or to putting in the windows. He had decided to change it back into a garage, and in fact the prospective tenants wanted a garage rather than another bedroom, so he directed Respondent to hire someone to finish the reconversion. At Plihcik's request, Respondent got several estimates for the work which Plihcik felt were too high. At that point, Respondent offered to do the work himself. Plihcik agreed and gave Respondent authorization to use the deposit money to pay for necessary materials and consistent with that agreement, on September 14, 1991, by letter, Plihcik authorized Arn Realty Group to release money to Danley for the "alterations and repairs he is doing to my property...." Because the Isabelles did not pay the full two month deposit, Mr. Plihcik later revised the authorization to allow Respondent to use rent money as well, but he did not relieve Respondent from the requirement to turn any money received as rent over to Arn Realty upon receipt and thereafter get payment from the company. It is obvious that Plihcik was under the opinion that the deposit money Danley had received from the tenants had been turned over to the broker, Arn Realty. Mr. Plihcik tried unsuccessfully repeatedly to contact the Respondent requesting a copy of the lease agreement, copies of receipts for materials purchased for the garage work, or anything else pertinent, even sending at least one letter by certified mail, the receipt for which bore what Plihcik recognized as Respondent's signature. He received no responses. Sometime in early August, 1991, Deborah Isabelle and her husband rented Mr. Plihcik's house through Respondent and put up a [portion of the 1st and last month rent. They also signed a lease which called for rent at $525.00 per month but, notwithstanding many requests for one, never received a copy. Each time they asked, Respondent would say he would get them one but he never did. At the time they rented the property, the garage was under repair and, after some negotiation, it was orally agreed upon that the work would be completed by move-in time, September 1, 1991. At one point, Respondent asked the Isabelles to pay the rent in cash because it would be easier for him to buy the things needed for the repair work he was to do. They acceded to this request for a while, writing some checks to the supermarket for cash to pay Respondent, but got only one receipt. Because they were uncomfortable with this cash arrangement, they asked Respondent for the name of the owner of the property and he replied, merely, "Ted." On one occasion, mail for Mr. Plihcik from a real estate agency came to the house. Ms. Isabelle thereafter got Mr. Plihcik's New York address from the County records, contacted him, and asked him if he had received his rent. She received a negative reply. She also asked him about the lease they had signed and he related he had not received one of those, either. In fact, when she called, Mr. Plihcik didn't know who she was he had never heard their name. During that conversation, Ms. Isabelle advised Mr. Plihcik that they had not received any of the things Respondent had promised; that he was also asking them for cash; and was frequently at the house. Mr. Plihcik said he'd take care of it but no more was done. In November, 1991, Ms. Isabelle set up a three way telephone call between the Isabelles, Mr. Plihcik and the Respondent. During that call, Respondent claimed he was doing the work promised; that he had mailed Mr. Plihcik some money in cash several weeks previously and could not understand why it had not been received. The lease agreement, at paragraph 6, dealing with maintenance and grounds upkeep, purports to require the Isabelles "... to help convert 3rd bedroom back to garage in lieu of $650.00 rent." Though Respondent contends the rent was reduced from $650.00 per month, as was called for in the listing agreement, to $525.00, conditioned upon the tenants' help with the work on the garage conversion, there is no evidence that Mr. Plihcik ever agreed to accept less than the $650.00 per month rent. In addition, Ms. Isabelle claims they did not agree to do any work and the lease did not contain that provision at the time they signed it some 2 or 3 weeks after they moved in. It is found that Respondent's contention is without merit even though Mr. Isabelle did take down some 2x4's so he could install his tool bench. Over the period of their occupancy, the Isabelles paid Mr. Danley a total of $1,531.50 by check directly or by check written for cash and turned over, as well as an additional $400.00 in cash. Six hundred dollars of the checks were made payable to Arn Realty, and it appears they were deposited to that company's account. The balance of the checks and the cash were either payable to Respondent directly or, in the case of the Kash & Karry checks, written for cash to give to him. Of the $400.00 Arn Realty check, $300.00 was paid over by company check to Respondent for repairs to the instant property on the same day as the Isabelles' check was deposited to the company account. Respondent admits he received a total of $1,355.00 from the Isabelle's, either directly or indirectly, but claims all of it was used for work on the house. He also claims he is still owed $1,001.00 from Mr. Plihcik which includes $630.00 in real estate commission owed the broker. Nonetheless, Mr. Plihcik claims he received none of the money paid to Respondent, nor has Respondent presented any evidence to show the money was spent on either materials or labor for the garage reconversion. Mr. Arn, the broker supervising Respondent during the time is issue here claims he had no knowledge Respondent had obtained a tenant for Mr. Plihcik before he got Plihcik's letter. His records show a listing agreement for the property which calls for a rental commission in the event the property were leased by the company. In this case, the commission would be paid to the company, not the salesman, and would be deposited to the company's escrow account for later split with the associate involved. At no time would it be appropriate for the sales associate to collect and disburse funds without going through the broker and he would not do it that way. He did not authorize it here. Mr. Arn admits to having written at least one check to Respondent from money's received from the tenant for work to be done on the Plihcik property. He released that money only after he received a letter from Mr. Plihcik authorizing the release of funds to Respondent. All the money he received from the checks he received in August, 1991, in the amount of $600.00, was paid out to Respondent for repair costs. When he subsequently received a letter from Mr. Plihcik regarding cash which Respondent claimed he had mailed directly but which was not received, Mr. Arn replied in writing that he had not authorized Respondent to either receive or disburse funds directly. The Isabelles moved out of the house in either December, 1991 or January, 1992. By that time, Respondent had done very little work on the property. Some building materials were still on the property which Mr. Plihcik said he had left there. They are sure Respondent had not provided it. Mr. Carl Carpenter, a registered contractor and home inspector examined the property in question in March, 1992 for a potential purchaser. At that time, he found the garage in the process of being converted to a room. The framing had been installed as had the windows, and the sheet rock was partially installed. There was also a small bathroom which was not operating properly. It was his opinion that the construction was progressing from garage to room, and not the opposite. Mr. Carpenter was also of the opinion that to convert the room back to a garage would cost somewhere in the range of $600.00 and should take about 2 days. It would about double that to reinstall the bath. The bath he saw on the property was old. Respondent offered an estimate to reconvert the garage from a contractor obtained in August, 1991 which showed a total price of $1,606.00. While this is substantially more than the price cited by Mr. Carpenter, whose estimate seems rather out of line, cost is not the issue. The important part of Carpenter's testimony relates to his belief that the work in progress seemed more of conversion to a room rather than return to a garage and tends to indicate Respondent had done little if any work on the property. Ms. Sutton, the Division's investigator, interviewed Respondent 3 times regarding this matter and found his statements to be inconsistent. While he claimed he had done some work on the property and had not finished it, he could not give her the exact amount he had received from the Isabelles. He also gave her a list of what he had spent the money he had received on, but had no receipts from workers or suppliers to back it up. Mr. Danly claimed he had sent cash to Mr. Plihcik but denied receiving any cash payments from the Isabelles. He claimed he gave them receipts for what they gave him, but they have no memory of receiving any. Mr. Danley takes no issue with the facts as outlined by Ms. Isabelle except as to the remodeling of the garage which he claims is not covered by the restrictions contained in Chapter 475, Florida Statutes. He claims that the payments made by the Isabelles were authorized by Mr. Plihcik to be kept by him as compensation for the repair work on the garage and not to be transmitted to Plihcik as owner because the work needed to be done and Plihcik did not have the money to pay to have it done. He also asserts that the lease was signed by the Isabelles with the requirement in it that they would help with the work as a condition of reducing the rent. He delayed starting on the remodeling until he got the money from Mr. Arn, which, at least in part, was as early as August 29, 1991. When he got that check, he started work. Originally, he states, he hired 2 young men to do the dry-wall, but the bathroom had to be framed before the dry wall could be installed. Then the water heater was installed and the power line installed for that, all of which he claims he did himself. The framing and closing up of the old door to the kitchen was done by Respondent with the assistance of a contractor. All of this, he asserts, was done in September and October, 1991, contrary to the Isabelle's claim that the only work done prior to their departure was the installation of some dry wall. Some materials were already in place but some of that had been damaged and had to be replaced. He claims he had 3 helpers to do all this work and paid them in cash. The sink was put back into its original position and he got the material to reinstall the toilet which he was unable to do because of back problems. Mr. Danley denies ever asking the Isabelles for cash or loans. He claims the only payments he received were in the form of checks payable to him or to Arn, and all money received from them was used for the work. He also admits to collecting the rent due in October which, he claims, was used for the restoration project. The only checks introduced into evidence not payable to Arn or Danley are 3 payable to Kash & Karry and of these, two are endorsed by Daniel Isabelle and one bears no endorsement at all. These are the checks which Ms. Isabelle claims were made to provide cash for Respondent at his request. Taken together, the evidence as presented by both sides tends to support Ms. Isabelle's story. Mr. Danley claims he did not finish the work because he could not find a door for the garage. He claims to have called many places but was unable to find a single garage door. A call to a Scotty's building supply store in that area revealed a single garage door was readily available, though by special order. Finally, he bought one from a builder in St. Petersburg for $235.00 which was paid in cash. The price included installation the following morning, and the site was already prepared. However, the builder never showed up with the door and he lost the payment. On balance, Respondent's account of the matter, unsupported as it is by any direct evidence beyond his own testimony, is found to be less than credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that a Final Order be issued by the Florida Real Estate Commission suspending Respondent, Paul Andrew Danley's license as a real estate salesman in Florida for a period of 3 years under such terms and conditions as are considered appropriate by the Commission; imposing a total administrative fine of $2,000.00; and imposing a reprimand. RECOMMENDED this 1st day of March, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 1st day of March, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-5598 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. Accepted. 6. - 8. Accepted and incorporated herein. 9. Accepted and incorporated. 10. & 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. 15. & 16. Accepted and incorporated herein. 17. Accepted but redundant with 4. 18. Accepted and incorporated herein. 19. - 22. Accepted and incorporated herein. 23. Accepted. 24. & 25. Accepted. 26. Accepted but not material to any issue. 27. Accepted and incorporated herein. 28. - 30. Accepted and incorporated herein. 31. - 33. Accepted and incorporated herein. 34. Accepted and incorporated herein. 35. Accepted but mot material to any issue. 36. & 37. Accepted and incorporated herein. 38. - 40. Accepted. 41. Accepted and incorporated herein. 42. Accepted and incorporated herein. 43. - 46. Accepted and incorporated herein. 47. Accepted. 48. - 53. Accepted and incorporated herein. 54. - 56. Accepted and incorporated herein. 57. Accepted. FOR THE RESPONDENT: 1. A - E. Considered more to be either argumnent on the state of the evidence or conclusions of law. Not accepted as a statement of fact as finally found. COPIES FURNISHED: Janine B. Myrick, Esquire DPR - Division of Real Estate 400 West Robinson Street, Suite N-308 P.O. Box 1900 Orlando, Florida 32802-1900 Gilbert P. McPherson, Esquire 1822 Drew Street, Suite 8 Clearwater, Florida 34625 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802-1900
Findings Of Fact On August 13, 1984, Dax and Trin filed an application with DER, pursuant to Chapters 253 and 403, Florida Statutes, for a permit and water quality certification to construct a 28-slip docking facility in Canal No. 8 in Mashes Sands, Panacea Shores, Wakulla County, Florida. Dax and Trin's application was complete on September 19, 1984. On December 14, 1984, DER issued its letter of intent to issue the requested permits for a "20-slip docking facility," and requested that Dax and Trin publish notice of the proposed agency action as required by Section 403.815, Florida Statutes. Notice was published December 24, 1984. The notice advised the public of DER's intent to issue the requested permits to "construct a 20-slip dockage facility," and advised substantially affected persons of their right to a Section 120.57, Florida Statutes, hearing on DER's proposed agency action. Petitioner, Jean McMillan, timely filed a petition for formal administrative proceedings. Petitioner is a resident of Wakulla County, Florida, and is the record owner of real property adjacent to that of Dax and Trin and claims a right of access to Canal No. 8. Petitioner has used, and continues to use, the waters of Canal No. 8 and of Ochlockonee Bay for boating, fishing and recreation. The Marina The permit sought by Dax and Trin would allow it to construct a 28-slip docking facility consisting of a 357 foot long by 2 foot wide floating pier parallel to an existing concrete bulkhead on the west side of Canal No. 8, up to fourteen 12 foot by 2 foot wide floating finger piers extending 60 degrees from perpendicular into the canal, and 14 mooring pilings centered between the outer limits of the finger piers. The floating pier and finger piers would be constructed of pressure treated wood resting on styrofoam, and would be secured to pressure treated pilings. No fueling, electrical or water hookups, or other service-type amenities are proposed for this facility. The boats to be docked at the facility would be less than 30 feet in length. The 28 slips proposed by Dax and Trin in this proceeding are part of a larger marina development of at least 48 slips, which Dax and Trin proposes to develop in the canal adjoining a 27-unit condominium development it is presently constructing. Dax and Trin proposes to construct the additional 20 slips, with the same means of construction, immediately adjacent to the proposed 28 slips and parallel to the existing bulkhead, under a claimed exemption for reconstruction and restoration. Additional slips, beyond the first 48, are contemplated by Dax and Trin's development plans. In connection with the 20-slip facility Dax and Trin proposes to provide the following services and amenities: bait and tackle shop, upland fish cleaning stations, public boat fueling facilities, sewage pump-out station, picnic tables, gazebo, snack bar, and restrooms. All services and amenities will be available to the public, including the users of the adjacent 28 slips which are the subject matter of these proceedings. DER's December 14, 1984, Letter of Intent proposed to issue the permit subject to the following conditions: A dockmaster shall: supervise dockage and vessel operations; ensure that all dockage users are familiar with dockage rules, especially those pertaining to vessel discharges; and, be responsible for the clean-up correction of all unauthorized discharges; There shall be no discharges into the canal or bay waters of fish carcasses, food wastes, litter, sewage, fuel, oil, grease, paint or thinner, varnish or other materials other than clean water; Waste containers shall be located along the dockage and emptied regularly to prevent their spill-over; Any fish cleaning stations shall be located on the uplands and all fish carcasses shall be placed in upland containers, and shall not be disposed of in the canal or bay; The dockage user agreement shall contain and stipulate the operational controls. Dax and Trin has agreed to comply with all conditions established by the DER Letter of Intent and at final hearing, agreed to comply with the following additional conditions: OPERATIONAL CONTROLS. The following operations controls shall be implemented immediately after construction of the dockage and shall be applicable to the 28 slip docking facility which is the subject of this permit and the adjoining 20 slip docking facility. Dockmaster. There will be a responsible dockmaster on duty at all reasonable hours who will supervise dockage and vessel operations, ensure that all dock users are familiar with dockage rules and be responsible for proper operation. Fuel Storage and Equipment. The fuel storage area shall be located on the upland site. The fuel tanks shall be provided with automatic cut off valves and each dispenser will be equipped with an automatic knock off valve. In the event a dispenser is knocked off the dock or the fuel line ruptured, the automatic valves will minimize fuel spill. Any time the docks are not attended, the fuel lines will be shut off at the tanks. Fuel Spill. Any time fueling opera- tions are under way they will be continuously attended by docking personnel. This will not be a self-service fueling operation. Fueling procedures include the following: The quantity of fuel desired or required to fill each vessel will be determined prior to fueling. Extreme caution will take place as tanks approach full to prevent overfilling. A nozzle soak up ring will be used with this operation. Any over-fill or slop-out will be wiped up, not washed off. The spill containment and clean-up plan shall be posted at the fuel and supply shed. All fuel spill equipment and material will be located on the dock facilities in the fuel and supply shed for ready access and quick deployment. The spill equipment will include absorbent material that responds to fuel products. All staff shall be trained in the use of the equipment, and shall be instructed to notify any affected agencies (Department of Natural Resources, Marine Patrol, U.S. Coast Guard, Department of Environmental Regulation). Trash Disposal and Removal. Overboard discarding of trash in the dock or canal area shall be prohibited. Trash receptacles will be placed throughout the docking facility and maintained in a clean and sanitary condition. These receptacles will be secured so as to prevent accidental dumping or tipping during inclement weather. Dock personnel will monitor these receptacles so that they do not have the opportunity to become over full. The full or partially full containers will be removed from the docking facility area. This trash will be taken upland and disposed of in an approved manner. Any trash noted on docks will be removed at once. Discharge of Bilge Water. Discharge of bilge water into the dock or canal area shall be prohibited. Waste Holding Tank Storage and Pump Out Procedures. Overboard pumping or dis- charge of waste into the docking or canal area shall be prohibited. A portable sewage pumpout will be installed and utilized. The expense of this service will be covered by regular assessments. The portable sewage pumpout will be made available to the general public. The service will be provided as follows: User will notify dock personnel that pumpout is desired. When dock personnel advise they are ready, the vessel will be moved to the designated area in the service area. The vessel will be adequately secured to the dock in the service area before pumpout will be hooked up. The sealed pumpout equipment will be properly hooked up to the vessel prior to turning on the equipment. This system will empty directly into lift station then to sewer system. This equipment will be attended to at all times to ensure proper operation during pumpout. Once equipment has been removed from the vessel, the vessel will be allowed to continue on. Fish Cleaning. Fish cleaning in the docking area shall be prohibited, and the placement or construction of fish cleaning facilities on the docks shall be prohibited. A designated cleaning area shall be provided upland. This area will provide rinse water that goes directly to the sewer system of the adjoining condominium. A macerator will grind up fish parts so that the system will not be clogged. Larger fish remains will be packaged for removal by sanitation personnel as part of normal trash removal services in connection with the condominium operation upland. Boat Cleaning. Detergent cleaning of boats in the dock or canal area shall be prohibited. Discharges. Discharges of fish carcasses, food wastes, litter, sewage, fuel, oil, grease, paint, thinner, varnish or other materials into the canal or the docking area shall be prohibited. Restroom Facilities. Restroom facilities shall be located upland in an area convenient to the docking facilities. Operation of Boats. Operating boats in a careless, reckless or negligent fashion shall be prohibited. Maintenance and Repair. There will be a requirement that all boats and equipment be kept and maintained in good order. The painting, repair or maintenance of any vessel hull or engine within the docking or canal area shall be prohibited. Boat Size. The restrictions will provide that no slip will be used to store a vessel that, because of its size, would extend or encroach over a storage or stern line established to provide a 27 foot traffic lane that is consistent with the property rights of third parties having an interest in the canal. Liveaboard Vessels. The use of vessels for living quarters, temporarily or otherwise, shall be prohibited. ENFORCEMENT. Restrictions. All boat slips will be subjected to covenants, conditions and restrictions that will be binding upon and run with the property. The restrictions will incorporate all prohibitions and controls set forth in Section I above. Association. The restrictions will require all boat owners to be members of an Association that will be primarily responsible for enforcement of all restrictions. Addi- tionally, any individual owner will have the right to individually enforce restrictions. Fines and Penalties. The restrictions will establish a system of fines and penalties for any violations. Penalties will include the suspension of rights to use the facilities. Assessments. The restrictions will provide for monthly and special assessments against all boat slip owners in order to pay the expenses incurred in connection with the operational controls and provide funding for deferred maintenance, the replacement of equipment used in the operational controls, the repair and maintenance of such controls and dock personnel wages and salaries. Liens. The restrictions will provide for lien rights of the Association to enforce assessments and penalties. Injunctive Relief. The restrictions will provide for the right to seek and obtain injunctive relief to prevent continuing or repeated violations or the failure to abide by penalties imposed, e.g., suspension of rights to use facilities. Responsible Party. The restrictions will provide that the boat slip owner will be responsible, and be subject to fines, penalties and assessments, for the acts of the owner's lessees, guests or invitees who may use the boat slip. Notice. Each purchaser of a boat slip will be provided a copy of the restrictions at or prior to the closing of the sale. Leases. Any lease of a boat slip which is not sold to a condominium owner shall incorporate the restrictions and provide that any violation of any restriction shall constitute a default under the lease by the lessee. Right of First Refusal. The restrictions shall provide that the Applicant, the Association and the remaining boat slip owners will have the right of first refusal in the event an owner of a boat slip desires to sell the boat slip to someone other than the Applicant or another condominium owner. Dax and Trin's plans for the marina complex were still at an evolutionary stage at final hearing. Dax and Trin's owner, Clay Harris, contemplates owning and operating the bait and tackle shop, snack bar and public fueling facilities. He, and Dax and Trin, contemplate selling 47 slips to condominium owners. The remaining slip will be used in conjunction with the fueling operations. If the slips are not sold, they will be leased to the general public. If sold, there are no restrictions on subleasing. The developer reserves the right of first refusal on slips offered for resale, and the right to lease those slips. The marina complex, apart from a desire to sell slips to condominium owners, has none of the characteristics of a private docking facility for residential owners. Instead, it has all the indicia of a public marina, with the attendant traffic such a facility would produce. The Marina Site Canal No. 8 of Panacea Shores (canal) is a man made navigable water body which opens into Ochlockonee Bay, a Class II water body, at a point where shellfish harvesting is prohibited. The canal is a Class III water body. The canal is one of a series of similar residential canals in the area. The east side of the canal is totally developed with single family residences. Dax and Trin and Petitioner plan to develop the west side of the canal. The canal is a dead-end canal. It is approximately 52 feet wide where it opens into Ochlockonee Bay. From the mouth of the canal, it runs in a northerly direction for approximately 240 feet, with widths varying from 65 feet to 80 feet, then north-northeast for approximately 270 feet, with a width of approximately 90 feet, and then an additional 420 feet to the canal's terminus, with widths of 66 feet to 77 feet. The depths of the canal are irregular; a result of imprecise dredging. A substantial portion of the canal bottom has been dredged below -5 feet mean low water, with the deepest portions lying towards the terminus of the canal; the site of the proposed 28 slips. Canal depths vary from areas exposed at mean low water (-0.5 feet NGVD) to depths of -8.1 feet mean low water (-8.6 feet NGVD). The lack of continuity in the canal bottom, especially in light of the fact that depths at the mouth of the canal are less than those at its terminus, combined with the poor flushing rate exhibited by the canal, raise serious questions regarding the propriety of the site for a marina. The hydrographics of the canal, under its present physical configuration, establish the existence of quiescent areas where materials suspended in the water column could settle out and cause or contribute to water quality degradation in the canal. The flushing rate of the canal is poor. The evidence establishes that the rate at which the canal flushes would range from one to two days at its mouth, and up to 30 days at its terminus. Such a slow flushing rate would aggravate the problem of suspended particles settling out onto the canal bottom, and could contribute to a deterioration of dissolved oxygen in the water column. The biological community in the canal is in good health, in a stable equilibrium, and similar to that in the adjacent waters of Ochlockonee Bay. Shrimp, barnacles, and several types of encrusting, filtering organisms as well as sheepshead, killfish, Fundulus, mullet and redfish are found in the canal. In addition, juvenile crustaceans including blue crab are present. Given the hydrographics of the canal, the issue presented is whether reasonable assurances have been given that the short and long term effects of the proposed facility will not impact adversely on water quality or marine resources. Areas of Concern The major areas of concern raised by Petitioner regarding the proposed facility and its operation are dissolved oxygen (DO), bacteriological quality, oils and greases, and heavy metals associated with copper leaching from antifouling paints. Petitioner voices concern with bacteriological quality predicated on evidence that if one boat were to flush its toilet in the facility, a violation of fecal coliform and total coliform standards would result. Petitioner's concern is legally unpersuasive. It is unlawful to discharge wastes into the waters of the state. It is presumed that people will observe and abide by the law. Atlantic Coast Line Railroad Co. v. Mack, 57 So.2d 447 (Fla. 1952). Further, Dax and Trin has agreed that overboard pumping or discharge of waters or bilge waters into the dock or canal area be prohibited. Oils and greases, and heavy metals, in light of the hydrographics of this canal, raise a serious question. The best maintained boats will seep small amounts of oils and greases into the waters. Copper bottom paints, used by virtually all boat owners who permanently moor their boats as opposed to trailering them, will leach minute quantities of copper into the waters over the course of the paint's life expectancy. Twenty-eight boats moored in the canal, much less 48, even assuming their regular usage outside the canal, may be reasonably expected to inject oils and greases, and copper, into the canal's waters which, because of its hydrographics, will not be dissipated. Because of the canal's quiescent nature, operation of the proposed facility will violate state water quality standards for copper. Dissolved oxygen (DO) degradation is an additional concern. Because of the lineal area of the canal occupied by the proposed facility, and because of oils and greases which could be expected to eventually mix with the bottom sediments and scavenge oxygen from the water column, violations of the DO standard can be reasonably expected. DO in the water column of a water body such as the canal comes principally from the atmosphere. Reaeration occurs at the surface of the waters, and is intensified as the air circulates over the waters causing turbulence. The proposed 28-slip facility would preempt about 10 percent of the surface area of the canal. The additional 20 slips proposed would, if all 48 slips were occupied, preempt 30 percent of the canal's surface area. Because the boats and docks will screen off the winds from the surface of the canal, air circulation near the surface will be reduced and reaeration impeded to such an extent that degradation of DO may be reasonably expected. Dax and Trin has failed to affirmatively provide reasonable assurances that the construction and operation of the proposed facility will not violate state water quality standards for DO and copper. Dax and Trin's reasonable assurances assumed a uniform canal depth of -5 feet MLW, which would assure a good flushing rate for the canal. The evidence clearly establishes that a substantial portion of the canal has been dredged well below -5 feet MLW, and that the flushing characteristics of the canal are poor. Dax and Trin's reasonable assurances further relied on two water quality samples which are totally unreliable. The first water quality sample, taken November 1983, lacks reliability since the equipment was not shown to have been calibrated, and temperature and salinity measurements were not reported to correspond to DO readings. The second sample, taken April 12, 1985, lacks reliability because the DO levels reflected are 17 percent higher than the thermodynamic equilibrium value that could be obtained at the reported temperature and salinity levels if there were no BOD in the water. In fact, the same sample reflects a BOD level in the range of violations of DER Class III standards. Petitioner presented competent evidence that, based on the hydrographics of the canal, frequent violations of the state's DO standards could be reasonably expected during the months of May through October. The construction and operation of the proposed facility would contribute to and exacerbate the DO violations. Dax and Trin has presented no evidence with regard to anticipated public benefits of the proposed facility that might tend to offset the expected adverse impacts of the project. The additional areas of concern raised by Petitioner; erosion of the opposite bank of the canal and resultant resuspension of particulate caused by boat operation, navigational problems, and reliability of Dax and Trin to carry out its management plan, are without merit.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material hereto, Respondent was a certified pool contractor, holding license no. CP-C033753, issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. At all times material hereto, Respondent's certified pool contractor's license qualified Artistic Pools and Spas, Inc. with the Florida Construction Industry Licensing Board. On or about May 19, 1986, Respondent, d/b/a Artistic Pools and Spas, Inc. entered into a contract with Joseph and Joyce Malinoski for the construction of a swimming pool at 31 Sea Harbour Drive, Ormond Beach, Florida for a contract price of $9,737.75. The contract required a down payment of ten per cent (10 percent) of the contract amount ($973.78) which was paid by the Malinoskis on May 19, 1986. The Malinoskis resided in Massachusetts at the time they contracted for the swimming pool with Respondent and had contracted for the construction of a home in Ormond Beach, Florida to begin upon the pool shell being in place. The Malinsokis returned to Massachusetts upon execution of the contract expecting Respondent to commence work on the pool two weeks after he was notified by the builder that the survey was completed and the benchmark in place. On or before June 18, 1986, Respondent contacted the Malinoskis by phone to advise them that the pool was under construction, that Respondent was ready to start pouring concrete, and that he needed the next two (2) installments (20 percent due on day of excavation and 35 percent due on day of concrete shell installation) in the amount of $5,355.76. On or about June 18, 1986, the Malinoskis forwarded a cashier's check in the amount of $5,355.76 made payable to Respondent with the understanding from Respondent that the pool was under construction. On or about June 25, 1986, the Malinoskis were advised by their building contractor that the pool was not under construction. On or about July 5, 1986, the Malinoskis returned to Ormond Beach and found that the pool was not under construction. Although the business phone at Artistic Pools and Spas, Inc. had been disconnected, the Malinoskis ultimately located the Respondent but were unable to resolve the problem until after a complaint had been filed. In early August, 1986, an agreement was reached with the Malinoskis, Respondent and David Larsen whereby Respondent would furnish the labor to build the pool, Larsen would pay the bills and the Malinoskis would pay the balance owed on the contract to Larsen and at end of construction Larsen would give the Malinoskis release of liens. The pool was constructed without the Malinoskis having to pay any additional money on the contract. The money used by Larsen to purchase materials above the amount paid to Larsen by the Malinoskis was repaid to Larsen by Respondent. Respondent supplied all the labor to construct the pool. The testimony of Respondent, which I find credible, was that the funds received by Respondent were frozen due to an Internal Revenue Service levy on the Respondent's business account which resulted in the IRS taking all the funds in the bank account, including the money from the Malinoskis. There was insufficient evidence to show that Respondent diverted the Malinoskis' funds or that the Respondent was unable to fulfill the terms of the contract. On or about November 15, 1985 Respondent, d/b/a Artistic Pools and Spas, Inc. contracted with John and Louise McGowan for the construction of a swimming pool and spa at 1266 Robbin Drive, Port Orange, Florida for an original contract price of $11,500. These were 2 addendums to the original contract bringing the total contract price to $13,005.75. The contract provided for the spa to be 7 feet long by 5 feet wide with a depth ranging from 18 inches to 36 inches. As constructed, the spa was 5 feet long by 5 feet wide with a depth of 44 inches. The spa was also unlevel resulting in water spilling on to the deck rather than into the spillway to the pool. The therapy jets were located too deep in the spa to allow them to function properly. The spa has never been operational. Respondent was aware of the deficiencies in the construction of the spa but failed to correct them. The deck around the pool was not properly finished in that it is uneven and rough in several locations and is pitched toward the pool rather than away from the pool. The deck also has several facial cracks (not structural) which indicate a nonuniform thickness. As contracted, the pool was to have 3 return fittings of which only 2 were installed. The contract called for the installation of a heater by the Respondent. Although the heater was installed, it was improperly placed resulting in the inspector putting a "red tag" on the heater and having the gas company disconnect it. The McGowans have paid all but $575 of the contract price but refuse to pay the balance until corrections are completed. Respondent was aware of the deficiencies in the construction of the pool but failed to correct them. The evidence is clear that Respondent failed to properly supervise the construction of the McGowans' pool and spa, thereby resulting in poor workmanship in the construction of the pool and spa.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Florida Construction Industry Licensing Board (Board) enter a final order finding Respondent guilty of violating Section 489.129(1)(j) and (m), Florida Statutes and for such violation it is Recommended that the Board assess the respondent with an administrative fine of $500.00 and suspend the Respondent's pool contracting license for a period of two (2) years, stay the suspension, and place Respondent on probation for a period of two (2) years, provided the Respondent pays the administrative fine of $500.00 within sixty days of the date of the Final Order. It is further Recommended that the charges of violating Section 489.129(1)(h) and (k), Florida Statutes be DISMISSED. Respectfully submitted and entered this 17th day of September, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1987.
Findings Of Fact On March 10, 1986, Respondents, Charles R. Moeller and Julia Moeller (Applicants) entered into a consent order with Respondent, Department of Environmental Regulation (Department) pursuant to which their request for an "after the fact" permit to construct an 5-slip docking facility in Florida Bay, Upper Matecumbe Key, Monroe County, Florida, was granted. Petitioners, James E. Williams and Charles W. Causey (Protestants) filed a timely request for formal administrative review of the Department's action. The Applicants are the owners of a 2.2 acre parcel of property situated on the northwestern side of central Upper Matecumbe Key, with approximately 280' frontage on Florida Bay. Since 1983, the Applicants have sought authorization to construct a multi-family dock facility for use in conjunction with their plans to develop the uplands as a condominium community. Protestants, James E. Williams and Charles W. Causey, are neighbors of the Applicants. Mr. Williams' property abuts the north boundary of Applicants' property, and extends northerly with 230' frontage on Florida Bay. Mr. Causey's property abuts the north boundary of Mr. Williams' land, and extends northerly with 230' frontage on Florida Bay. Protestants have used, and use, the waters adjacent to their residences, the project site, and Florida Bay for fishing, swimming, boating and other recreational pursuits. Protestants have standing to maintain this action. Background On February 28, 1983, Applicants filed their first request with the Department and the Army Corps of Engineers (Corps) for authorization to construct a docking facility to serve their proposed uplands development. That application sought authorization to construct a 10-slip docking facility, roughly "L" shaped, with a main pier extending into Florida Bay in a westerly direction and measuring 90' by 5', and the terminal section of the dock running southerly parallel to the shore line and measuring 100' by 5'. A row of 11 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 10 boat slips. As proposed, the facility was less than 1,000 square feet (sq. ft.), and exempt from the Department's permitting requirements. 1/ The Corps declined, however, to permit the facility as proposed. Noting that "a mixture of lush vegetation including mixed searasses and the hard corals" was located in the 2' to 3' MLW (mean low water) docking area, the Corps requested that the Applicants extend their pier further offshore to create dockage in waters of no less than -5' MLW depth. Consistent with the Corps' request, Applicants modified their proposal by extending their pier 170' offshore. In all other respects, their proposal remained unchanged. On August 12, 1983, Applicants received Corps' approval for their modified docking facility; however, their extension of the pier increased the docks' square footage to over 1,000 sq. ft., and subjected the project to the Department's permitting requirements. Accordingly, on October 7, 1983, Applicants filed a request with the Department for authorization to construct the dock facility approved by the Corps. On November 7, 1984, the Department issued its intent to deny the requested permit predicated on its conclusion that, inter alia, degradation of local water quality was expected, as well as destruction of marine habitat and productivity to such an extent as to be contrary to the public interest. Although advised of their right to request formal administrative review of the Department's proposed action. /2 Applicants took no action. On December 13, 1984, the Department entered a final order, which adopted the reasons set forth in its notice of intent to deny, and denied the Applicants' requested permit. The current application On January 24, 1985, Applicants filed their request with the Department for authorization to construct the docking facility which is the subject matter of these proceedings. The application sought permission to construct an 8-slip 3/ docking facility of the same configuration as previously applied for, but with a main pier measuring 170' by 4', and a terminal section of 79' by 4'. A row of 9 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 8 boat slips. Applicants still proposed the same wood construction, and wood dock piles, as well as using the terminal section of the dock as a batterboard type breakwater by attaching heavy boards to the waterward side of the dock. 4/ As proposed, the dock facility was less than 1,000 sq. ft. and exempt from the Department's permitting requirements. Accordingly, on January 30, 1985, the Department issued the Applicants a copy of their application marked "EXEMPT FROM DER D/F PERMITTING PER FAC RULE 17-4.04(9)(c)," and apprised the Applicants of the need to secure approval from the Department of Natural Resources (DNR) for use of state-owned submerged lands. Applicants promptly applied for DNR approval. On February 22, 1985, they received their first completeness summary, which was responded to on April 26, 1985, and on September 4, 1985, they received their second completeness summary, which was responded to on October 15, 1985. Finally, on December 5, 1985, Applicants received DNR approval conditioned upon Applicants execution and recording of a 10' conservation easement along the shoreward extent of Applicants' property to prevent the construction of any further dock facilities. Applicants duly executed and recorded the conservation easement. On December 24, 1985, Applicants received their Monroe County building permit, and commenced construction on January 22, 1986. On January 23, 1986, Protestants contacted the Department's local environmental specialist, David Bishof, to complain of the construction. Mr. Bishof promptly telephoned the applicant, Mrs. Moeller, and advised her that the subject waters had been designated Outstanding Florida Waters (OFW), and that docks in excess of 500 sq. ft. were no longer exempt. 5/ At this point in time, only 6-8 pair of pilings had been set. Notwithstanding Mr. Bishof's advice, Applicants continued to construct the dock facility until all pilings were in place and 500 sq. ft. of the main pier area was decked. On March 10, 1986, the Department and Applicants entered into the consent order which is the subject matter of these proceedings. That order granted the Applicants an "after the fact" permit to construct their 8-slip docking facility, and granted substantially affected persons the right to petition for formal administrative review. The project site The waters of Florida Bay which abut the Applicants' 280' shoreline are classified as Class III waters and have, since May, 1985, been designated as Outstanding Florida Waters (OFW). At Applicants' shoreline, erosion has cut an escarpment into the limestone such that the land's elevation drops abruptly from approximately 1' above MH to 2'-3' below MHW. Along much of the shoreline, erosion has undercut the limestone, forming small cliffs with an overhang of up to 5'. Very little vegetation exists on the exposed edge of the solution-faced limestone which forms the Applicants shoreline. What does exist consists of a few moderate to small red and black mangrove trees. On the face of the shoreline escarpment a rich biota is found, which includes star arene, bearded periwinkles, and star coral. A narrow band of turtlegrass, with some Cuban shoalweed, is found at the base of the escarpment. At 50' from shore along the path of the proposed pier, 6/ the depth is 4+- MHW and the bottom consists of gently sloping bedrock, with a thin layer of sediment. Sparse vegetation, consisting of patches of turtlegrass and Bataphora are found at this point, along with a healthy fauna community consisting of numerous sponges and moderate sized colonies of star coral. At a distance of 100' along the proposed dock route, the bottom is covered by a thin layer of sediment which allows for a fairly constant growth of turtlegrass. Depths at this point are approximately 6' MHW. The turtlegrass bed continues to the end of the proposed dock and generally covers the entire proposed docking area. Depths in the proposed docking area range between 6'-7' MHW. Lobster frequent the area, together with fish common to the Florida Keys. Areas of concern The only permit application appraisal conducted by the Department was done in connection with the Applicants' October 7, 1983 permit request, and at a time when the waters of Florida Bay did not carry the OFW designation. At that time, the Department's environmental specialist, David Bishof, found that: The proposed dock, along with the boats moored to it, when it is complete and in use, can be expected to shade approximately 2,000 ft 2 of seafloor. Much of the area that will be shaded, is covered by seagrass. A general decline in the quantity of seagrass in the shaded areas, can be expected to result from the project. With the loss of seagrass vegetation in the marina area, will also be the loss of the functions of habitat, sediment stabilization, primary production and pollution filtration. Activities that can normally be expected to be associated with the use of the proposed dock will result in the discharge of toxic metals, hydrocarbons, organic debris, detergents and miscellaneous trash. With a dock of the size being proposed, the above discharges are expected to be moderate in magnitude, but will probably not lower water quality below class III standards. These findings were not disputed in this proceeding. Although the dock area has been reduced from 100' to 79' in length, from 5' to 4' in width, and the number of boat slips from 10 to 8, the proposed dock, with the boats moored to it, can still be expected to shade approximately 1,900 sq. ft. of seafloor. 7/ This shading effect will result in the general decline in the quantity of seagrass in the dock area, and the consequent loss of habitat, sediment stabilization, primary production, and pollution filtration. Loss of seagrass in the dock area and surrounding area will be intensified by "prop dredging" and "scaring" due to seasonal tidal fluctuations of 1-3 feet. As sited, the proposed docks are located in waters of 6'- 7' NHW depth, as opposed to the 5' NLW depth recommended by the Department and the Corps. Other environmental consequences associated with the proposed facility include the discharge of hydrocarbons, toxic metals, detergents and organic debris into the surrounding waters. Mr. Bishof described these discharges as "moderate in magnitude" in his November, 1983 appraisal and concluded that they "will probably not lower water quality below class III standards." At hearing, with Florida Bay now designated OFW, Mr. Bishof again characterized the discharges as "moderate in magnitude" and opined that OFW standards would not be violated. While Florida Bay is a vast body of water, which offers the opportunity for pollutant dilution, the waters in the area of the proposed facility are relatively shallow and lacking in strong currents; conditions- conducive to pollutant buildup. There has been no appraisal of the proposed project since November, 1983, 8/ and no substantive evidence that the hydrography of the waters in the area is adequate to control pollutant buildup. Consequently, Mr. Bishof's opinion cannot be credited. Under the circumstances, Applicants have failed to provide reasonable assurances that the proposed facility will not violate state water quality standards. Public interest In considering whether a project is clearly in the public interest, Section 403.918(2)(a), Florida Statutes establishes seven criteria which must be considered and balanced. That subsection provides: In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The proposed project was not shown to promote any of the seven criteria. It would not, however, adversely affect the public health, safety or welfare or the property of others; adversely affect navigation or the flow of water or cause harmful erosion or shoaling; or adversely affect significant historical and archaeological resources. The relative condition of the vegetation and marine life in the area was shown to be good. Overall, the project was shown to be permanent and to have an adverse impact on the conservation of fish, habitat, marine productivity and recreational values. On balance, the proposed project is not clearly in the public interest, and no evidence was presented to mitigate its adverse impacts. Cumulative impact Section 403.919, Florida Statutes, mandates that the Department consider the cumulative impact of the proposed project in deciding whether to grant or deny a permit. Currently, there are no other projects existing, under construction, or for which permits or jurisdictional determinations have been sought, nor are there any projects under review, approved or vested, within one mile of the project site. Accordingly, cumulative impact is a neutral factor in the evaluation of the proposed project.
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed as a contractor by the Florida Construction Industry Licensing Board. His license for the 1979-1981 license period had not been renewed at the time that the hearing was conducted, and he was therefore delinquent. [This finding is determined from Petitioner's Exhibit 1.] During June, 1977, the Respondent entered Into a contract with Emily D. Wohanka and Ruby Sue Dennard. Ms. Wohanka and Ms. Dennard, who are sisters, agreed to purchase a lot in Satellite Beach, Florida, and the Respondent agreed to construct a single-family dwelling on the lot. The parties agreed to an addendum to the contract during July or August, 1977. The addendum included some specifics with respect to construction and provided: Home will be complete and ready for occupancy within a reasonable period of time--normally three to five months. [This finding is determined from Petitioner's Exhibits 8 and 9, and the testimony of Wohanka and Jordan.) The lot which Ms. Wohanka and Ms. Dennard purchased was not cleared until December, 1977. No progress on construction was made during January or February, 1980. The Respondent obtained a building permit from the City of Satellite Beach, Florida, on February 20, 1978. Construction work commenced in either March or April, 1978. By June, 1978, Ms. Wohanka became concerned that work was commencing too slowly. She told the Respondent that she needed to move in by the end of July. Respondent told her that it was probable that construction would not be completed until mid-August. By September, the project was still not completed. Ms. Wohanka tried to reach Respondent by telephone, but he would not return her calls. She tried to locate him at home, but no one would answer the door. She complained to the building official in the City of Satellite Beach, but the building official had similar problems reaching the Respondent. Ms. Wohanka also complained to N. M. Jordan, the real estate agent who had negotiated the contract. Ms. Jordan was able to locate the Respondent, and the Respondent told Ms. Jordan that he could not complete the project because he was losing money. In late September or early October, Ms. Wohanka and her sister located the Respondent at his home. The Respondent was just walking out of the front door when they arrived. The Respondent told them that he could not discuss the matter, that he had turned it over to Ms. Jordan, and that he was not a part of it anymore. [This finding is determined from Petitioner's Exhibits 2 and 3; and from the testimony of Wobanka, Hijort, and Jordan.] When Ms. Wohanka contacted the Respondent in late September or early October, no work had been done on the project for at least a month, and the house was not completed. Light fixtures, appliances, and air conditioning had not been installed. Cabinets and other fixtures were stored in a bathroom. Inside doors had not been installed. Flooring was not completed. No sidewalks or concrete driveway had been constructed. There had been no landscaping or sodding, and the sprinkler system had not been installed. The plumbing was not operational. Ms. Wohanka contracted with a new builder to complete the project. She was able to move into the residence on December 28, 1978, but work was not finally completed until late January, 1979. Additional expenses beyond those agreed to by the Respondent were incurred by Ms. Wohanka. The Respondent had drawn on a construction loan; but, there is no evidence in the record that the Respondent used these funds for any purposes other than the construction of the dwelling. [This finding is determined from the testimony of Wohanka.] During July, 1977, the Respondent entered into a contract with James and Eleanor A. Lawrence. The Lawrences agreed to purchase a lot in Satellite Beach, Florida, and the Respondent agreed to construct a duplex dwelling on the lot. The Respondent obtained a building permit from the City of Satellite Beach on February 22, 1978. Unknown problems developed, and the project was not being completed. The Satellite Beach building official had difficulty locating the Respondent, but he was ultimately assured by the Respondent that the project would be completed. The Respondent told the realtor who negotiated the contract, Ms. Jordan, that he could not complete the 3 reject because he was losing money. The Lawrences did not testify at the hearing, and specifics regarding their relationship with the Respondent are not known. It is not known whether the Respondent abandoned the project uncompleted without notifying the Lawrences, or whether some agreement was made between them regarding completion of the project. There is no evidenced that the Respondent diverted any funds from the project. [This finding is determined from the testimony of Hjort and Jordan.] No building codes from the City of Satellite Beach were received into evidence. There is no evidence in the record from which it could be concluded that the Respondent violated any provisions of the building codes in either the Wohanka or Lawrence transactions.
Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
The Issue The issue to be determined is whether Consolidated Environmental Resource Permit No. 50-0147856-003-EI and State-owned Submerged Lands Lease No. 500022746 for a commercial addition to the multi-family residential dock, known as the Buccaneer Condominium Marina, should be issued as proposed in the December 27, 2017, proposed agency action issued by the Department of Environmental Protection (“DEP”) in its own capacity and in its capacity as staff to the Board of Trustees of the Internal Improvement Trust Fund (“BTIITF”). Unless individually identified, the DEP and the BTIITF will be collectively referred to as “the DEP.”
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Great American is a foreign for-profit corporation doing business in the State of Florida. Great American owns the 144 Property. The 144 Property is located immediately north of, and adjacent to, the Buccaneer Condominium, and shares a riparian line (the “riparian line”) extending waterward from the line separating the upland properties. The location of the riparian line between the Buccaneer Condominium and the 144 Property is as depicted on the proposed ERP and SSL Authorization, and is not in dispute. The 144 Property has 92 feet of shoreline on Lake Worth, and includes the small residential 144 Dock. The 144 Property is used annually by the family of Great American’s principal shareholders. When not being utilized by family members, Great American leases the 144 Property to various individuals. As a rule, all persons using the 144 Property moor vessels at the 144 Dock, which are generally in the 50- to 60-foot range, but which can be up to 80 feet in length. The Buccaneer Condominium is a Florida condominium association established pursuant to and governed by chapter 718, Florida Statutes, and subject to the Declaration of Condominium recorded within the public records of Palm Beach County, Florida (the “Declaration”). The Buccaneer Condominium is a mixed-use condominium facility located at 142 Lake Drive, West Palm Beach, Florida, and is a waterfront riparian owner. The Buccaneer Condominium offers, as an amenity of its 18 condominium units, the 18-slip Buccaneer Condominium Dock that is a common element of the Buccaneer Condominium. The Buccaneer Condominium unit owners each own an undivided interest in the common elements of the condominium, and, therefore, an undivided interest in the Buccaneer Dock. The Buccaneer Condominium designates and licenses a dock space to each condominium owner, and each owner has the irrevocable and exclusive right to use of a dock space. Section 718.111(3) establishes that the Buccaneer Condominium has the non-exclusive right to file suit on behalf of the members of the Association relative to claims which involve common elements, while reserving the statutory and common law right for unit owners to bring any action without participation by the Buccaneer Condominium. Mr. Sharfi is the President of the Buccaneer Condominium and is authorized to act on its behalf pursuant to the Declaration and associated corporate bylaws. Mr. Sharfi is a member of the Buccaneer Condominium by virtue of his ownership of multiple condominium units, along with the irrevocable and exclusive right to use Buccaneer Dock spaces associated with his units. Mr. Sharfi owns Commercial Unit A, which was purchased from Great American in January 2017. The rights granted to Commercial Unit A to use Buccaneer Condominium property and common elements are established in section 5.2.3 of the Declaration. Pursuant to Article VIII, section 8.3 of the Declaration: To the extent permitted by law, any and all riparian rights to add additional dock spaces is hereby reserved, granted and assigned to Unit A and the Owner thereof . . . . Without limiting the foregoing, the Owner of commercial Unit A shall have the right, power, and authority, to the extent permitted by law, to construct any additional dock spaces in the waterway contiguous to the Condominium property . . . provided, however, the use thereof shall be deemed to be and have been designated and assigned perpetually and exclusively to and as an appurtenance to Commercial Unit A. The Buccaneer Condominium and Commercial Unit A are joint applicants for the Permit at issue, with the Buccaneer Condominium being included as an applicant due to its status as an upland riparian owner and current SSLL lessee. DEP is an agency of the State of Florida pursuant to section 20.255, Florida Statutes. The DEP is the permitting authority in this proceeding and issued the proposed Permit. The BTIITF is a collegial body established pursuant to Article IV, section 4(f) of the Florida Constitution, whose existence is reaffirmed by section 253.001, Florida Statutes. The BTIITF holds title to the sovereignty submerged lands within the State in trust for the use and benefit of the public pursuant to Article X, section 11 of the Florida Constitution. The DEP performs staff duties and functions on behalf of the BTIITF related to the review of applications for authorization to use sovereignty submerged lands necessary for an activity regulated under part IV of chapter 373 for which the DEP has permitting responsibility. § 253.002(1), Fla. Stat. The DEP has been delegated the authority to take final agency action, without any action by the BTIITF, on applications for authorization to use sovereignty submerged lands for any activity for which the DEP has permitting responsibility. § 253.002(2), Fla. Stat.; Fla. Admin. Code R. 18-21.0051(2). The Buccaneer Condominium Dock The Buccaneer Condominium Dock was constructed in 1958, prior to regulatory rules being in place, and is, therefore, a grandfathered structure. From a regulatory perspective, it is a “private residential multi-family dock or pier” as defined in Florida Administrative Code Rule 18-21.003(47), exclusively serving the 18-unit Buccaneer Condominium. Petitioner has not challenged the legality of the existing lease or prior leases for the Buccaneer Condominium Dock. The Buccaneer Condominium Dock consists of 18 dock spaces, nine of which face north in the direction of the 144 Dock, and nine of which face south. There is no use of the Buccaneer Condominium Dock by the public. The Buccaneer Dock extends 162 feet from the seawall. The Buccaneer Dock includes a fueling facility at its seaward end. The Proposed Commercial Unit A Dock The proposed Commercial Unit A Dock would be constructed from the end of the Buccaneer Condominium Dock. It is proposed to consist of 12 slips in a double-loaded fashion, with six slips facing north (in the direction of the 144 Dock) and six slips facing south, and two short-term or transient T-head mooring positions for fueling for a total of 14 commercial slips over 2,370 square feet. The T-head will accommodate a fueling station, replacing the current fueling platform at the end of the Buccaneer Condominium Dock. The Commercial Unit A Dock will be approximately 140 feet in length, resulting in a combined structure of 302 feet from the bulkhead westerly towards the Singer Island Channel. The westernmost boundary of the proposed SSLL extends 20 feet beyond the T-head to allow for vessels to tie up at the fueling station. The SSLL will, according to the Permit drawings, extend 324.5 feet into Lake Worth and the Singer Island Channel. The total preempted area for the modified SSLL will be 49,800 square feet. The Commercial Unit A Dock will be open to the general public for use on a first-come, first-served basis to serve the restaurant in Commercial Unit A. Adverse Affects on Navigation/Navigational Hazard The Environmental Resource Permit Applicant’s Handbook (“A.H.”),z Vol. I, provides criteria to be considered in conjunction with the standards established in section 373.414, and Florida Administrative Code Rule 62-330.301, for issuance of an ERP.1/ Section 10.2.3.3 of the A.H. establishes that the DEP is to evaluate and consider the current navigation uses of the surface water in determining whether to issue an ERP. Singer Island Channel The Singer Island Channel runs in a north/south direction and is the navigational channel closest to the Buccaneer Condominium Dock and proposed Commercial Unit A Dock, the 144 Dock, Great American’s Sailfish Marina to the south, and the Cannonsport Marina to the north. The east side of the Singer Island Channel is generally defined by the waterward ends of the docks and marinas in the area, while the western side is defined by the Peanut Island shoal. The Singer Island Channel is widely used, but is not to be confused with the Intracoastal Waterway (“ICW”), which is the main navigational thoroughfare for commercial and recreational vessels in the area, and which runs to the west of nearby Peanut Island. The eastern edge of the proposed SSLL extension will become a part of what is an essentially straight line from the Sailfish Marina docks to the Cannonsport Marina docks. There will be approximately 97 feet of open water between the northwestern corner of the proposed SSLL to the closest point on an imaginary straight line drawn from the nearest Singer Island Channel markers located to the north and south of the proposed SSLL. The visible edge of the Singer Island Channel is, at a minimum, an additional 15 feet west of that imaginary line. Thus, a preponderance of the evidence establishes that the “pinch point” between the SSLL and the navigable edge of the Singer Island Channel is, at its narrowest, 112 feet in width. A preponderance of the evidence establishes that 97 feet of open water is sufficient to allow vessels of the size that frequent the area to easily maneuver if they were to pass at the Singer Island Channel’s narrowest point. Given that there is a minimum of 15 feet of additional open-water space to the visible edge of the Singer Island Channel, there will be no adverse impact to the navigation of the vessels transiting the Singer Island Channel. The finding that the space between the Commercial Unit A Dock SSLL and the edge of the Singer Island Channel is sufficient to allow unimpeded navigation is substantiated by the clearance deemed sufficient to allow for safe navigation beneath the nearby Blue Heron Bridge. The Blue Heron Bridge is north of the proposed Buccaneer Commercial Dock on the ICW. The ICW is the primary channel for commercial, recreational (sport fishermen, yachts, and pleasure craft) and Coast Guard vessels. The passage beneath the bridge is flanked by fixed dolphins or guardrails. The clearance under the bridge is 90 feet, which is sufficient for two vessels to pass in the federally-maintained channel. Petitioner argued that the Blue Heron Bridge is not an appropriate comparator for an evaluation of impediments or hazards to navigation, since the passage beneath the bridge is not in an environment comparable to what would be expected in the vicinity of the proposed Commercial Unit A Dock, i.e. with vessels tying up at the periphery of the channel for fueling, and with vessels maneuvering into and out of nearby slips. The evidence to that effect was disputed, and in any event was not persuasive. The fact that vessels are able to maneuver and pass one another without incident in a space of 90 feet is persuasive evidence that they will be able to do so in a space of 97 feet in width, and even more persuasive that they will be able to do so in a space of 112 feet in width. Recreational vessels often pull up onto the Peanut Island shoal that extends to the north and east from Peanut Island. The shoal has areas that are above water at low tide, and is apparently a popular spot for small-craft boaters to pull up and anchor. The evidence suggests that boaters more commonly pull onto the shoal closer to the northwest corner of the channel, near the Cannonsport Marina, or off to the west of Peanut Island well away from the proposed Commercial Unit A Dock, though there is nothing to prevent boats from pulling onto the shoal in the vicinity of the proposed Commercial Unit A Dock. However, it is illegal to anchor in or block a marked navigational channel, as is the Singer Island Channel, and any vessels doing so would be required to move by the Marine Patrol or the Coast Guard. Finally, an argument was made that vessels standing off while waiting to fuel at the proposed Commercial Unit A Dock would create an impediment to navigation. It was established by a preponderance of the competent, substantial, and credible evidence that there is sufficient space to stand off without interfering with traffic in the Singer Island Channel, particularly in the open water area to the north of the proposed Commercial Unit A Dock, but also to the significantly wider and more open areas to the south of the proposed Commercial Unit A Dock. Furthermore, the area around the proposed Commercial Unit A Dock is in a less congested area than the fueling facility at the center dock of the adjacent Sailfish Marina which, as depicted on Respondent’s Exhibit 20, is flanked by sizable docks. There was no evidence that the Sailfish Marina has been a cause of navigational impediments as a result of vessels standing off for fuel. Based on the record as a whole, including evidence of the existing commercial docks in the area, current channel width, and boating traffic and use patterns in the area, a preponderance of the evidence demonstrates that neither the 112-foot width of open water from the northwest corner of the proposed Commercial Unit A Dock to the edge of the Singer Island Channel at its closest point, nor the 97-foot width as measured to the imaginary channel marker line, creates a condition that is reasonably expected to significantly impede navigability or create a navigational hazard. 144 Property The existing Buccaneer Condominium Dock is 162 feet in length, with a fueling facility at its waterward end. As with the proposed Commercial Unit A Dock fueling platform, an additional 20 feet should be calculated from the end of the dock to account for vessels tying up to fuel. There was no evidence that the existing Buccaneer Condominium Dock impeded access to the 144 Dock by persons affiliated with Petitioner or by the more frequent renters of the 144 Property. The evidence was convincing that the Buccaneer Condominium Dock does not create a condition that is reasonably expected to significantly impede navigability or create a navigational hazard. The proposed Commercial Unit A Dock is designed to extend 140 feet from the end of the Buccaneer Condominium Dock. The proposed Commercial Unit A Dock complies with the 25-foot setback requirement from the 144 Property riparian line as required by rule 18-21.004(3)(d). The area to the north of the 144 Dock is wide open, with more than enough space to maneuver any vessel that currently uses the 144 Dock. Furthermore, the space available for maneuvering in the waters south of the 144 dock will not be appreciably more restricted than the restriction posed by the Buccaneer Condominium Dock, and will be no more restricted than the space for maneuvering between docks at the Sailfish Marina or the Cannonade Marina. Mr. Fleming agreed that there is no adverse navigational condition, vis-à-vis the 144 Dock, resulting from the Buccaneer Condominium Dock. His concern with navigation was based on his assumption that the Commercial Unit A Dock would increase vessel traffic in the area, blocking the fairway to the south of the 144 Dock and increasing the possibility of a collision. That concern can only have merit if it is assumed that the operators of vessels in the area are completely unfamiliar with common maritime rules of right-of-way and maneuvering. The area around the Commercial Unit A Dock will remain less congested than nearby facilities. It is simply implausible, and unsupported by competent, substantial evidence, that the proposed Commercial Unit A Dock will adversely affect navigation to or from the 144 Dock. Petitioner holds a self-certification from the DEP which acknowledges Petitioner’s qualification for an exemption for a residential dock of up to 1,000 square feet at the 144 Property. Such docks are exempt by statute and rule. § 403.813(1)(b), Fla. Stat.; Fla. Admin. Code Rule 62- 330.051(5)(b). Despite the fact that Petitioner is allowed to construct an exempt dock extending from the 144 Property into the waterway, there was no persuasive evidence as to when, or if, the dock would be built, or that the dock, if constructed, would result in the proposed Commercial Unit A Dock being found to adversely affect navigation or create a navigational hazard. A preponderance of the evidence establishes that the proposed Commercial Unit A Dock will not adversely affect or impede navigability, or create a navigational hazard for vessels ingressing and egressing the 144 Dock. In addition to the lack of credible evidence that the Commercial Unit A Dock will adversely affect or impede navigation, the evidence is equally unpersuasive that riparian rights incident to the 144 Property will be impaired. There was no evidence, other than speculation and conjecture, regarding the currently non-existent future 144 Dock, that suggest that Petitioner’s riparian interests would be impaired to any appreciably greater degree than they would be as a result of the current 162-foot Buccaneer Condominium Dock and the additional 20+/- feet for vessels tying up to fuel. In addition, the Commercial Unit A Dock is subject to the 25-foot setback required by rule. A preponderance of the evidence establishes that the proposed Commercial Unit A Dock will not unreasonably infringe upon Petitioner’s riparian rights. Commercial Unit A Dock as an Extension of the Buccaneer Condominium Dock The DEP established the propriety of having the Buccaneer Condominium Association as a co-applicant with Commercial Unit A since it is the holder of the existing lease and an upland riparian interest. See, e.g., Fla. Admin. Code R. 18-21.004(1)(c) and (d). Rule 18-21.004(4)(b)2., which establishes a ratio “of no more than forty square feet of sovereignty submerged land for each linear foot of the applicant’s common riparian shoreline . . . to square feet of multi-family residential dock [the “40:1 rule”]” applies only to private multi-family residential docking facilities. The Buccaneer Condominium Dock is a grandfathered dock based on its existence and configuration prior to the promulgation of the 40:1 rule. There is no proposed extension or material alteration of the Buccaneer Condominium Dock.2/ The 40:1 rule does not apply to the Commercial Unit A Dock because the rule applies only to private residential multi- family docks, and does not apply to commercial slips. Thus, the DEP did not apply the 40:1 rule to the proposed Commercial Unit A Dock. The combined preempted area encompassed by the modified SSLL will not exceed 50,000 square feet, or result in a facility of more than 50 slips. The Buccaneer Condominium Dock, as a grandfathered structure, does not require an exception to the 40:1 rule. There was no persuasive evidence that the Buccaneer Condominium Dock and the Commercial Unit A Dock are part of a common plan of development designed to operate as a single dock for the Buccaneer Condominium. The Buccaneer Condominium Dock will be materially unchanged in use and configuration, and will remain dedicated to the owners of Buccaneer Condominium units. The Commercial Unit A Dock will be a first-come, first-served commercial dock for the primary purpose of allowing transient dockage for patrons of the restaurant on Commercial Unit A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the Consolidated Environmental Resource Permit and Recommended Intent to Grant State-owned Submerged Lands Authorization, Permit No. 50- 0147856-003-EI to the Applicants, the Buccaneer Commercial Unit A, care of Benjamin Sharfi, Trustee of the Benjamin Sharfi Trust 2002, and the Buccaneer Condominium Association of Palm Beach Shores, Inc., subject to the general and specific conditions set forth therein. DONE AND ENTERED this 10th day of January, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 2019.
