Findings Of Fact Stipulated Facts Jim and Paulette Holzinger own Lot 17, Section B, Long Beach Estates, located on Big Pine Key in unincorporated Monroe County, Florida. The property is south of Long Beach Drive. The property is located within the Florida Keys Area of Critical State Concern. See Sections 380.05 and 380.0552, Florida Statutes. Under these statutes, Monroe County adopted a comprehensive plan and implemented it with land development regulations which are consistent with the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. The Department of Community Affairs approved the County's comprehensive plan in Rule Chapter 9J-14, Florida Administrative Code, and the Administration Commission approved the comprehensive plan in Chapter 28-29, Florida Administrative Code. The County's comprehensive plan is implemented through its land development regulations, codified as Chapter 9.5 of the Monroe County Code. Monroe County is responsible for issuing development orders for land development in unincorporated Monroe County, including these development orders (building permits). The Local Government Comprehensive Planning and Land Development Act, Chapter 380, Florida Statutes, restricts the County from permitting development which is inconsistent with the Monroe County Comprehensive Land Use Plan, Sections 163.3161(2) and 163.3194(1), Florida Statutes. No person may undertake any development within an area of Critical State Concern except in conformity with Chapter 380; Section 380.05(16), Florida Statutes. After the County issued the three related permits, the Holzingers engaged Pinewood Enterprises, Inc., as general contractor, for the construction of their single-family residence. Those permits were rendered to the Department of Community Affairs on July 21, 1992, and the Department issued its notice of appeal of those permits on September 4, 1992. No party disputes the timeliness of the appeal. The Holzingers' lot is vegetated by mangroves, transitional plant species, and beach berm plant species. The site plan, and which was part of the Holzingers' application for the permits, which Monroe County approved, includes the approval of dredging of a portion of Lot 17 and the placement of fill on site to provide driveway access to the single-family residence. The site plan locates the single-family residence in an area of Bay Cedar thicket. The mangroves are located along the north of the lot along Long Beach Drive. Facts Found Based on Evidence Adduced at the Final Hearing The Holzingers' lot is located at the southernmost area of Big Pine Key, and is separated from the rest of the key by a wetland to the north of the property. To its south is the Atlantic Ocean. The lot is approximately 100' x 230' and contains approximately 22,750 square feet from property line to property line. On the lower keys land elevations only extend from sea level to a maximum of approximately five or six feet above sea level. The soil or substrate conditions on the lot are white calcareous deposits which appear to the untrained eye to be sand. It is not quartzite, but deposits from the breakdown of marine grasses or marine algae which have the appearance of sand. There is no caprock on the property. B (1). Habitats Recognized in the Monroe County Plan The Monroe County Comprehensive Development Plan is based upon the Data and Analysis found in volume 1 of the Plan. According to that Data and Analysis, there are different types of habitat found in the Keys. These include salt marsh, salt marsh and buttonwood association, mangrove community, tropical hardwood hammock, and beach berm complex. The most significant one here is beach berm complex; it includes: "bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of and usually parallel to the shoreline and beach. The sand is calcareous material that is the remains of marine organism such as corals, algae and mollusks. The berm may include forested costal ridges and may be colonized by hammock vegetation." Section 9.5-4(B-3), Monroe County Code [the land development regulations]. In the Data and Analysis, the County records that on Long Beach Key the most landward area of the berm is tropical hardwood hammock. The low hammocks are upland hardwood forest communities containing species such as blolly, buttonwoods, darling plums, spanish stopper and wild dilly, all of which are found on the vegitation survey of the lot done by a biologist for Mother Nature's Enterprises, Linda Pierce, as part of the Holzinger building permit application. See Section 9.5-4(L-10), Monroe County Code, which defines low hammocks. Low hammocks include berm hammock, and the beach berm association described in the County comprehensive plan includes berm hammocks (Tr. 184). B (2). The Land Use Maps and their Designations The existing conditions map which is part of the Monroe County comprehensive plan designates the area of the Holzingers' property as beach berm association. That map is drawn at the sale of one inch equals 2,000 feet. Similar aerial maps at a scale an order of magnitude smaller (one inch equals 200 feet) also show the land as beach berm with fringing mangroves. These aerial photographs have been overlaid with the Comprehensive Plan's habitat designations for use in the practical application of the land development regulations by County employees. Under the land use regulations found in the Monroe County Code, the County Commission is required to follow the existing conditions map it adopted, Section 9.5-227, Monroe County Code. Under the first paragraph of Section 9.5- 345 the environmental design criteria applicable to development of a parcel of land depend upon the habitat designated for the parcel on the existing conditions map (the map drawn at the larger scale of one inch equals 2,000 feet). Ground proofing of the habitat on the lot done by the Lower Keys' biologist, Diana Stephenson, and by the Department of Community Affairs planner/biologist, Kathleen Edgerton, show that the land is actually beach berm from the ocean to the mangroves, and there is a small area of disturbed saltmarsh landward from the mangroves to the county road which runs down the center of the key. I am not persuaded by the testimony of the biologist for the Holzingers, Mr. Smith, who believes that there is a separate tropical hardwood hammock habitat on the Holzingers' lot. A full habitat analysis would have been required if there were mixed habitats on the lot (Tr. 88, 96) and the Holzingers did not submit one to the County as part of their application. Because the County biologist found no separate low hardwood hammock habitat on the lot, she believed that no habitat evaluation index was required in processing the Holzinger application, and none was done independently by the County. Mr. Smith contended at final hearing that there are several distinct habitats on the single lot. Moving south from Long Beach Drive toward the ocean he first finds a disturbed saltmarsh of approximately 4,000 square feet; then a mangrove community of about 2,500 square feet; then a saltmarsh and buttonwood association of about 2,500 square feet; next a tropical hardwood hammock of moderate quality and finally, closest to the ocean, beach berm complex. This analysis, which designates a separate saltmarsh and buttonwood association waterward of the mangrove community, and then a separate tropical hardwood hammock waterward of the saltmarsh and buttonwood association, fails to give significant weight to the fact that low hammocks are typically found within beach berm complex. While Mr. Smith testified to the square footages for each of the five habitats, he only performed rough calculations for their size, he was not working with, nor did he perform an actual survey which would define the boundaries of the various habitats he believes are present. He readily acknowledged his preliminary habitat analysis was incomplete. Moreover, accepting for the sake of argument that there is a mixed habitat on the lot under the evidence adduced by the Holzingers, a complete habitat evaluation index should have been performed by the Holzingers as a necessary part of their application, since the County biologist did not do one in the belief there was no need for one. The essential problem with the view expressed by Mr. Smith that there are five habitats on this 100-foot lot is his contention that due to the very small changes in elevation through the Keys, one must identify different habitats recognized in the Monroe County comprehensive plan and land development regulations by assessing the predominance of different types of vegitation typical of a habitat. To Mr. Smith, if the vegitation is of a type normally found in a tropical hardwood hammock, and it predominates over the other vegitation, that area must be classified as a tropical hardwood hammock. At that level of generalization, the statement is no doubt true. Neither the land development regulations or the County's Comprehensive Plan require, or even permit, a microanalysis of the vegitation for the purpose of defining multiple habitats on a lot. Taking a broad view, such as that embodied in the existing conditions map, the predominate vegetative and soil conditions on the southern part of the island where Lot 17 is located are consistent with the categorization as beach berm association. The same is true using the aerial maps on which the different habitat designations from the land development regulations have been overlaid. What Mr. Smith has done is to look for small areas within the 100' x 230' parcel to identify areas where tropical hardwood species may be said to "predominate." The obvious purpose of Mr. Smith's division of the lot into small areas is to be able to characterize these uplands species as "predominating." This is essential to justify intensive use of the property. The comprehensive plan and the land development regulations do not permit any use of areas colonized by mangroves, which are wholly protected by a 100 percent open space requirement. This means that 100 percent of the area colonized by mangroves must be maintained in its natural condition and free and open to the sky, Section 9.5-343, Monroe County Code. Open space ratio for saltmarsh and buttonwood associations is .85 but for moderate quality low hammocks is only .60. Beach berm association is highly protected, with an open space requirement of 90 percent. Only 10 percent of the land area waterward of the mangrove habitat, therefore, can be covered with the footprint of the single-family residence and any associated driveway or other access way because it is beach berm complex. Accepting the mangrove line contained in the vegitation assessment submitted by the Holzingers in their application done by Mother Nature's Enterprises, and then using a "planimeter" to measure the area from the mangrove line to the mean high water line on the lot, there is 16,594 square feet of property. Given the 90 percent open space requirement, a very small area of 1,659 square feet may be covered with the footprint of the single-family home, including its porch, eaves, and driveway. The footprint of the house, its porch, and driveway shown on the site plan approved by the County, with the addition of a five-foot clearing zone around the footprint of the house [because it is essentially impossible to clear land only to the footprint of the completed building] reveals that the County's permits would allow the clearing of 2,880 square feet. Even without the five-foot construction zone around the house, porch and driveway, the County permits allow the clearing of 2,172 square feet. It is very difficult to understand how the Monroe County official in charge of the office which issues building permits could have determined that the development proposed by the Holzingers was permittable. That official did not testify. The County biologist for the Lower Keys who did testify, Ms. Stephenson, was adamant that the project was never permittable under the Monroe County land development regulations. The only explanation by which the permit conceivably could have been granted would be to do something the land development regulations do not permit: aggregate the square footage which the code makes available for development on the landward side of the mangroves, in the area of disturbed saltmarsh between the road and the mangroves, and add the usable square footage for that habitat area to the usable square footage on the waterward side of the mangroves, in the beach berm association. But the amount of each habitat which must remain as open space is determined for each habitat type. They cannot be aggregated across habitats, to give some total usable number of square feet, to be cleared anywhere on the property. That would ignore the significance of the separate habitat designations. The 1,659 square feet available for development in the beach berm association must be used only within that habitat, and square footage available for development within the disturbed salt marsh cannot be added to it. Fill Issues The site plan approved by the County permits fill to be used to construct a driveway on the property through the mangrove area and the beach berm area. This is simply an error on the part of the County, for no party disputes that fill is forbidden in these areas. The performance standards in the land development regulations do permit certain piers, docks, utility pilings and walkways over mangrove areas, but no fill is permitted. Section 9.5- 345(m)(1), Monroe County Code (Tr. 139). The Holzingers could receive a permit to build a raised bridge over the mangroves for access to the beach berm association portion of the lot, as has been done on a nearby lot to the west of the Holzingers' lot. They cannot, however, fill the mangroves to create the driveway shown on the site plan the County approved. The building permit the County granted which purports to allow fill in mangrove areas is inconsistent with the County's own land development regulations and cannot stand. The next question is whether there is some alternate means of access to the lot which can be used instead of that permitted. At the final hearing Mr. Smith stated that on a recent visit to the Holzingers' property, he found an old road on the east side of the property which is high land which could serve as a location for a driveway or accessway to the interior of the Holzingers' property. There is, however, actually no old road anywhere on Lot 17. There was an old road on Lot 16, and a bit of the spoil from that road may be found on Lot 17, but there simply never has been a road on the Holzingers' lot which they can use for a driveway. Fill will be required to locate any driveway, and that is inconsistent with the County land development regulations. The only thing the Holzingers can do to overcome this problem would be to build a bridge over the mangrove area and completely avoid the use of any fill. Summary of Findings The scarified or a disturbed saltmarsh area from the county road to the mangrove area is too small to be useful. The Holzingers do not plan to build in that area. Whatever portion of that area which is not required to be open space cannot be "banked" to allow additional clearing in the beach berm association on the waterward side of the mangroves. For all practical purposes, that disturbed saltmarsh area adds nothing to the buildable or clearable area on Lot 17. The mangrove area has a 100 percent open space requirement. Mangroves are a highly protective habitat, which contribute nothing to the buildable area on Lot 17. The remaining portion of the Lot 17 waterward from the mangrove area to the mean high water line is too small to permit the construction and erection of the house and driveway permitted by the development orders (building permits) issued by Monroe County. The buildable area in the beach berm association is no more than a total of 1,660 square feet for the house, its porch, the driveway. The County has issued a permit to use 2,880 square feet of that habitat (including an allowance for a construction zone), or at least 2,172 square feet, assuming the location of the house, porch, and an eight-foot wide driveway and no construction clearing around the footprint around the house/porch. This fails to meet the 90 percent open space requirement found in the Monroe County Code. The building permits issued by Monroe County to the Holzingers are therefore invalid. To obtain valid permits, the Holzingers must substantially reduce the footprint of the house, including an allowance for a construction clearing zone. A house that small may be undesirable, but it could be permitted. What the County has attempted to permit, however, is invalid under its own regulations.
Recommendation It is RECOMMENDED that development approval for the subject lot be denied, unless the applicant presents, and the County and the Department approve, a revised permit and site plan which demonstrates compliance with the mandatory open space requirements for the beach berm and mangrove habitats, and which eliminates the placement of fill in the beach berm complex and the mangrove wetlands on site. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of July 1993. WILLIAM R. DORSEY, JR. 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 9th day of July 1993. APPENDIX The Findings of Fact proposed by the Department have been generally adopted, although the long quotation from Volume I and II of the County Comprehensive Plan are not essential or necessary. See proposed finding 10. The Respondents submitted no proposed Findings of Fact. COPIES FURNISHED: Stephanie M. Callahan Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Theodore W. Herzog, Esquire 209 Duval Street Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301
The Issue The issues for determination are: (1)whether Respondent violated Section 112.313(7)(a), Florida Statutes; (2) whether Respondent violated Article II, Section 8, Florida Constitution; and (3) if so, what penalty should be imposed.
Findings Of Fact At all times pertinent to this proceeding, and since November 1994, Kenneth Sattler (Respondent), served as a Commissioner on the St. Lucie County Board of Commissioners (Board of Commissioners). The Board of Commissioners also acts as the St. Lucie County Port and Airport Authority (St. Lucie Airport Authority). Accordingly, at all times relevant to this proceeding, Respondent was also a member of the St. Lucie Airport Authority. As a St. Lucie County Commissioner and a member of the St. Lucie Airport Authority, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Respondent first met Maurice Warren at an Elks Club function in early 1995. At this initial meeting, Mr. Warren mentioned to Respondent that he had a business proposition, but did not specify the nature of the business or any details related thereto. In or about June 1995, Mr. Warren met with Respondent and disclosed to him information about his proposed business venture. Mr. Warren told Respondent about Civil Aviation Academy, Inc. (CAA), a company that he had formed, and about his plans to establish a flight school. Moreover, Mr. Warren discussed the possibility of locating the school at the St. Lucie Airport. Later in the summer of 1995, Respondent met with Mr. Warren and Thomas B. Furse, a colleague of Mr. Warren, to discuss their plans to locate the proposed flight school at the St. Lucie County Airport. Respondent was particularly impressed with Mr. Furse's presentation of CAA's proposal for a flight school and believed that such a project would be good for the economy of St. Lucie County. In the summer of 1995, when the meetings between Respondent and Mr. Warren took place, CAA had developed a business plan. However, at that time, CAA was not a legal entity and appeared to have no substantial assets. CAA was incorporated by the Secretary of State on October 5, 1995. Prior to building and operating a flight school at the St. Lucie County Airport, CAA had to comply with the requirements of the St. Lucie Airport Authority. The conceptual lease was a preliminary requirement for obtaining a lease to operate at the St. Lucie County Airport. Recognizing this, in or about August 1995, CAA took steps to secure a conceptual lease by applying to the St. Lucie Airport Authority. On August 22, 1995, the Board of Commissioners granted approval for CAA to be given a conceptual lease. The conceptual lease, valid for a year, was set to expire on August 22, 1996. Respondent was not present at the August 22, 1995 meeting and did not participate in the vote. According to the conceptual lease, CAA was to "establish a full service fixed base operation on airport property." Moreover, under the terms and conditions of the conceptual lease, CAA was required to: (1) make a nonrefundable deposit of five percent of the monthly lease payment to the St. Lucie Airport Authority; (2) survey the property which was the subject of the conceptual lease; (3) develop a site plan for the property; and (4) submit the site plan to the St. Lucie County Planning and Zoning Board. Once these conditions were met, the St. Lucie Airport Authority was obligated to issue a lease to CAA. An integral part of CAA's plan to establish and operate a flight school at the St. Lucie County Airport involved purchasing an already existing flight school. At some point, CAA sought to purchase Pro-Flite, an accredited and established flight school, located in Vero Beach, Florida. Mr. Warren believed that by purchasing an accredited and established school, CAA could begin operating its flight school much sooner. At the time CAA was attempting to purchase Pro-Flite, CAA was aware that Pro-Flite had existing leases at the Vero Beach Airport, some of which extended to 2017. Moreover, CAA anticipated that the flight school initially would continue to operate from the Vero Beach location. However, if successful in its negotiations to purchase Pro-Flite, CAA fully expected that it would move Pro-Flite's operations to the St. Lucie County Airport as soon as was practical Respondent became involved with CAA on September 21, 1995, when he gave Mr. Warren $5,000 cash as seed money for CAA. Respondent believed that at least part of the funds would be used to cover the travel expenses of a person from whom CAA was seeking financial backing. Also, part of Respondent's $5,000 was used to pay all or part of the $3,267 deposit that CAA was required to pay the St. Lucie Airport Authority under the terms of the conceptual lease. In exchange for the $5,000 that Respondent gave to Mr. Warren, Mr. Warren gave Respondent a promissory note with a face amount of $5,000. The promissory note, given to Respondent by Mr. Warren on September 21 or 22, 1995, listed the borrower as CAA and was signed by Maurice Warren. Under the terms of the promissory note, Respondent would be repaid the $5,000, at an interest rate of nine percent, on September 22, 2000. Although the face amount of the promissory note was $5,000, the value of the note between September and December of 1995, is unknown. However, as of April 1996, it was determined that the promissory note had no value. In addition to the promissory note that Mr. Warren gave Respondent, Mr. Warren offered and wanted to give Respondent 500 shares of CAA stock. In response to the offer of stock in CAA, Respondent told Mr. Warren that he did not want shares of CAA stock and further indicated that this might create a conflict of interest. On September 25, 1995, Respondent obtained a power of attorney from Margaret Mansfield, the mother of his late first wife. The durable general power of attorney authorized Respondent to act for Ms. Mansfield and in her "name, place, and stead." On the date that the power of attorney was executed, Ms. Mansfield was eighty-three years old and resided in Respondent's home. Ms. Mansfield had lived with Respondent since 1977. At some point, Respondent asked Margaret Mansfield if she wanted shares of the CAA stock. According to Respondent, Ms. Mansfield told Respondent to "do what he wanted." Subsequently, Respondent asked Mr. Warren to issue the 500 shares of stock in his ex-mother-in-law's name. Mr. Warren complied with the Respondent's request. Pursuant to the aforementioned power of attorney, Respondent signed Ms. Mansfield's name on the November 16, 1995, CAA "Stockholders Agreement" and on the December 22, 1995, CAA "Stock Subscription Agreement." Ms. Mansfield was never personally involved in either of these transactions or any other business of CAA. On December 12, 1995, at the end of a meeting of the Board of Commissioners, Respondent announced that a gentleman by the name of Maurice Warren had been in attendance at the meeting, but had left after a couple of hours. Respondent mentioned that Mr. Warren was associated with the flight school being planned for the St. Lucie County Airport and then urged other commissioners to be supportive of the project. The particular issue being addressed at that time involved a request Mr. Warren recently had made to individual commissioners concerning the proposed flight school. Mr. Warren apparently had invited commissioners to come to the St. Lucie County Airport on December 18, 1995, for his public announcement regarding the flight school. At no time during the December 12, 1995, meeting of the Board of Commissioners did Respondent indicate that he was involved with Mr. Warren, CAA, and/or the proposed flight school. In or about March 1996, Respondent learned that CAA had been unable to obtain the financial support that it needed to establish its proposed flight school. At about this time, Mr. Warren contacted Respondent and asked him to assist CAA in purchasing Pro-Flite, a flight school located in Vero Beach, Florida. Respondent agreed to assist CAA in its effort to purchase Pro-Flite. In or about March 1996, when Respondent agreed to provide such assistance, he believed that CAA would be operating its proposed flight school in Vero Beach, Florida. Because Vero Beach is located in Indian River County, Respondent did not view his involvement with CAA as a "problem." On March 22, 1996, at a meeting of the CAA Board of Directors, Respondent was appointed to the CAA Board of Directors and also elected to serve as secretary of the CAA Board. Respondent was present at this meeting. When Respondent became a director and the secretary of CAA, CAA's conceptual lease remained in effect and the company was moving forward with its attempt to obtain a lease. Moreover, during the time Respondent was a director and the secretary of CAA, CAA was taking steps to purchase Pro-Flite and to eventually move the flight school to St. Lucie County Airport. After being elected to the CAA Board of Directors, Respondent followed through on his promise to assist CAA in its efforts to acquire Pro-Flite. In this regard, Respondent accompanied Mr. Warren on visits to the Pro-Flite facility in Vero Beach, Florida, and to financial institutions that might provide funds for the acquisition. On at least one occasion, Mr. Warren, Respondent and two other CAA investors went to Sun Bank to seek financing for the purchase of Pro-Flite. During this meeting, Respondent learned that only two people in attendance, Respondent and one of the other CAA investors, had sufficient assets to collateralize a loan in the amount necessary to purchase Pro-Flite. In or about April 1996, Respondent withdrew his support of CAA's proposed acquisition of Pro-Flite. The basis of Respondent's decision, as articulated in his April 19, 1996, letter to Mr. Warren, was because of Respondent's concerns about Mr. Warren's ability to provide leadership to CAA and his business practices. After withdrawing his support from CAA and its proposed acquisition of Pro-Flite, Respondent and another CAA investor formed another company. The newly formed company obtained a loan from a Vero Beach bank to keep Pro-Flite operating while the principals attempted to negotiate the purchase of the flight school. However, Respondent's new company never purchased Pro- Flite. After Mr. Warren received Respondent's April 19, 1996, letter and learned of Respondent's forming a new company and attempting to purchase Pro-Flite, the relationship between the two men became acrimonious. Although Respondent left CAA and withdrew his support of the Pro-Flite purchase, CAA's conceptual lease remained in effect. In or about May 1996, CAA apparently determined that it needed additional time in which to meet the conditions set out in the conceptual lease and, thus, requested that its conceptual lease be extended to December 1, 1996. At its May 14, 1996 meeting, the St. Lucie Airport Authority considered and approved CAA's request for an extension. Respondent abstained from voting on CAA's extension request, and stated that the reason for his abstaining was that he had previously been associated with CAA. On June 10, 1996, Respondent filed a Memorandum of Voting Conflict regarding the CAA extension request. While the conceptual lease was in effect, Curtis King, Director of the St. Lucie County Airport, went to Respondent and told him that CAA was "running behind" in complying with the conditions set forth in the conceptual lease and asked Respondent if CAA "could speed this up." After indicating that there was a possibility that CAA would be unable to meet the deadlines, Respondent asked Mr. King whether CAA might receive a refund of its "nonrefundable" deposit of $3,267 paid pursuant to the terms of the conceptual lease. Respondent then indicated to Mr. King that he had money invested in CAA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that the Respondent, Kenneth Sattler, violated Section 112.313(7)(a), Florida Statutes; imposing a civil penalty of $4,100; and issuing a public censure and reprimand. DONE AND ENTERED this 27th day of July, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1998. COPIES FURNISHED: Eric S. Scott Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Robert Watson, Esquire 3601 Southeast Ocean Boulevard Sewalls Point Stuart, Florida 34996 Bonnie Williams, Executive Director Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie Stillman Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by E. Gary Early, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Daytona Beach Cycles, LLC d/b/a Indian Motorcycle of Daytona, be granted a license to sell motorcycles manufactured by Victory (VICO) at 420 North Beach Street, Daytona Beach (Volusia County), Florida 32114, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed March 8, 2012 9:15 AM Division of Administrative Hearings DONE AND ORDERED this Io day of March, 2012, in Tallahassee, Leon County, J “Baker Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motorist Services this Oy day of March, 2012. 2 Pobias Vinegek Nalini Vinayak, Dealer Kicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jc Copies furnished: Andrew Pallemaerts Volusia Motorsports, Inc. 1701 State Road 44 New Smyrna Beach, Florida 32168 Jonathan Brennen Butler, Esquire Akerman Senterfitt 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 E. Gary Early Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue The issue presented is whether Petitioner's application for site approval and licensure of a private seaplane base near Manatee Springs on the Suwannee River should be approved.
Findings Of Fact By application dated July 18, 1990, Petitioner applied to the Department of Transportation for site approval and licensure for a private seaplane base to be known as Manatee Springs Seabase on the Suwannee River in Dixie County, Florida, seven miles south of Old Town. On the application, Petitioner agreed that the private seaplane base would be for his personal use, that it would not be used for commercial operations, that flight activities from the proposed site would be conducted only during the day, and that operations would only occur in VFR weather conditions. Petitioner owns 362 acres of land with approximately 2,400 feet of that land being riverfront property. Petitioner's property is on the west shore of the Suwannee River. Approximately across from the southern boundary of Petitioner's property is the Spring Run in Manatee Springs State Park. The Park extends a considerable distance to both the north and the south, far beyond the boundaries of Petitioner's property. Approximately 100 feet south of the entrance to Spring Run is the dock of Manatee Springs State Park. Numerous manatee have been sighted around the Park's dock, at the entrance to the Spring Run, in the Spring Run, and in the middle of the River across from the dock. The Suwannee River between Petitioner's property on the west bank and the Park's property on the east bank is between 600 and 700 feet wide. In that area, the Suwannee River is open to all kinds of boat traffic, some of which travels as fast or faster than a seaplane taking off and landing. That area of the River is used by fishing boats, ski boats, airboats, jet skis, houseboats, and canoes. There is a tour boat which travels through the area in question, and canoes can be rented at the Park from a concessionaire. Personnel at the commercial canoe rental business advise renters to stay within 50 to 100 feet from the east shore line, along the Park. However, some renters ignore the instructions and cross the River. Due to the heavier manatee and boat activity at the Spring Run and Park docking area across from the southern portion of Petitioner's property, Petitioner proposes that his landing and take-off area be located just to the north of the northern boundary of his property, away from the entrance to Manatee Springs State Park, in the middle of the River, and in a section of the River which is straighter, which would increase his visibility of boat traffic in the area. Petitioner will place no structures of any kind in the River. Under Petitioner's proposal, he will store his seaplane in an area in the northern portion of his property. No structures will be constructed in this storage area. Petitioner would taxi out from the seaplane's storage area to his take-off and landing area which starts approximately 300 feet north of his storage site. The take-off and landing area would extend approximately 2,600 feet up the River and would be 100 feet wide. Petitioner proposes to use either a two-passenger or four-passenger seaplane. Such seaplanes utilize 100 h.p. and 150 h.p. engines, respectively. Such seaplanes taxi at 3-5 knots per hour, which speed would create the same wake as a canoe. When a seaplane is idling, it creates no wake. When a seaplane takes off, it rotates onto the pontoon step within 15 to 20 seconds and completes take-off within an additional 10 to 15 seconds. The total take-off time is approximately 30-35 seconds, and the seaplane during take-off will achieve a speed of 40-45 m.p.h., less the head wind. The total take-off distance is approximately 1,000 feet. Accordingly, Petitioner would be on the River for approximately 5 minutes of taxiing and 30 seconds of take-off, at which point the seaplane is off the River. The amount of wake created during take-off is 2-3 inches. The distance betwen the entrance to the Spring Run into Manatee Springs State Park and the southern end of Petitioner's proposed landing and take-off area is 3,000 feet. Thus, Petitioner's proposed landing and take-off area is located a safe distance from where boaters and manatee congregate around the Springs. Further, although some of Petitioner's neighbors on the west shore of the Suwannee River tie their boats to trees along the shore, there are no docks extending into the River in or near the area proposed for the landing and take- off strip. There are a public boat ramp at Clay Landing approximately 2 miles above the proposed seaplane landing area, a public boat ramp somewhere south of the Park, and a third public boat ramp somewhere in the Park. The boat ramps are not close enough to Petitioner's proposed landing and take-off strip to pose any threat to their users from Petitioner's proposed use of his seaplane. Petitioner is a licensed pilot, who possesses all appropriate ratings and has passed the required physical examinations. He learned to fly in 1940 and operated a seaplane base in Fort Walton during the 1940s and 1950s. He was then employed as a pilot for Eastern Airlines for 33 years. He has 18,000 hours of flying time, which includes 1,000 hours of flying seaplanes. He will carry liability insurance on his seaplane of at least $100,000. Petitioner understands that when his seaplane is on the water, it is subject to the rules and regulations governing boats and other watercraft. Accordingly, when "no wake" restrictions are in effect on the Suwannee River when the River is high, Petitioner cannot use his seaplane base. The Department's aviation specialist assigned to process Petitioner's application for site approval visited Petitioner's property on five separate occasions, observing boat traffic on the River during his visits. On one occasion, he spent the day counting the boat traffic and estimating intervals of traffic relative to landing and take-off times. Although the River was high on that occasion, it was during a weekend when boat traffic would be heavier than during the week. He determined that the proposed location of Petitioner's seaplane base was a safe location and that Petitioner's activity would not constitute a hazard to boating traffic. The Department issued its Notice of Intent to approve Petitioner's seaplane base, subject to several conditions: All operations are conducted during daylight hours and during VFR weather conditions only. Operations are prohibited on long holiday weekends that generate a high volume of river traffic (Memorial Day, 4th of July, Labor Day). A non standard traffic pattern be used, all traffic patterns will be to the west of the extended runway center line to prevent over flight of Manatee Springs State Park. Pursuant to the Department's regulations, Petitioner was required to provide notice of his application to all property owners within 1,000 feet from any boundary of the airport operational area, and the Department's Notice of Intent was published notifying interested persons that a public meeting would be conducted, if requested, on Petitioner's application. A number of persons attended the public meeting, some of whom supported Petitioner's application, but the majority of whom opposed Petitioner's application. After the public meeting, the Department issued a letter denying Petitioner's application, citing the concerns voiced at the public meeting. Additionally, the denial letter advised Petitioner that the Trustees of the Internal Improvement Fund have state sovereignty jurisdiction of the River area where the proposed seaplane base would be located and that Petitioner would, therefore, need appropriate authorization from the Trustees through the Department of Natural Resources to use the sovereign submerged land. That letter further advised Petitioner that the Trustees' jurisdiction is subject to the navigation servitude of the federal government and that Petitioner, therefore, would need a permit from the Army Corps of Engineers to use the proposed site on the Suwannee River as a seaplane base. Although the statutes and rules regulating the Department's site approval and licensure of airports and seaplane bases do not contain a requirement for authorization from the Trustees or the requirement of a permit from the Army Corps of Engineers, Petitioner contacted those agencies. By letter dated June 28, 1991, the Florida Department of Natural Resources advised Petitioner as follows: Please be advised that you do not need authorization for the use of state-owned submerged lands if you are not storing your sea plane waterward of the Ordinary High Water Line of the Suwannee River, constructing structures waterward of the Ordinary High Water Line, or impacting state-owned submerged lands and resources when removing your seaplane from the Suwannee River. Petitioner's proposal does not contain any of those characteristics. By letter dated September 6, 1991, the Department of the Army, Jacksonville District Corps of Engineers, advised Petitioner that no authorization or permit was required for his proposed seaplane base. Petitioner can safely take-off and land in his proposed strip without presenting a danger to boaters and swimmers any greater than the risk presented by other fast moving vessels currently permitted to utilize the Suwannee River in the area under question. The height of a seaplane propeller poses no danger to swimmers or manatee. One must be fully licensed and trained to operate a seaplane, while one needs no training or licensure to operate a speed boat. The height of a seaplane presents a better view of obstacles in the River than the view of someone in a boat or in the River. A seaplane offers the ability to stop quickly or "pull up" in a split second to avoid something coming quickly into the path of the seaplane. Although the Florida Department of Natural Resources advised Petitioner that he did not need authorization to use the state-owned submerged lands of the Suwannee River, employees of the Division of Recreation and Parks of the Department of Natural Resources testified at the final hearing in opposition to Petitioner's application. Those employees believe that Petitioner's proposed landing and take-off area is within the jurisdiction of the Division of Recreation and Parks pursuant to a Management Agreement entered into between the Division and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. That Management Agreement entered into on November 24, 1986, and amended on January 19, 1988, does grant management responsibilities to the Division over: All those sovereign submerged lands lying within 400 feet of the Mean High Water or Ordinary High Water Line, or in the case where the shoreline is vegetated with. . .wetland vegetation, within 400 feet of the emergent edge of the vegetation, and within the riparian area of any state park. . .administered by the Division of Recreation and Parks . . . . Petitioner's proposed landing and take-off strip is within 400 feet of the emergent edge of the vegetation of Manatee Springs State Park. That Management Agreement, however, also provides that the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida retained the right to also engage in management activities over those sovereign submerged lands and further provides that the Management Agreement is not to be construed in any way to interfere with the traditional riparian rights of private landowners. Lastly, that Management Agreement required the Division of Recreation and Parks to submit to the Board for its approval a management plan for those submerged lands and prohibited the Division from engaging in activities not provided for in the required plan without the advance written approval of the Board. There was no evidence indicating that the Division had adopted any management plan for the area under consideration in this cause. Further, no explanation was offered as to how the Division of Recreation and Parks could impose requirements not imposed by the Department of Natural Resources.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's airport site approval and license application, with the conditions set forth in paragraph numbered 13 of this Recommended Order. DONE and ENTERED this 26th day of November, 1991, 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 26th day of November, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4391 Respondent's proposed findings of fact numbered 1-4 have been adopted in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as not constituting a finding of fact. Respondent's proposed finding of fact numbered 6 has been rejected as being subordinate to the issues involved herein. Copies furnished: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building Attn: Eleanor F. Turner 605 Suwannee Street Tallahassee, Florida 32399-0458 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Henry C. Fucik, 8290 S.W. 58th Street Miami, Florida 33143
The Issue Whether the application of Respondent Gulf County (County) for permit to install a beach access road, constructed of oyster shell or dolomite, at the stumphole area on Cape San Blas should be granted.
Findings Of Fact On April 11, 1996, the County applied for a permit from DEP to install a beach access road constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide at the stumphole area on Cape San Blas. The County owned the property at the site where a crude road bed to the beach already existed. On that same date, County Manager Donald Butler met with a DEP field engineer, William Fokes, on the site to determine the linear footage that would be necessary for the access road at the stumphole area. Fokes then issued the field permit for the access road to be constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide. Since beach driving is permitted by the County in the area, the access road aids in preventing illegal crossing of beach dunes by motorists to get to the beach. Prior to issuance of the field permit and construction of the access road, the only legal motorist access to the beach was seven miles away. Permits to drive on the beach are issued by the County. DEP rules require that all applicants proposing to conduct permitted activities on a beach use a designated beach access. This road will allow access to conduct permitted activities, thereby preserving and enhancing public beach access. DEP will not permit a project that is expected to adversely impact the beach dune system. Although seaward of the Coastal Construction Control Line (CCCL) in the County, the area which is the subject of this field permit contained no dunes or vegetation since Hurricane Opal had flattened the area. Such a project cannot be permitted if the project will adversely impact existing upland property or property of others. In the instant case, neither the Petitioner’s property, which is located two miles away from the project site, or property of other owners in the area will be adversely impacted. The road is designed to be a non-rigid, pervious structure which causes less impact to any existing dune system. The road site is located on County property and provides logical and appropriate access. The construction of the road did not violate DEP prohibitions on permitting activities having adverse impact to marine turtles since the construction permit expired prior to the turtle nesting season. A requirement of field permit issuance is that the applicant and the DEP area engineer meet on site and review the project. This event occurred on April 11, 1996, when Butler and Fokes met on the site. Fokes determined that the project was within field permitting guidelines and issued the permit. Fokes was authorized to issue the field permit because the project fell in DEP’s category of a driveway or similar activity. Expected impacts of construction of the access road and a driveway are deemed similar by DEP. Subsequent review by DEP staff of Fokes’ issuance of the field permit determined that sufficient information had been provided to him for issuance of the permit, that the project falls in the category of minor activity and that no adverse impact to dunes, property of others, beach access or nesting marine turtles is expected.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered confirming the grant of the field permit which is the subject of this proceeding. DONE and ENTERED this 9th day of May, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1997. COPIES FURNISHED: Lynette L. Ciardulli, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, FL 32399-3000 Michael Paulsson, Pro Se Route 1, Box 347B Port St. Joe, FL 32456 Timothy J. McFarland, Esquire Post Office Box 202 Port St. Joe, FL 32457 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
