The Issue Whether a vessel is owned by Petitioner, Jonathan Selby, and is a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2020), and City of Riviera Beach Derelict Vessel Policy, No. 4.2., and therefore, subject to the provisions of section 705.103, Florida Statutes.
Findings Of Fact Petitioner is the owner of the 1987 Wellcraft marine vessel, Florida Boat Registration Number FL5632FV (HIN: WELC24661687)(the “vessel”), that sunk on the north side of the Riviera Beach Marina. Riviera Beach Marina is in the City of Riviera Beach. The vessel broke free from a mooring in a storm and is now in a wrecked, junked, or substantially dismantled condition. Therefore, the vessel is a “derelict vessel” as defined in section 823.11(1)(b)1., and the City of Riviera Beach Derelict Vessel Policy, No. 4.2. There was no evidence presented that the vessel became derelict because of the negligence of Petitioner.
Findings Of Fact The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned property. Title is held by the Board of Trustees of the Internal Improvement Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns County. Within the boundaries of the Preserve is included the Guana River State Park (the Park). It, too, is state-owned. It is managed and operated by the Division of Recreation and Parks (the DRP) of the Department of Environmental Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are included within the boundaries of the Park. The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in the Preserve is the area of the beach between mean high water and mean low water. The mean high water line is essentially the landward extent of the ocean at mean high tide; the mean low water line is essentially the landward extent of the ocean at mean low tide. When the tide is low, this entire area of the beach is exposed. It remains wet and, generally, relatively hard-packed during the time it is exposed. However, there are beds of "red shell" in this part of the beach that are softer. In the summer, this part of the beach averages approximately 50 feet in width. In the winter, when the waves and tides generally are higher, it is narrower. In the Preserve, the mean high water line usually is indicated both by debris washed up during the highest tides and left on the beach and by a "shelf." This "shelf," made by the erosive action of the ocean waves during the highest tides and during storms, rises at an angle of approximately 45 degrees and can be from one to four or five feet high. Landward of this shelf is the "dry sand" or "soft sand" beach, also sometimes referred to as the "upper beach." It extends landward from the mean high water line to the vegetation line, where the dunes start. Usually, some pioneer vegetation is found in the uppermost reaches of this part of the beach, forming what is called the "foredune" area of the beach. The tides along the Atlantic Ocean beaches in the Preserve are semi- diurnal, i.e., there usually are two high tides and two low tides a day. These high and low tides last approximately one hour, and each day they occur approximately an hour later than they did the day before. There are five beach access points with motor vehicle parking areas located along U.S. Highway A1A within the Preserve. Three are within the Park. There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five parking areas. There also is a current proposal for the addition of three more access points in the Park, with parking for a total of 340 vehicles, five beach bathhouses, and five pedestrian overpasses. There are many other places where pedestrians can walk from A1A to the beaches, including 30 County-controlled access points. But there are no lawful parking areas adjacent to any of these other access points at this time, and parking on the right-of-way of A1A is prohibited. Currently, the only lawful motor vehicle access to the Atlantic Ocean beaches in the Preserve is to the south of the Preserve. Prior to the agency action challenged in these proceedings, motor vehicles lawfully could be driven onto the beach at this access point and be driven north into the Preserve, so long as they remained below the mean high water line. A former access near the north end of the Preserve has been cordoned off. To leave the Preserve, motor vehicles would have to be turned around and driven back south to the same motor vehicle access point. Due to the restricted access to the Atlantic Ocean beaches in the Preserve, not much use is made of those beaches. In comparison, beaches to the south are used much more heavily. Of the relatively few who use the motor vehicle access to the south and drive on the beach north through the Preserve, some ultimately use the beaches to picnic, swim, surf, beach-comb and similar activities; some probably just drive on the beach. There was no evidence quantifying the uses currently being made of the beaches in the Preserve. In the past, homemade motor vehicles called "skeeters" were built with a light-weight chassis and over-sized wheels. They were used for driving on both the hard and soft areas of the beaches, as well as illegally in the dunes. This practice has been curtailed due to better enforcement of the prohibitions against driving in the dunes, a generally heightened environmental consciousness among the public, and prohibitions against driving the "skeeters" on public highways. Generally, there has been less driving on the beaches of the Preserve in recent years, although the practice persists at a reduced level. At all times of the year, it sometimes is impossible to drive along the entire length of the beaches in the Preserve without driving on the soft sand area. This is especially true during the winter months when the waves and tides are higher and storms are more frequent. But even in the summer months, there are times when "red shell beds" in the "wet sand" part of the beach must be circumvented to avoid getting stuck. Especially when the tide is not at its lowest, the only way to avoid some of these "red shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on the tides, this may also be necessary in order to turn a vehicle around on the beach. In many places, the "soft sand" area is not very wide, and it would be necessary under those circumstances to drive in the "foredune" area. The times of the daily high and low tides can be obtained relatively easily by members of the public. But there is no assurance that all persons who would drive on the beaches would know the times of the tides. Nor is there any assurance that persons who drive the "wet sand" or "hard sand" part of the beaches at low tide also would plan to both start their beach drive and their return trip during low enough tides to be able to avoid driving on the "soft sand" part of the beach. For these and other reasons, it would be difficult, if not practically impossible, to effectively monitor beach driving throughout the Preserve and consistently enforce a restriction to driving only on the "wet sand" or "hard sand" areas of the beach. In the summer months, sea turtles lay eggs in nests dug in the sand of the foredune and dune areas of the Atlantic Ocean beaches in the Preserve. After a period of incubation in the nests, the turtle hatchlings dig themselves out of the nests and crawl to the ocean to begin their lives in the sea. Driving motor vehicles over nests on those parts of the beaches in the summer months could crush eggs in their nests or pack the sand hard enough to reduce the number of hatchlings that emerge from the nest alive. In addition, driving motor vehicles in these area, even in other parts of the year, can leave ruts in the beach that disorient hatchlings that leave the nests in summer so that fewer reach the ocean alive. Sea turtles crawl out of the ocean to their nest sites at night. Artificial lighting can disturb their nesting and egg-laying activities. However, it seems that moving lights, or lights that turn on and off (in the manner of car lights), create more of a disturbance than stationary lights, such as those more often found at residences along the beaches in the Preserve. The Management Plan does not prohibit artificial lighting along the beaches in the Preserve, but it recommends that further attention be given to this problem and that ways to address the problem be explored and pursued in cooperation with the County. Various shore birds, including the threatened least tern, make their nests in the foredune area of the beaches in the Preserve. Driving on the foredunes destroys and disturbs nesting habitat and disturbs the nesting activities of these birds. In addition, both these ground nesting shore birds and a variety of migratory birds make use of different areas of the beaches to rest and feed. Driving on the beaches disturbs these activities, as well. The only known nesting colony of least terns in St. Johns County is located in the Park, where beach driving is prohibited. The Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to prohibit driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park. At least parts of the beaches in the Park have been posted as areas where driving motor vehicles is prohibited. In order to develop a management plan for the Preserve, the manager of the Preserve personally researched the geology, climate and natural resources of the Preserve, as well as the records of the County, and also collected data pertaining to the Preserve from several state agencies. Over the course of a year, the manager's input was taken into consideration, and a management plan, called the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), was developed for the Preserve. It was adopted by the Board of Trustees of the Internal Improvement Trust Fund on December 17, 1991. The Management Plan recites in pertinent part: At the present time, motorized vehicular traffic is permitted, by county ordinance, below the natural vegetation line on the beaches adjacent to the Atlantic Ocean in St. Johns County. Vehicles are not allowed on the 4.2 miles of beach within Guana River State Park. The coarse coquina sand and steep profiles of the beaches in the preserve make driving on the wet sand area difficult. Drivers are forced to cross the dry sand area, damaging the foredunes, pioneer dune vegetation and sea turtle nesting habitat. Due to the negative environmental impacts resulting from this activity, motorized vehicular traffic shall not be considered an authorized activity on sovereign submerged lands within [Prime Resource Protection Area] PRPA beach management areas of the preserve, and therefore will be prohibited. Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are Prime Resource Protection Area, and the driving of motorized vehicles on them is prohibited. On June 11, 1993, the DEP's DRP sent St. Johns County a letter advising that, based on the Management Plan, DEP no longer would permit the driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or about August 18, 1993, the DEP agreed not to enforce the beach driving prohibition in the Preserve until these cases are resolved.
Findings Of Fact Respondent, Philip Lee Sullivan (Sullivan), has served as Chief of Police for the City of Panama City Beach, Florida since August 10, 1977. Sullivan's salary as Police Chief was $62,326.12 in 1994, and will total $63,211.20 in 1995. As Police Chief, Sullivan's duties include planning, organizing, and directing all activities of the Panama City Beach Police Department. He is also charged with supervision of all members of the police force, with particular attention to personnel at the administrative and supervisory level, and with the investigation and disposition of complaints against police officers. In his official capacity, Sullivan is also required to cooperate with state and federal officers in the apprehension and detention of wanted persons and with other agencies where activities of the police department are involved. Sullivan has the authority to take disciplinary action against an employee of the police department up to and including suspension without pay for 30 days, and can recommend termination to the City Manager. He also completes written performance evaluations on members of his command staff, which is comprised of the Patrol Division Commander, the Investigative Division Commander, the Assistant to the Chief, and the Reserve Division Commander. In 1987, Sullivan began a business as a loss prevention and security consultant, operating as a sole proprietorship. Sullivan's first client was Hilton, Inc. Charles Hilton is the Chief Executive Officer of Hilton, Inc. It was Mr. Hilton who made the initial decision to hire Sullivan. He considered one other person for the work, but rejected that individual based on the fee sought. Sullivan verbally sought approval from the City Manager to contract with Hilton, Inc. The City Manager verbally approved the arrangement. Hilton, Inc. owns and operates five hotels in Panama City Beach: The Holiday Inn Sun Spree, Ramada Inn, Days Inn, Best Western Del Coronado, and Best Western Casa Loma. All except Sun Spree, which was added in 1990, were owned by Hilton, Inc., when Sullivan began contracting with the corporation. Hilton, Inc. pays Sullivan $2,000 a month with an additional fee for background checks. Sullivan's next client was the Bay Point Improvement Association (Bay Point). Bay Point is outside the city limits of Panama City Beach. By letter dated February 2, 1989, Sullivan formally requested approval from the City Manager to accept the position of Director of Security for Bay Point. Approval was granted by letter dated February 15, 1989. Sullivan was initially hired in February, 1989, as Director of Security, but his employment status was subsequently changed to that of an independent contractor, similar to his position with his other private employers. Bay Point pays Sullivan $18,000 per year for his services. Sullivan's next client was the La Vela Beach Club ("La Vela") in March, 1993. He was hired by the club's owner, Alois Pfeffer. Sullivan no longer works for the La Vela Beach Club, but while he was working for the club he was paid $6,000 per year. Sullivan's next client was Boardwalk Beach Resorts, which hired him in September, 1993. Boardwalk Beach Resort is the fictitious name for a limited partnership, Resort Hospitality Enterprises, Ltd. ("Resort Hospitality"). The majority of the stock of Resort Hospitality is owned by People's First Properties, Inc. ("People's First"). Resort Hospitality owns and operates four hotel properties, totaling approximately 625 rooms, on Panama City Beach. Robert Henry, the chief financial officer for People's First, was the person who decided to contract with Sullivan after independently determining to the satisfaction of People's First that Sullivan did not have a conflict of interest. People's First pays Sullivan $18,000 per year with additional fees for background checks. In 1994 Sullivan was paid $6,450 for background checks and as of September 11, 1995, he was paid $4,720 for the background checks performed in 1995. Sullivan incorporated his business as Beach Security, Inc. on December 12, 1993. Sullivan's next client was the Miracle Strip Park/Shipwreck Island (Miracle Strip). He was hired in May, 1994 by the Miracle Strip's General Manager, Shelton Wilkes. Miracle Strip is located on Panama City Beach. Sullivan receives $7,200 per year from Miracle Strip. Sullivan's next client was Spinnakers, where he was hired in July, 1994, by W. B. Sparkman, III. Spinnakers paid Sullivan $6,000 per year. As of the date of the final hearing it was not known whether Spinnakers would continue its contract with Sullivan for the next season. Except for Bay Point, there are no written contracts between Sullivan and any of the businesses with which he contracts. Sullivan has no job description, no set work hours, and no regular meetings with his employers. As part of the services offered by Beach Security, Sullivan makes recommendations to his clients in developing their safety and security policies and procedures, particularly with respect to policies, procedures and training for the security staff. The ultimate decision whether to implement any of Sullivan's recommendations rests with Sullivan's clients. Sullivan is also expected to defend those policies and procedures in court as an expert witness in the event his employer adopts his recommendations and is sued. Sullivan neither sets nor manages security for his clients. He makes recommendations. Sullivan does not hire, fire, or make other employment decisions for the security personnel of his clients. He does not supervise or evaluate the performance of his clients' security staff on a daily basis, and does not evaluate the individual performance of any of his clients' employees. As part of Sullivan's services to Hilton, Inc., Boardwalk Beach Resort and La Vela, Sullivan did background checks for potential employees. Sullivan hired an employee of the police department to do the background checks for him. The background checks were performed at the Bay County Courthouse for local applicants. If the information needed was located in another county or state, Sullivan would contact the clerk of the court at the appropriate location for the information. Getting information from another county or state can be a slow process. The information which Sullivan uses in doing the background checks is information which is available to the general public. The Police Department of Panama City Beach (Police Department) has an agreement with the Florida Department of Law Enforcement to allow the Police Department access to criminal history record information. Access to the information is limited to police department business. If a police department employee desires to access the information, the employee must log in on the computer, which creates a computer-generated log at FDLE. Sullivan personally does not know how to access the information. Sullivan could request a police department employee to access the information for him. Panama City Beach is a popular resort area, which experiences a large influx of teenagers and young adults during spring break. Problems associated with alcohol consumption, including traffic violations and accidents, assaults, and disorderly conduct, are commonplace police concerns, particularly during spring break. Spinnakers and La Vela are clubs located on Panama City Beach which cater to the spring break crowd and serve alcohol. The La Vela has a capacity for about 6,000 people and Spinnakers about 4,000. The Hilton, Inc. hotels, the Boardwalk Beach Resort, and the Miracle Strip also do heavy spring break business. The Miracle Strip deals with more than 600,000 visitors over the course of its season. The police department investigates crimes and responds to calls and complaints made by citizens. The department also investigates accidents and is routinely called any time an ambulance is called. In the past two years the police department has received more than five thousand calls for service at businesses which are located in Panama City Beach and which contract with Sullivan. No evidence was presented that Sullivan has ever disregarded public duty in favor of private interests, or misused confidential police information for the benefit of his private employers. In February 1993, Spinnakers was sued for the wrongful death of one of its patrons. The Complaint alleged that the deceased, Robert Gaither, was involved in an altercation with one or more of the club's other patrons. Spinnaker security became involved, and the other patrons were ejected. When Mr. Gaither left, security allegedly saw these individuals in Spinnakers' parking lot, but took no action. After leaving the club, Mr. Gaither was beaten to unconsciousness by these same people, and was either left or passed out in the street, where he was run over by a drunk driver. The Complaint alleges that Spinnakers' security staff was negligent in its handling of the incident. Although the incident took place before Spinnakers hired Sullivan, Sullivan has given a deposition in the case as a potential expert witness. The Panama City Beach Police Department investigated the death of Mr. Gaither. Part of Sullivan's services to Le Vela has been to instruct its staff on how to handle fights. The owner of the club has complained to Sullivan about reaction from Panama City Beach police officers when fights have occurred at the club. It is the club owner's observation that the police, in protection of their own physical safety, often leave the burden of breaking up a fight to the security officers, or wait until the participants wear themselves out. Since the club's insurance will not pay for damages if the club's security officers get involved in the fight, the owner wants the police officers to intervene at an earlier stage in the fight and has so complained to the police department. At the June 23, 1994 meeting of the Panama City Beach City Council, Sullivan's outside employment as a consultant was thoroughly discussed. Sullivan gave a detailed account of his operation. At that meeting the City Council voted to continue the City's policy of encouraging outside employment of its police officers and allowing police officers to use the police vehicles during off-duty hours as long as the police officer is on call. On October 12, 1995, the City Council of the City of Panama City Beach enacted Ordinance No. 455, which codified the rules governing secondary or off- duty employment by employees of the City of Panama City Beach. Section 2-46 of the ordinance deals specifically with law enforcement officers, including the Chief of Police. Section 2-46(d)(1) of Ordinance 455 provides: The following types of off-duty employment do not, on their face, constitute a conflict of interest for law enforcement officers: Security guard duty protecting premises or property. Security consultant within or without the City. Providing dignitary or official's protection. Conducting pre-employment checks into the applicant's previous criminal history provided that only public records are accessed. Performing accident investigations or providing technical services as otherwise per- mitted by the Department. Ordinance 455 requires that police officers who desire to have outside employment must submit an "Off-Duty Employment Request" form. The forms were made available to the police officers sometime during the early part of December, 1995. Shortly after Sullivan received the forms, he submitted authorization requests for off-duty employment with Bay Point Resort, Miracle Strip Amusement Park, Boardwalk Beach Resort, and Hilton, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Philip Lee Sullivan's employment with businesses within the jurisdiction of the Panama City Beach Police Department and his employment in doing pre-employment application background checks is in violation of Section 112.313(7)(a), Florida Statutes, and recommending that Philip Lee Sullivan be dismissed from his employment as Police Chief of the Panama City Beach Police Department. DONE AND ENTERED this 21st day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 21st day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4141EC To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraph 5: Accepted to the extent that the computer database can be accessed from the Police Department but rejected to the extent that it implies that Sullivan, himself, can physically access the information based on his testimony that he does not know how to operate the computer to get the information. Paragraph 6: Rejected as subordinate to the facts found Paragraph 7: Accepted in substance. Paragraphs 8-12: Accepted. Paragraph 13: The first two sentences are accepted. The remainder is rejected as unnecessary. Paragraphs 14-21: Accepted. Paragraph 22: Rejected as unnecessary. Paragraph 23: The first sentence is rejected as constituting argument. The remainder is accepted. Paragraphs 24-28: Accepted. Paragraphs 29-32: Accepted in substance. Paragraphs 33-34: Accepted. Paragraph 35: Rejected as unnecessary. Paragraph 36: The first sentence is accepted in substance to the extent that the information is available at the Police Department and can be accessed by Police Department staff pursuant to an agreement with FDLE. The remainder is accepted in substance. Paragraph 37: Accepted in substance except for the employment outside the police department jurisdiction. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted in substance that Sullivan requested approval for employment as Director of Security for Bay Point. Rejected to the extent that the request could be construed as a request for blanket approval for Sullivan to do security consulting services. It appears from Sullivan's letter that his employment at that time dealt with more than consulting services given that he had the authority to hire, fire, and direct the security force at Bay Point. Paragraph 3: Accepted to the extent that Beach Security Inc. was incorporated in December, 1993. Paragraph 4: Accepted in substance. Paragraph 5: Accepted to the extent that Sullivan has submitted the off-duty employment authorization requests. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as constituting argument. Paragraph 8: Rejected as subordinate to the facts found Paragraph 9: Rejected as constituting argument. Paragraph 10: Rejected as constituting argument. Paragraphs 11-15: Accepted in substance. Paragraph 16: Accepted as not supported by the greater weight of the evidence. Paragraph 17: The last sentence is rejected as not supported by the greater weight of the evidence that such an arrangement could not tempt dishonor. The remainder is accepted in substance. Paragraph 18: The first sentence is rejected as not supported by the greater weight of the evidence. The first part of the second sentence is accepted in substance. The last part of the second sentence is rejected to the extent that although the businesses were anticipating that Sullivan would gather his information from public records, human nature being what it is, if Sullivan knew that an applicant was a suspect in a criminal investigation the employers would not want Sullivan to recommend that the applicant be hired. Paragraphs 19-22: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Virlindia Doss Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Mary Ellen Davis, Esquire Hilton, Hilton, Kolk, Penson & Roesch Post Office Box 1327 Tallahassee, Florida 32308 Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Upon consideration of my observation of the witnesses and their demeanor while testifying, documentary evidence received including the parties pre- hearing stipulation, the following relevant facts are found: Respondent DOT filed a dredge and fill permit based on its application filed with Respondent DER and proposed to upgrade a 4.9 mile segment of State Road 80 from a 2-lane roadway to a rural 4-lane divided roadway which included construction of new north and south bound bridges over a canal (designated as L- 8) and constructing a triple box culvert to replace the existing bridge over Callery Judge Canal, located from 20 mile bend to 5.5 miles west of State Road 7, Palm Beach County, Florida. (Joint Composite Exhibit 1). Respondent DER published the required notice of its intent to issue the applied for permit by DOT in the April 14, 1986 edition of the Palm Beach Post Times, a newspaper of general circulation. Petitioner is the fee simple owner of the property located to the west of Callery Judge Canal. Petitioner's property includes a drainage easement which has been given to the Seminole Water Management District and includes submerged portions of the canal. Callery Judge Canal is a water control structure. Callery Judge Canal is connected to another canal designated as C-51, which is also a water control structure. The length of Callery Judge from the C-51 Canal extends approximately 400 feet. There are water control structures at the end of Callery Judge Canal and approximately 4 miles both east and west of the C-51 Canal. As such, there is limited navigability of the C-51 Canal by Petitioner. The C-51 Canal is used by Petitioner and unidentified public members for recreational navigation purposes. There is no commerce navigation on either the C-51 or Callery Judge Canal. Petitioner currently has navigational access to C-51 through Callery Judge. Petitioner owns two boats which he has from time to time used on the Callery Judge Canal to get to the C-51 Canal. Both C-51 and Callery Judge Canal are Class 3 water bodies. Respondent DER has dredge and fill jurisdiction over both canals as they connect to state waters. Respondent DOT, in addition to publishing notice in the Palm Beach Post Times, sent written notice to adjacent property owners advising them of DOT's application and only Petitioner protested based on his claim of impaired navigation from Callery Judge to C-51. Additionally, Petitioner objected on the basis that the project would adversely affect his riparian rights of access to C-51 and that the effect of issuing of the requested permits would amount to the taking of private property without first making payment of full compensation to him. The existing bridge which expands Callery Judge Canal does not meet state safety practices inasmuch as there is only the approximately 2 feet between the edge of the travel lane to the face of the railing. This space provides only a 2 foot recovery lane for disabled vehicles. With the triple box culverts as applied for by DOT, an adequate recovery lane of approximately 10 feet will be provided which meets state safety requirements for recovery lanes. (Testimony of Midgett). The triple box culverts will allow for DOT to complete its planned widening of the bridge on both ends and thereby eliminate adverse safety concerns relating to traffic "bottle necking." Fish, alligators, and other wildlife will be able to continue passing from Callery Judge to C-51 after installation of the triple box culverts as proposed by DOT and therefore there will be no adverse impacts on fish and wildlife conservation. The proposed culverts will allow drainage to continue and water flow will not be constricted. Following construction of the triple box culverts, Petitioner may continue to enjoy other riparian rights that he presently enjoys. Thus, Petitioner may continue to swim and bathe in Callery Judge Canal. Petitioner may also continue to navigate Callery Judge for fishing and other recreational purposes. There are no marinas, boat lifts, boat ramps or other facilities on C- 51 or Callery Judge Canals which would provide navigation access to the canals by the general public. The one boat facility in either canal is a boat ramp in C-51 maintained by the South Florida Water Management District. The Palm Beach County Health Department, a local approved DER program, (pursuant to Section 403.916, Florida Statutes), reviewed the subject application and determined that DOT's application, with modifications incorporated in Respondent DER's intent to issue, provided the reasonable assurances and was in the public interest pursuant to Section 403.918(2), Florida Statutes. Petitioner's riparian rights to navigate Callery Judge Canal and access to C-51 would be impaired by the Respondent DOT's installation of the triple box culverts as applied for. However, when these adverse impacts are balanced against the other factors as required pursuant to Section 403.918(2), Florida Statutes, Petitioner's adverse impacts are considered to be negligible. Respondent DOT has provided Respondent DER reasonable assurances that water quality standards will not be violated based on the proposed project. Respondent DOT has provided Respondent DER reasonable assurances that by use of turbidity screens during construction of the culverts, turbidity values 50 feet down stream from the project site will not exceed 29 N.T.D.'s above background.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent, Department of Environmental Regulation, grant Respondent, Department of Transportation, a dredge and fill permit as set forth with the conditions accompanied in its Notice of Intent to Issue, based on the determination herein that the proposed activities are not contrary to the public interest. RECOMMENDED this 18th day of December, 1986, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1846 Rulings on Respondent, Department of Environmental Regulation's proposed Recommended Order. Paragraph 12, adopted as modified, paragraphs 12, 17 and 18, Recommended Order. Paragraph 13, adopted as modified, paragraphs 15 and 16, Recommended Order. Paragraph 18, rejected as unnecessary for resolution of the issues. Paragraph 19, adopted as modified, paragraph 15, Recommended Order. Paragraph 21, first sentence adopted and remainder rejected as being speculative or conclusionary. Paragraph 24 the parties Stipulation and other statements respecting the parties positions were not incorporated in the Recommended Order as being unnecessary or was not the subject of testimony based on the stipulation. Rulings on Respondent, Department of Transportation's proposed Recommended Order. Paragraph 1 adopted as modified, paragraph 8, Recommended Order. Statutory and Code provisions are not recited in the Recommended as findings of fact. However, official notice was taken of the pertinent rules, regulations and statutory provisions. Paragraph 4 substantially adopted, paragraphs 3, 4 and 5, Recommended Order. Paragraph 12 rejected as being unnecessary to determine the issues posed herein and based on the ultimate determination that the project was in the public interest, paragraph 15, Recommended Order. Rulings on Petitioner's proposed Recommended Order. Paragraph 5, first sentence attributable to Respondent, Department of Transportation, rejected as no evidence was introduced to substantiate that Respondent DOT was unaware that Petitioner was owner and holder of a riparian property right of access. Paragraph 4, last sentence rejected as evidence adduced indicates that Petitioner's rights to gain access between his riparian lands and the C-51 canal was considered, paragraph 16, Recommended Order. Paragraph 5, last sentence rejected as there was a determination that the proposed project was in the public interest and that any impairment of Petitioner's access was counter balanced against public considerations as required in Section 403.918(2), Florida Statutes. Paragraph 16, Recommended Order. Paragraph 6, rejected as being contrary to other credited evidence which indicates that the proper balancing test was in fact made. See paragraphs 10-18, Recommended Order which deals with the consideration of the public interest criteria set forth in Section 403.918(2), Florida Statutes. COPIES FURNISHED: Mark S. Ulmer, Esquire 200 SE Sixth Street, Suite 404 Ft. Lauderdale, Florida 33301 Mel Wilson, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32301 Karen A. Brodeen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues are whether Respondent violated section 112.313(6), Florida Statutes (2018), by exhibiting inappropriate behavior toward city staff; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent served as a city commissioner of Madeira Beach from 2007 through March 2013, and was reelected to the office in March 2017. Shane Crawford served as the city manager of Madeira Beach from January 2012 through July 2017. Cheryl McGrady Crawford served as a full-time employee of Madeira Beach in different capacities: intern for the planning and zoning coordinator; in the building department; and city clerk. In addition, she served as the executive assistant to then-City Manager Shane Crawford from September 2012 through February 2017, where her job responsibilities included acting as deputy clerk when the city clerk was unable to attend a function or meeting. David Marsicano has been serving as Madeira Beach’s public works and marina director for 17 years. Travis Palladeno served as the mayor of Madeira Beach from 2011 through 2017. Terry Lister served as a city commissioner of Madeira Beach from 2008 through 2018. Francine Jackson was a Madeira Beach employee for approximately 11 years. Her last position was as the assistant to Public Works Director Marsicano from 2012 through 2014. Thomas Verdensky is the president of the Old Salt Foundation, which is a volunteer organization. Joseph Campagnola is a retired 13-year New York City police officer who has volunteered as head of security (coordinates sheriff’s department and personal guards) for Old Salt Foundation events for the past nine years. Nicole Bredenberg was present at the November 3, 2012, Madeira Beach City Commission (“City Commission”) meeting. Respondent is subject to the requirements of chapter 112, part III, the Code of Ethics for Public Officers and Employees, for her acts and omissions during her tenure as a city commissioner of Madeira Beach. See § 112.313(6), Fla. Stat. and City Charter Section 2-31 Duties and Responsibilities. As a city commissioner of Madeira Beach, Respondent took an oath “to faithfully perform the duties of [her] office and the Constitution of [sic] the laws of the State of Florida and the United States of America.” As a city commissioner of Madeira Beach, Respondent was prohibited from interfering with administration as provided: “The Board of Commissioners nor any member thereof shall give orders to any subordinate or Officer of said City, either publicly or privately, directly or indirectly.” As a city commissioner, Respondent’s responsibilities included attending City Commission meetings, regular or special. At the City Commission meetings, the city clerk is responsible for taking the meeting minutes. If the city clerk is unavailable, a substitute is needed or the meeting cannot be held. Mr. Palladeno told the new Madeira Beach city manager, Shane Crawford, that he wanted an outdoor meeting since they are a beach community. In November 2012, an outdoor City Commission meeting was held in conjunction with the King of the Beach Tournament, a fishing tournament occurring biannually in Madeira Beach. The meeting was to recognize Bimini, Bahamas, as Madeira Beach’s sister city with a presentation of a key to the city and a proclamation. The King of the Beach Tournament is organized by the Old Salt Fishing Foundation. The event was held on a baseball field having field lights, which turned on as it started to get dark. Respondent was present at this event in her official capacity to participate in the meeting. She had consumed alcohol at the all-day fishing tournament. Then-city clerk, Aimee Servedio, could not attend this meeting, so a substitute was required or the meeting could not go forward. Ms. McGrady (prior to her becoming Ms. Crawford) had been assigned the role of deputy clerk and was prepared to take minutes. Respondent dislikes Ms. Crawford because she believed, without any proof produced at hearing and a firm denial at hearing by Ms. Crawford, that she and Shane Crawford were having an affair at the time of the meeting at issue, which was prior to their marriage. The City Commission could not start the meeting the evening after the tournament because Respondent refused to go on stage due to Ms. McGrady’s role as deputy clerk. There was a heated discussion between Shane Crawford, Ms. McGrady, and Respondent. Respondent actually refused to attend the meeting if Ms. McGrady was present, and demanded that she be removed from the area. Mr. Palladeno and an official Bimini representative were in the vicinity of the heated discussion. Referring to Ms. McGrady, and in her presence, Mr. Palladeno heard Respondent say, “You need to get that f[***]ing b[itch] out of here.” Mr. Palladeno rushed in to move the Bimini representative away from the situation. Lynn Rosetti, who at that time was the planning and zoning director, had to fill in because Respondent refused to attend the meeting if city employee, Ms. McGrady, was allowed to substitute for the city clerk. Respondent’s actions interfered with Ms. McGrady’s job duties. After the meeting was over, Respondent approached Shane Crawford with Ms. McGrady, David Marsicano and his then- wife Shelley, and Nicole Bredenberg also in the immediate area. Using her tongue, Respondent licked City Manager Shane Crawford up the side of his neck and face. This act was witnessed by Ms. McGrady, Mr. Marsicano, Mr. Bredenberg, and Mr. Verdensky. Respondent then groped City Manager Shane Crawford by grabbing his penis and buttocks. This act was witnessed by Ms. McGrady and Mr. Bredenberg. Respondent then threw a punch at Ms. McGrady after she told Respondent that her actions were inappropriate. Mr. Marsicano’s ex-wife intervened and confronted Respondent. Mr. Verdensky, who testified that he had been licked by Respondent on a different occasion, called for the head of security, Joseph Campagnola. Mr. Campagnola arrived between one to two minutes after the call. By the time he arrived, Respondent was walking away. However, he found Shane Crawford, Ms. McGrady, and Ms. Marsicano. He was told by Mr. Crawford that Respondent licked his face and grabbed him, which was corroborated by Mr. Marsicano and Ms. McGrady. Mr. Marsicano, who testified he had also been licked by Respondent on a different occasion, has a distinct memory of Respondent’s actions at the November 2012 City Commission meeting because of the “disruptions and shenanigans” that happened before, during, and after the meeting. He had to lead his wife away because she was so upset with Respondent. Mr. Marsicano also testified that he witnessed the face-licking of Mr. Crawford by Respondent. He subsequently spoke with Francine Jackson about what happened at that meeting. Ms. Jackson was not present for the November 2012 City Commission meeting. However, that following Monday or Tuesday, she discussed the weekend with Mr. Marsicano and was informed by him that Respondent licked Mr. Crawford’s face. Ms. McGrady was placed in a predicament when Respondent’s animosity towards her became overt and physical. Respondent created a hostile environment and employees were rightfully fearful of retaliation if they reported Respondent’s actions. Robin Vander Velde is a former city commissioner of Madeira Beach and has known Respondent since 2007. Ms. Vander Velde was outraged about an ethics complaint being filed against her very good friend of ten years. Present in her capacity as a city commissioner at the November 2012 meeting, her recollection of the events was foggy, at best. Ron Little is Respondent’s best friend of 20 years and Ms. Vander Velde’s boyfriend. He honestly acknowledged that it is a given that he would want to help Respondent. Mr. Little was unaware of Respondent’s Driving under the Influence (“DUI”) arrest, petit theft arrest, alleged participation in a United States Postal Service (“USPS”) mail hoax, and the reasons why she left her City of Clearwater employment. Elaine Poe is a former city commissioner of Madeira Beach. Ms. Poe was unaware of Respondent’s petit theft arrest, alleged participation in a USPS mail hoax, and why she left her City of Clearwater employment. While Ms. Poe was at the November 2012 meeting, she did not recall the meeting starting late. Jim Madden is a former city manager of Madeira Beach. He was also unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Doreen Moore was unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Linda Hein met Respondent in 2016. She was unaware of Respondent’s petit theft arrest. Originally, Ms. Hein did not remember attending the November 2012 meeting until her memory was refreshed; regardless, she could not provide eyewitness testimony concerning the alleged licking incident. Michael Maximo, is the former Madeira Beach community services director. He testified he had been licked by Respondent on a different occasion, during the soft opening of a Bubba Gump’s Restaurant in John’s Pass Village. He recalled the details of the specific incident and said Respondent was inebriated at the time, and she came over to him and licked his face and neck in the presence of her husband, who quickly escorted her from the building. Mr. Maximo refuted the testimony of Respondent’s witnesses as his knowledge of Respondent’s reputation in the community was as a “fall down drunk,” who should not be representing the community. This was a different picture from the one painted by Respondent’s friends who, while admitting she liked to have a drink or several with them and others, they could not imagine her licking someone in public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order finding that Respondent, Nancy Oakley, violated section 112.313(6), Florida Statutes, and imposing a public censure and reprimand and a civil penalty of $5,000. DONE AND ENTERED this 7th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 7th day of December, 2018. COPIES FURNISHED: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Elizabeth A. Miller, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed) Millie Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
Findings Of Fact The Applicant. Intervenor, Jacksonville District, United States Army Corps of Engineers (Corps), has applied to Respondents, Department of Natural Resources and the Board of Trustees of the Internal Improvement Trust Fund (the State), for consent to maintenance dredge the federal navigation channel between Gordon Pass and Naples, Florida, and deposit beach-quality sand dredged from the channel on and immediately seaward of beaches south of Gordon Pass on Keewaydin Island (the spoil area). In 1960, Congress enacted Public Law 86-645 authorizing the Corps to dredge and maintain a channel from the Gulf of Mexico through Gordon Pass to the City of Naples. The channel was first dredged by the Corps in 1962. Maintenance dredging was performed in 1967,-1970 and 1979/1980. The City of Naples has been and is the local sponsor of the project. The Corps is authorized to place beach-quality dredged sand material on beaches selected by the local sponsor but only if deemed appropriate by the Corps and if no more costly to the Corps than other appropriate alternatives. The spoil area begins about 500 feet south of Gordon Pass and extends approximately 4,000 feet to the south. Except for the spoil area, Keewaydin Island from Gordon Pass to approximately one mile to the south is privately owned and privately patrolled. However, the spoil area was deeded to the State of Florida by quit claim deed in 1979. The spoil area is therefore publicly owned property and legally is available for use by the public. The only restriction on the public ownership of the spoil area is that the State not permit any use of the spoil area "which may be injurious to the business, person or property" of Key Island, Inc., the Florida Corporation which transferred the spoil area to the State, and that Key Island, Inc., reserves "a perpetual easement over and [sic] such property to the waters of the Gulf of Mexico for its successors, assigns, tenants, guests, and licensees." Petitioners' Standing. Petitioners, John R. Donahue and Rhodora J. Donahue, husband and wife (the Donahues), own the land constituting approximately the western half of the Point of land immediately to the north of Gordon Pass, including approximately 500 feet of beachfront (the Point). The Donahues acquired this property for approximately 2.5 million dollars. The Donahues also own a beachfront residence and lot some distance to the north of the Point worth at least $500,000. To the north of Gordon Pass almost as far as Doctors Pass approximately 6 miles to the north, the sand along the beaches is transported in a net southerly direction. At least some of the sand the Corps plans to remove during its maintenance dredging of the channel at Gordon Pass and deposit in the spoil area came from the beaches to the north of Gordon Pass, including the beaches in front of the Donahues' properties. The net southerly drift of this sand has contributed to the erosion of the beaches adjoining the Donahues' property, as well as the properties themselves. Due to ebb tidal shoals west of Gordon Pass, increased in size by channelization and dredging of Gordon Pass, the net littoral transport immediately and approximately one mile to the south of Gordon Pass reverses to a northerly direction. The net northerly littoral transport of this reversal is at a lower rate than the net southerly littoral transport to the north of Gordon Pass. In addition, a rock jetty along the northern end of Keewaydin Island and extending several hundred feet west into-the Gulf, while not sand tight, slows the transport of sand north into Gordon Pass. Finally, sand that does drift north into Gordon Pass settles at the bottom of the channel and is not carried across the channel to the Point and land to the north, including the Donahues' properties. For these reasons, the Donahues are substantially affected by the maintenance dredging of Gordon Pass and placement of beach quality dredge material in the spoil area so as to have standing as parties Petitioners in this case. Littoral Transport System Near Gordon Pass. Littoral transport is a function of the direction and strength of waves, primarily wind-driven in the Gulf of Mexico in the area of Naples and at highest strength during storms, and the angle at which the waves strike the beach. The angle at which waves strike a beach is a function of the direction of the waves (itself a factor of both the direction of the wind driving the waves and the contour of the ocean bottom) and the direction along which the beach is oriented at the Point of impact. The time of day and season of the year with their impact on tides, also affect littoral transport. Because littoral transport is effected by so many factors, littoral transport changes in both direction and quantity from time to time and at various places along a beach. Average net littoral transport is the result of the combined effect of all these factors over a stretch of beach over a period of time. Although conceptually there is such a thing as average net littoral transport, different Points along the beach have different littoral transport qualities at different times. The presence of inlets or passes is one cause of this phenomenon. The type of inlet or pass - whether natural', or having one or more jetties and/or being dredged - also affects littoral transport in and around an inlet or pass. Both the Naples beaches to the north of Gordon Pass and Keewaydin Island to the south of Gordon Pass show the effects of Gordon Pass on littoral transport. The Point property immediately to the north of Gordon Pass generally has been receding over time in recent years. This is because the increasing tidal prism (or quantity of water having to be transferred in and out of Gordon Pass to fill increasing inland waterways) has been blocked to the south by a jetty along the northern end of Keewaydin Island. As a result, the Point has suffered erosion. In addition, as previously mentioned, sand transported south into the Gordon Pass channel cannot return to the beaches on the Point. Neither does sand from Keewaydin Island get transported across the channel to the Point. In addition, the beach at the Point angles to the southeast, more nearly parallel to the predominant direction of waves striking the beaches at that Point. Sand at the Point is therefore transported more quickly and in larger quantities to the south into Gordon Pass than is sand transported to the south at points further north along the Naples beaches. Finally, seawalls located immediately to the north of the Donahues' property on the Point exacerbate erosion on the Point beaches. The beaches immediately to the south of Gordon Pass, on the other hand, have accreted and are stable. Due to the jetty at the northern end of Keewaydin Island, the average net northerly littoral transport at that location - both of naturally occurring sand and sand placed in the spoil area in previous Corps maintenance dredging of Gordon Pass - have accreted to the northern Keewaydin Island beaches to the extent of the capacity of the jetty to contain the sand being transported. Once capacity is reached, the sand is transported around the jetty to the west into the Gordon Pass channel and through the pervious jetty into the Gordon Pass channel at various times depending upon weather and tide conditions. However, to the south, probably somewhat south of the southern end of the spoil area, the average net northerly littoral transport again reverses. Having escaped the reach of the effect of Gordon Pass, the littoral transport system returns to its average net southerly drift. In the area of this reversal. Point (the precise location of which, of course, varies from time to time), the beaches of Keewaydin Island are subject to rather severe erosion. The beaches in that area are eroded both to the north and to the south and are nourished from neither direction to significant degree. Further south on Keewaydin Island, the beaches are more stable. Near the southern tip of Keewaydin Island, at a natural inlet called Hurricane Pass, the beach is accreting and Keewaydin Island is expanding to the south. The Naples beaches to the north of the Point are generally stable. There has been some accretion near the Naples fishing pier at 12th Avenue South. However, there are some places along the Naples beach which are eroding. These areas include the area of the reversal Point south of Doctors Pass to the north, beaches in front of seawalls, and beaches immediately downdrift of the several groins along the Naples beaches. Public Use of The Beaches. The Naples beaches between approximately 7th Avenue North and 20th Avenue South are readily accessible to the public and are moderately to heavily used by the public, especially on weekends and during the four-month winter tourist season. Access to the Naples beaches south of 20th Avenue South is limited, with only three public access Points along that one to two mile stretch of beach. The property contiguous to the Naples beaches is privately owned. Essentially, as one continues south along the Naples beaches towards the Point, the beaches become less accessible to the public, and, as a practical matter, are used more by the owners of the substantial beachfront residences, their friends and guests. Like the property contiguous to the Naples beaches, Keewaydin Island is almost entirely privately owned. The only exception is the spoil area itself. In addition, like the Naples beaches, the beaches seaward of the mean high water line also are in the public domain. However, legal access to the public portions of Keewaydin Island is only by boat from the Gulf side. In addition, Key Island, Inc., through its representatives, has discouraged public use of even the public portions of Keewaydin Island by claiming that they are part of Key Island, Inc.'s property. As a result, the beaches of Keewaydin Island are virtually unused by the public. The only exception to this is the extreme southern spit of Keewaydin Island where the sand has been accreting and expanding the public beach. Access to the southern spit also is limited to boat, but it is accessible from all three sides of the spit, and the spit is used more by the public for recreational purposes than is the rest of Keewaydin Island. Development Along The Beaches. The Naples beaches are almost fully developed. From the Point north to approximately 4th Avenue North, development is primarily single family residences. From 4th Avenue North north to Doctor's Pass, development is mostly in the form of condominiums or other multi-family development. The residences in Olde Naples from approximately 5th Avenue South to the Point are relatively close to the beach, having previously been constructed seaward of the current coastal setback line. Likewise, several seawalls in the area, including in front of the condominium and other multi-family development to the north also are quite close to the beaches. On the other hand, Keewaydin Island is largely undeveloped. Besides the cluster of structures making up the Key Island Club on the northern tip of the island, there is no other development at all on the property owned by Key Island, Inc. In addition, there are only approximately 10 cottages on the part of the island south of the property owned by Key Island, Inc. Much of the island consists of mangroves and estuaries not suitable for development and not likely to be developed. In fact, Keewaydin Island is under consideration for purchase and preservation by the State under the Conservation and Recreation Lands Trust Fund Program. Need For Maintenance Dredging. Due to the littoral drift previously discussed, Gordon Pass and the channel to Naples needs to be dredged for navigation purposes every five to six years. The channel was last dredged in 1979 or 1980. The Corps usually maintenance dredges on a four-to-five year cycle, depending on weather conditions and other factors affecting littoral drift. While weather was relatively mild in the 1970's, weather in the early 1980's has been relatively severe. As a result, the channel now needs maintenance dredging along with the other maintenance dredge projects now taking place in southwest Florida. If the channel is not dredged now, it probably will be overdue for dredging by the time of the next maintenance dredging cycle in approximately 1990. Propriety Of The Spoil Area. At this time, the system of groins north of Gordon Pass are not adequate to contain or significantly slow the flow of sand to the south. The groins are in disrepair, and the terminal groin is approximately 200 feet or more shorter than it needs to be for this purpose. Sand pumped from the dredge north the same distance as sand is planned to be pumped south to the spoil area would make its way back into the Gordon Pass channel within two years. Several studies of the Naples beaches, beginning with a Corps study in 1972 through a "study to end all studies," as former City of Naples Mayor Rolland Anderson put it, by a blue ribbon committee appointed by the City of Naples, all recommended repair of the groin system and the extension of the terminal groin so as to enable the Corps to deposit dredged beach-quality sand material north of Gordon Pass. In 1982, the City of Naples finally took action to apply for State permits and funding of that project, among others, and to fund the City's portion of the cost of the project. However, the City withdrew its application in November 1982 and did not re-commit itself to the project until August 1985. The City now has applications for State funding and permits pending but funding and start of the project cannot be anticipated for another 1 to 2 years. Without an improved groin system and extension of the terminal groin, dredged sand would have to be spread on the Naples beaches to the north starting at least 6,000 feet to the north of Gordon Pass in order to prevent the sand from moving in the Gordon Pass channel within the Corps' normal maintenance dredging cycle. The City was advised as early as 1979 that this option for deposit of beach-quality dredged sand was only available if the city would fund the extra cost of pumping the sand that distance to the north, estimated at the time to be approximately $3-66,000, and would procure all necessary easements and permissions from affected private property owners. The City of Naples has never taken any of the steps necessary to effectuate this option. Given current circumstances, there is no viable alternative to the proposed spoil area. The Corps refuses to fund the extra cost of pumping dredged beach quality sand material an additional 6,000 feet to the north. Neither the City of Naples nor anyone else has agreed to fund the extra cost. Pumping sand an equal distance to the north (i.e., starting at 500' and spreading sand from there 4000' to the north) is inappropriate given the current condition of the groin system on the Point. (Such an option would maximize, not minimize, the need for maintenance dredging.) Given current circumstances, it is not contrary to the public interest to maintenance dredge the Gordon Pass channel to Naples and deposit beach-quality dredged sand in the proposed spoil area. The spoil area is primarily north of the reversal Point to the south of Gordon Pass in the littoral transport system in and around Gordon Pass. For that reason, a substantial portion of the sand deposited in the spoil area can be expected to eventually make its way back into the Gordon Pass channel in the future. The next time the Gordon Pass channel is maintenance dredged, this same sand can be redeposited elsewhere given the right circumstances. From a coastal engineering standpoint, beach quality sand dredged from the Gordon Pass channel should be returned to the place in the littoral transport system from which it came, i.e., some to the north and some to the south. As previously stated, sand cannot be redeposited to the north while minimizing the need for future maintenance dredging without either improving the groin system and extending the terminal groin on the Point or depositing the sand a substantial distance to the north of the Point. Redepositing the sand further to the north would have the additional benefit of maximizing recreational benefit to the largest portion of the public and helping to protect the valuable beachfront private property from storms. But the question whether to take the steps and provide the funding necessary to achieve these benefits is essentially a political question.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondents, Board of Trustees of the Internal Improvement Trust Fund and Department of Natural Resources, grant the application of Intervenor, Jacksonville District, United States Army Corps of Engineers, for consent to maintenance dredge the Gordon Pass to Naples channel and deposit beach-quality dredged sand in the proposed spoil area on Keewaydin Island. RECOMMENDED this 18th day of April, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee,Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1986. APPENDIX Rulings On Corps' Proposed Findings Of Fact. The substance of the following Corps' proposed findings of fact are accepted as substantially factually accurate and are incorporated in the findings of fact in the same or a modified form to the extent necessary: 1-3, 5, 7-10, 13, 14, 17, 19 and 21. The Corps' proposed findings of fact 18 would have been included in the paragraph immediately above except that it is unnecessary. The Corps' finding of fact 4 is rejected as argument. The Corps' proposed finding of fact 6 is rejected as argument and conclusion of law. The Corps' proposed finding of fact 11 is rejected as unnecessary. As to Corps' proposed finding of fact 12, the last sentence is rejected to the extent that it applies to the northern end of Keewaydin Island as being contrary to the greater weight of the evidence and/or the findings of fact. Otherwise, the substance of the proposed finding is accepted as substantially factually accurate, but subordinate and unnecessary. The Corps' proposed finding of fact 15 is rejected as argument, subordinate and unnecessary. The Corps' proposed finding of fact 16 would be included in paragraph 1 above except that the last two sentences are rejected as contrary to the greater weight of the evidence and/or findings of fact. The Corps' proposed finding of fact 20 would have been included in paragraph 1 above except that the third sentence is rejected as contrary to the greater weight of the evidence and/or findings of fact. Ruling On State's Proposed Findings Of Fact. The substance of the following State's proposed findings of fact are accepted as factually accurate and are substantially incorporated in the findings of fact in the same or a modified format to the extent necessary: 1-4, 10, 12, 13, 17, 21, 22. The substance of State's proposed findings of fact 5-9 are accepted as substantially factually accurate but are rejected as unnecessary. The substance of State's proposed findings of fact 14-16 are accepted as substantially factually accurate but are rejected as subordinate. State's proposed findings of fact 11, 18, 23, and 24 are rejected as argument. State's proposed findings of fact 19, 20, and 25 are rejected as contrary to the greater weight of the evidence and/or the findings of fact. State's proposed finding of fact 26 is accepted in part and rejected in part, specifically as to sub-paragraphs (b), (c) and (d). State's proposed finding of fact 27 is rejected in part as argument and in part as contrary to the greater weight of the evidence and/or the findings of fact. Rulings On Petitioners' Proposed Findings Of Fact. The substance of the following Petitioners' proposed findings of fact are accepted as factually accurate and are substantially incorporated in the findings of fact in the same or modified format to the extent necessary: 1, 3-23, 28, 30, 43, 44, 60, 62, 64, 65, 67, 68, 72, 77, 78, 80. Petitioners' proposed finding of fact 2 would be included in paragraph 1 above, except that the evidence was the dredging itself will not cause or exacerbate erosion of Petitioners' property or the public beaches north of Gordon Pass. Petitioners' proposed finding of fact 25 would be included in paragraph 1 above except that the sand will not "soon move on to privately-owned and privately patrolled beaches," depending upon the definition of "soon." The sand will move to the north more slowly than sand north of Gordon Pass will move to the south. Only the sand at the extreme north of the State-owned spoil area will "soon" move on to the 500 foot strip of privately-owned beach between the State-owned property and Gordon Pass. Much of the rest of the sand will gradually move along the rest of the 4,000-foot strip of State-owned property and eventually reach the 500 feet of privately owned-beach. Ultimately, most of this sand will continue around or through the jetty on the northern end of Keewaydin Island and will settle in the Gordon Pass channel. A relatively small portion of the sand will spread to the south of the spoil area, primarily because of a scouring action, will reach the reversal point and will be carried south of the spoil area. Petitioners' proposed finding of fact 26 would be included in paragraph 1 above except that whether dredging sand is the cheapest way to nourish beaches depends upon the distance between the dredging operation and the beaches to be re-nourished. Petitioners' proposed finding of fact 29 would be included in paragraph 1 above with the clarification that "north of Gordon Pass" refers only to the Point. Petitioners' proposed finding of fact 45 would be included in paragraph 1 above except that the length of time in the last sentence are exaggerated and are erroneously assumes that none of the previously dredged sand ever makes it back into the Gordon Pass channel. Petitioners' proposed finding of fact 49 would be included in paragraph 1 above except that "holes large enough to swim through" appears to be an exaggeration or at least an isolated case based on the evidence. Petitioners' proposed finding of fact 61 would be included in paragraph 1 above with the clarification that the Corps' differing positions on placement of sand north of Gordon Pass varied in part depending upon assumptions as to the groin system, in part depending upon assumptions as to the net littoral drift and in part depending upon differences of opinion among members of the Corps. Petitioners' proposed finding of fact 70 would be included in paragraph 1 above with the clarification that the Corps' willingness to place sand on beaches north of Gordon Pass refers to starting sand placement between one-half mile and one mile north of Gordon Pass and spreading it one to two miles north from there. Petitioner's proposed finding of fact 74 would be included in paragraph 1 above with the clarification that DNR has, of course, participated in the Corps' application and in this proceeding. Petitioner's proposed finding of fact 29 would be included in paragraph 1 above except that the Corps is in the maintenance dredging business, not the beach re-nourishment business, and the Corps is legally obligated to place sand in the most economical appropriate spoil area unless sufficient funds are provided to cover the extra cost of more costly alternatives such as beach re-nourishment. The substance of the following Petitioners' proposed findings of fact are accepted as substantially factually accurate but are rejected as subordinate and unnecessary: 31-34, 37-42, 46, 47, 52, 55-57, 63, 66, 69, 71, 73 and 82. Petitioner's proposed finding of fact 35 would be included in paragraph 12 above except to the extent that the second sentence might infer that the wishes of a local sponsor override the Corps' legal obligation to deposit spoil material in the most economical appropriate place. Petitioners' proposed finding of fact 36 would be included in paragraph 12 above except that it is not particularly "noteworthy" in this case that there was no resolution in 1984/86. Petitioners' proposed finding of fact 58 would be included in paragraph 12 above except to the extent that the citations imply that the Corp did not seek the City's input and receive the City's input that the sand should be deposited south of Gordon Pass as it was previously. Petitioners' proposed finding of fact 24 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. As to Petitioners' proposed finding of fact 48, the first clause is accepted but the second clause alleging placement closer than 500 feet is rejected as contrary to the greater weight of the evidence an/or the findings of fact. Petitioners' proposed finding of fact 50 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. Petitioners' proposed finding of fact 51 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. 20. As to Petitioners' proposed finding of fact 53, the fourth, fifth, and sixth sentences are accepted, but the first and third sentences are rejected as contrary to the greater weight of the evidence and/or findings of fact. Two-foot overdredge for advance maintenance cannot be considered more than the minimum amount necessary to accomplish the Corps' purpose. There was evidence of shoaling and general filling of the channel. There was no evidence to suggest that certain parts of the channel, particularly the area of Gordon Pass, should not be deeper and wider than other parts of the channel between Gordon Pass and Naples. As to Petitioners' proposed finding of fact 54, the first sentence is accepted, but the second sentence is rejected as contrary to the greater weight of the evidence and the findings of fact. Petitioners' proposed finding of fact 59 is rejected as contrary to the greater-weight of the evidence and/or findings of fact. It is true that there are no survey markers. There is the potential for confusion as to the precise location of the State- owned property. Regarding movement of the sand onto private land up against the jetty, the findings of fact show that natural forces will eventually move the sand onto the private property and around and through the jetty back into Gordon Pass. The Corps is not responsible for, and the State should not consider, the possibility of theft of sand. Regarding Petitioners' proposed finding of fact 75, the second sentence is rejected as contrary to the greater weight of the evidence and/or findings of fact, but the rest is accepted. Petitioners' proposed finding of fact 76 is rejected as contrary to the greater weight of the evidence and/or findings of fact. Petitioners' proposed finding of fact 81 is accepted in part and rejected in part. The proposed finding ignores factors such as the exact distance north the sand would be pumped, the cost of pumping sand that distance, and the condition of the groin system north of Gordon Pass. Regarding Petitioners' proposed finding of fact 83, the Corps' proposal does not "minimize future dredging at Gordon Pass" in the strictest sense, but the question in this case is not what else the Corps could do to minimize maintenance dredging besides the maintenance dredging itself, but rather is whether the maintenance dredging itself is to be conducted in a manner so as to minimize maintenance dredging in the future. Petitioner's proposed findings of fact 84 and 85 are rejected as contrary to the greater weight of the evidence and/or findings of fact. COPIES FURNISHED: Dr. Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Douglas Building Tallahassee, Florida 32303 Jacob D. Yarn, Esquire David S. Dee, Esquire Martha Harrell Hall, Esq. P. 0. Box 190 Tallahassee, Florida 32301 Donald E. Hemke, Esquire P. 0. Box 3239 Tampa, Florida 33601 Spiro T. Kypreos, Esq. Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd. Douglas Building, Suite 1003 Tallahassee, Florida 32303 Harrison D. Ford, District Counsel Steven C. Calvarese, Assistant District Counsel Jacksonville District United States Army Corps of Engineers P. 0. Box 4970 Jacksonville, Florida 32232-0019 ================================================================= CORRECTED AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES JOHN F. DONAHUE and RHODORA J. DONAHUE, husband and wife, Petitioners, vs. DOAH Case No.: 85 3829 STATE OF FLORIDA, DEPARTMENT OF NATURAL RESOURCES, and THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Respondents. /
The Issue The issue in this case is whether a proposed activity by Cayo Costa Island Partnership is exempt from permitting.
Findings Of Fact Cayo Costa Island is a bridgeless barrier island situated between Gasparilla Island to the north and Captiva Island to the south. East of Cayo Costa Island is Pine Island, and east of Pine Island is Cape Coral. In the 1960s, Travis Gresham subdivided and commenced development of a portion of Cayo Costa Island. Development included the dredging of canals. Eventually, one or more plat maps were recorded in the public records of Lee County, so that warranty deeds for residential lots referred to such recorded plat maps. There is also a subdivision sales plat map, which may not have been recorded. Not all of the land was subdivided into lots. The sales plat map reserves a considerable amount of land and canals for future development. One of the reserved areas is to the east of the subdivided lots. The location of the proposed dock is in the extreme southwest corner of this unplatted area. The dock would be located at the western end of a relatively wide manmade canal, which measures 2000 feet long and 105 feet wide. The east end of the canal terminates in Pine Island Sound. Petitioner and her late husband purchased from Mr. Gresham lot 16 in block 1 over 30 years ago, and they moved onto the island almost 20 years ago. The lot does not abut the canal, nor the upland adjacent to the subject dock. She has permanently resided on the island continuously since 1976. In 1984, she and her husband conveyed their property by warranty deed to the State of Florida, reserving a life estate. Petitioner's husband and some friends constructed the subject dock at the end of the canal in September 1978. A couple of years later, another nearby resident named Carl Noah substantially enlarged the dock. On March 16, 1993, Mr. Noah conveyed by warranty deed his real property to Paul Faust. At the same time, Mr. Noah gave Mr. Faust a quitclaim deed for "boat docks constructed by [Mr. Noah] to be used with the [residential] structure." After purchasing the property from Mr. Noah, Mr. Faust was contacted by Petitioner, who told him that she had previously owned the dock and that Mr. Noah had shared it with her. Mr. Faust agreed to share the dock with her, for as long as he owned it. There are no recorded easements concerning the use of the dock. On the sales plat map, the west end of the canal is clearly separated from the subdivided area by a road, which is named Harbor Drive. However, Harbor Drive was never constructed and there is no physical evidence of the proposed road. Petitioner's late husband and his friends who helped build the dock mistakenly believed that the west end of the canal terminated at Harbor Drive. Undoubtedly, other persons were similarly confused, including the property assessor, who had never assessed the property that separates the west end of the canal from Harbor Drive. However, in May 1993, Noel Andress, one of the partners of Cayo Costa Island Partnership, obtained a warranty deed from Mr. Gresham for a triangular- shaped piece of land running north just to the existing dock from the intersection of Harbor Drive and an actual road known as La Costa Drive. Mr. Andress quitclaimed the triangular-shaped parcel, which is described by metes and bounds, to Cayo Costa Island Partnership on January 13, 1994. After Mr. Andress acquired the triangular-shaped parcel, he directed his attorney to write Petitioner and Mr. Faust and inform them to remove their personal property from the real property that Mr. Andress had recently acquired. Mr. Faust is contesting this matter in court. Unfortunately, the record does not include the application or applications submitted by Cayo Costa Island Partnership. Mr. Andress testified that he submitted an application in February or March of 1993. The proposed dock, which would replace the dock built by Mr. Sellars and Mr. Noah, would serve a single family. The proposed dock would consist of two sections: a 5' by 92' main section and a 6' by 10' walkway to the upland area. Thus, the total area of the dock would be 520 square feet. The application reportedly provides that Cayo Costa Island Partnership would use turbidity barriers during construction. The location of a 92-foot dock running parallel to the end of a 2000- foot long undeveloped canal presents no impediment to navigation. There is no reason to infer an adverse impact to flood control or, as long as turbidity barriers are used, a violation of water quality standards. By letter dated June 15, 1994, the Department of Environmental Protection acknowledged receipt of the application, as well as additional drawings and documents submitted on April 8, 1994. Based on these materials, the letter states that the proposed project "appears to qualify as an activity which is exempt from the need for a Department wetland resource permit under Florida Administrative Code Rule 17-312.050(1)(h)."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner. ENTERED on November 22, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 22, 1994. APPENDIX Rulings on Petitioner's Proposed Findings A-C: rejected as not findings of fact. A1: rejected as not finding of fact and irrelevant, except for last sentence, which is adopted or adopted in substance. A2-end: rejected as irrelevant, recitation of evidence, subordinate, and unsupported by the appropriate weight of the evidence. Rulings on Cayo Costa's Proposed Findings 1-10: adopted or adopted in substance. 11-12: rejected as subordinate. 13-15: adopted or adopted in substance. 16-23: rejected as subordinate, recitation of testimony, and unnecessary. 24-31: adopted or adopted in substance. 32-33: rejected as irrelevant. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Mathews Trescott Pepper Law Firm 1505 S.E. 40th St. Cape Coral, FL 33904 Mary F. Smallwood Ruden, Barnett P.O. Box 10888 Tallahassee, FL 32302 John Chaves Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue to be determined in this case is whether proposed Florida Administrative Code Rule 40E-10.041(3)(d) of the South Florida Water Management District (“the District”) is an invalid exercise of delegated legislative authority.
Findings Of Fact The Conservancy is a non-profit Florida corporation with its offices in Naples, Florida. It has 6,200 members residing in Southwest Florida. The mission of the Conservancy is to protect the environment and natural resources of Southwest Florida. The Caloosahatchee River is an important focus of the Conservancy’s organizational activities and objectives. A substantial number of the members of the Conservancy use the Caloosahatchee River for drinking water, boating, fishing, wildlife observation, and scientific research. The proposed rules create a prospective reservation of water in the not-yet-operational Caloosahatchee River (C-43) West Basin Reservoir “for fish and wildlife.” The Conservancy’s interests would be substantially affected by the proposed reservation. The District is a regional water management agency created, granted powers, and assigned duties under chapter 373, Florida Statutes (2013). It is headquartered in West Palm Beach, Florida. Proposed rule 40E-10.041(3) states: (3) Caloosahatchee River (C-43) West Basin Storage Reservoir: All surface water contained within and released, via operation, from the Caloosahatchee River (C-43) West Basin Storage Reservoir is reserved from allocation. The water reserved under this paragraph will be available for fish and wildlife upon a formal determination of the Governing Board, pursuant to state and federal law, that the Caloosahatchee River (C-43) West Basin Storage Reservoir is operational. The reservation contained within this subsection and the criteria contained in section 3.11.4 of the Applicant’s Handbook for Water Use Permit Applications within the South Florida Water Management District, incorporated by reference in Rule 40E-2.091, F.A.C., shall be revised in light of changed conditions or new information prior to the approval described in paragraph (3)(b) above. Pursuant to subsection 373.223(4), F.S., presently existing legal uses for the duration of a permit existing on [RULE ADOPTION DATE] are not contrary to the public interest. The Conservancy challenges only paragraph (3)(d), contending that it modifies or contravenes the implementing statute, section 373.223(4).
