Findings Of Fact Richard K. Stander is the owner of Tom's Harbor Key located in the Florida Keys between Duck Key and Grassy Key. Petitioner seeks a permit to construct a private, non-income producing fishing camp for personal acquaintances and guests. The construction includes a wood dock 80 feet long by six feet wide with nine finger piers two feet wide and 15 feet long running from this dock to provide boat slips, and 1350 linear feet of elevated walkway six feet wide running from the dock area across the mangrove area to seven cottages to be constructed on the upland area of Tom's Harbor Key. Piling across the mangrove area will be implanted by hand auger or water-jetted in. If jetted, appropriate turbidity screens will be used. The pilings for the dock will be driven or implanted with a mechanical auger. The Department of Natural Resources reviewed the application and determined that since the proposed project is a private, non-income producing facility, a lease [from DNR] is not presently required. (Exhibit 3) The submerged lands where the dock and boat slips are to be constructed contain patchy turtle grass growth on an open sandy bottom. (Exhibit 4) Construction of the dock and finger pier boat slips as proposed will have no adverse impact on the flora or fauna in the area. The proposed walkway will cover approximately 2400 square feet (0.06A) of wetlands consisting primarily of red and black mangroves. Constructing this walkway over these wetlands will have no adverse effect on the plants other than the pruning which will be needed to keep the walkway clear. The proposed caretaker's house will be built over the wetlands area and it, like the walkway, will be elevated and will have no adverse effect on the plant or animal life. The cottages will be built on the upland area, and they, too, will be built on pilings with the bottom of the structures some ten feet above mean sea level. Petitioner proposes to use dry toilets in these cottages and remove all wastes to the mainland. Accordingly, no waste will be discharged into the waters adjacent to Tom's Harbor Key. Intervenor contends the proposed project is commercial in nature rather than private but presented no evidence to support this contention. Objections to Intervenor's attempts to infer error in the DNR determination made in Exhibit 3 were sustained as not relevant to the issue before this tribunal. Intervenor also inferred that the application was false because Petitioner stated in the application that the pilings would be implanted using a hand auger or water jet, while at the hearing it was learned the dock piling would be driven or implanted with a mechanical auger. This difference was satisfactorily explained by the testimony of the individual who prepared the application. Moreover, the harm to the environment by implanting the dock pilings by driving or mechanical auger would be less than if these pilings were jetted. It is Intervenor's position that because Petitioner erred in stating in the application how the pilings were to be implanted perhaps he erred in other parts of the application, and therefore the application should be returned to Petitioner for resubmission. Tom's Harbor Key is a pristine area accessible only by water. The wetlands adjacent to this site consist of flourishing mangrove forests, and the area is highly productive. Those opposing the permit applied for are residents of Duck Key, a larger key adjacent to Tom's Harbor which is accessible by land, and which, before its development and occupancy, was also a pristine wetland habitat. Although these witnesses opined that the proposed development would have an adverse impact on the marine habitat and on the birds at the site, no factual evidence to support those conclusions was presented.
Findings Of Fact The applicant has proposed, as part of its project, certain mitigation activities designed to offset the adverse environmental impacts that would be caused by the dredging of the proposed turning notch. These proposals consist of (a) the creation of 23 acres of new mangrove forest in the John U. Lloyd State Recreation Area (Park) which lies across the ICW from the proposed notch; (b) the construction of approximately 7300 linear feet of riprap along the eastern edge of the ICW to protect existing and proposed mangrove areas from excessive tidal or wave action; (c) the enhancement of 16 acres of existing mangrove forest in the Park; (d) the deepening of an existing tidal creek in the Park to create a manatee sanctuary; and (e) the grant of a conservation easement to the Department which would prohibit any future development in the remaining acres of mangrove forest adjacent to the proposed notch. The 23 acres on which the applicant proposes to create a new mangrove forest are presently vegetated with exotic plants, primarily Australian pine and Brazilian pepper. The applicant proposes to remove the exotics, scrape the area to an appropriate inter tidal elevation, and handplant approximately 165,000 red mangrove seedlings on three foot centers. The new mangroves will be monitored and maintained for seven years, with at least an 80 percent survival rate. 1/ To evaluate its plan for creating new mangrove areas, the applicant planted 3,800 red mangroves in a pilot project along the east side of the, ICW, adjacent to the Park. Following the passage of two years, those mangroves have evidenced a survival rate of approximately 80 percent, and white and black mangrove recruits have established themselves on the site. The applicant has provided reasonable assurances that its' mangrove project will survive, and that its character will be similar to the well-flushed fringe mangrove forest that will be displaced by the notch. The new mangroves should develop a canopy in four to six years, at which time the production of leaf litter will be maximized. When the canopy develops, the per acre productivity of the new mangrove forest should be similar to the present productivity of the mangroves in the notch. In addition to creating 23 acres of new mangroves to replace the 18 acres lost by construction of the notch, the applicant's project will improve the health and productivity of those mangroves presently growing in the Park. This will be accomplished by the removal of the exotics which currently shade A the existing mangroves and by the improvement of the tidal circulation. In conjunction with its mangrove planting project, the applicant will install approximately 7,300 feet of riprap along the eastern shore of the ICW, an area subject to severe erosion. The ripap, which will be constructed to a height of +6 feet MLW (mean low water), will protect the shoreline, the existing mangroves, and the newly planted mangroves from erosion, turbulent water and floating debris. 2/ Fish populations and fishing values will directly benefit from the riprap and new mangroves by providing shelter and a food source. While large fish and materials will not generally pass through the interstitial spaces in the riprap, small fish and other marine organisms will. 3/ These small fish will be protected from predators part of the time, but at low tide they will be forced through the riprap and into the ICW where they will provide a food service for larger fish. The macroinvertebrate population of the area will increase in number and diversity as a result of the mitigation plan. In the long-term, the macroinvertebrate habitat of the mitigation area will be similar to that presently existing in the notch area. Additionally, new macroinvertebrate communities will emerge along the riprap. The mitigation proposal will also create a net benefit to the local and migratory bird population found in the area. The creation of 23 acres of mangroves, together with the enhancement area, infra, will provide additional habitat and improved food source for the birds. 1O. The third feature of the applicant's mitigation proposal is the enhancement of approximately 16 acres of mangroves in the interior of the Park. These mangroves are presently stressed and poorly flushed. The applicant proposes to excavate ditches from the enhancement area to Whiskey Creek, a tidal creek running through the interior of the Park, and scrape, certain upland areas to create inter tidal elevations between Whiskey Creek and the enhancement area. As a result of the ditching and the removal of upland areas, there will be improved tidal penetration and circulation within the enhancement ,area. This will translate to increased leaf litter production, and the export of more detritus to the marine environment. In the fourth part of its mitigation plan, the proposes to construct a manatee refuge in a U-shaped cove in the Park. While manatee should not be adversely impacted by the proposed projet, the proof did establish that boats are the largest cause of manatee injury and mortality. Construction of the proposed refuge outside the active waters of the ICW should, therefore, increase the survival rate of this endangered species. Finally, the applicant has agreed to grant the Department a conservation easement to the 53 acres of mangrove forest that will remain after construction of the turning notch. The dedication of a permanent conservation easement over the remaining mangrove forest will ensure that future construction projects are not undertaken in this area, and that adverse cumulative impacts do not occur. At hearing, the Department announced its intention to impose all of the conditions contained in its September 16, 1986, draft permit, except for condition number, 11, which dealt with the removal of exotics within the conservation easement. The Department also added two new conditions designed to provide additional protection for the manatee. The new conditions would require, all work boats to observe idle speed restrictions in the manatee sanctuary at all times during construction. The Department would also require that the applicant receive approval from the Department of Natural Resources before working in open waters during the manatee season. The applicant agreed to accept and comply with all of the Department's proposed conditions. The proof establishes that the applicant's mitigation plan, built as proposed and subject to the Department's permit conditions, will produce a net benefit for the environment. On balance, this benefit outweighs the negative impact to the environment that would be occasioned by the construction of the turning notch and renders the project not contrary to the public interest. SUPPLEMENTAL RECOMMENDATION Based on the foregoing Supplemental Findings of Fact and the Department's order of remand, dated April 6, 1987, it is RECOMMENDED: That the subject dredge and fill permit be ISSUED, subject to the Department's proposed permit conditions. DONE AND ORDERED this 27th day of May, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 27th day of May, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Port Everglades Authority for a dredge and fill permit be DENIED. DONE AND ORDERED this 20th day of February, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1987.
The Issue The issues presented for consideration by the hearing officer were as follows: Whether the project would adversely the public health, safety, or welfare or the property of others; Whether the project would adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project would adversely affect navigation; Whether the project would adversely affect the fishing or recreational values in the vicinity of the project; Whether the project would be of a temporary or permanent nature; and Whether the project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed activity.
Findings Of Fact On February 21, 1985, the Respondent, John Spang, applied to the Department of Environmental Regulations, Department of natural Resources and the Army Corp. of Engineers for permits necessary to construct two docking facilities, one on each side of the east end of Coronado Bridge, commonly known as the "North Bridge" on the Indian River, north in New Smyrna Beach, Volusia County, Sections 55 and 9, Township 17 South, Range 34 East. The proposed docks include a total of 24 boat slips. The proposed docks are within 25 feet of the right-of-way of the Coronado Bridge on both the north and south sides. The proposed docks consist of four piers. The piers, from south to north, are 101 feet, 102 feet, 122 feet and 122 feet in length respectively. See Respondent's Exhibit #2. The piers south of the bridge are 75 to 80 feet from the east edge of the channel of the Intracoastal Waterway. The piers north of the bridge are 60 to 65 feet from the east edge of the channel of the Intracoastal Waterway. The proposed docking facilities shall service commercially zoned properties `to which they shall be attached and, in particular, the Riverview Hotel and Charlie's Blue Crab Restaurant, at the Riverview. The Petitioners, Grover Ryan and Margaret Ryan, own the commercially zoned property adjacent to the subject property to the south, located at 100 West Columbus Avenue, New Smyrna Beach, Florida. The Ryans operate a commercial business. On March 17, 1986, the Ryans filed a petition for an administrative hearing. Panet E. and Jerrie L. Peterson of 200 Canova Drive, New Smyrna Beach, Florida own the real property located on the river adjacent to the Ryans but not adjoining the proposed docking area or the property of the applicant. On April 15, 1986, the Ryans filed a petition for an administrative hearing. On February 14, 1986, the Department of Environmental Regulation issued Permit Number 64-099806-4, to construct the proposed docking facilities, subject to specific modifications and conditions to those applications. Issuance of the permit was based upon the following: The Army Corp. of Engineers assessed the proposed docking facilities and determined that the project will not impede navigation or otherwise cause danger to the health, safety or welfare of vessels and persons traveling in the Intracoastal Waterway. On April 18, 1986, the Army Corp. of Engineers issued Permit No. 85IPL-20644 for construction of piers pursuant to the applicant's proposal for docking facilities. The harbor and dockmaster for the City of New Smyrna Beach determined that the proposed docking facilities would not impede or endanger navigation of the river and Intracoastal Waterway, if pilots entering and leaving the docking area carefully follow the rules of road. Actual testing of the proposed site by the Department of Environmental Regulation revealed no seagrasses or rooted macrophytes which might be destroyed by the proposed docks. Flushing in the river was found to be excellent and would alleviate any short-term turbidity problems and would further mitigate against any pollutants from the docking areas to the extent that no water quality violations were anticipated. The United States Department of Interior, Fish and Wildlife Service determined that the area of the proposed docking facility would not have an adverse affect on the manatee otherwise endanger them. Although the dock will restrict fishing from the bridge between the shore and channel, it will not significantly affect adversely the recreational uses. Generally, bridge fishing is being restricted in Florida due to the hazards to fishermen from traffic. The fishing from boats will be unaffected. There is no marine production in the area. The boat traffic in the vicinity of the proposed docking facility is considered heavy, and there are no restrictions on boating speed. The bridge is raised frequently, but heavy traffic requires boats to wait on weekends. The bridge fenders and concrete abutments of the bridge block the lateral view of boaters as they approach, pass under and leave the Coronado Bridge, and likewise obscures the boats in the bridge area from boaters in the proposed dock area. The closest dock to the south of the proposed docks is owned by the Ryans. Mr. Ryan has used his dock for forty-seven (47) years and uses it to dock his large commercial shrimp boat. Mr. Ryan operates a wholesale/retail seafood store on the property which he owns adjoining the Spang's property. As originally proposed, the southernmost dock sought by the Spang's would interfere with Ryan docking his boat at Ryan's dock. The next dock to the south of the proposed docks and Mr. Ryan's dock is owned by the Petersons. This a forty (40) foot dock which is used for noncommercial purposes. Because it does not protrude as far into the water as Ryan's dock, there is no hazard created by the proposed docks. A conditioned modification to the application was the reduction in size of the southernmost docking facility by 15 feet and the construction of handrails on the outer edges of each dock to prevent mooring of boats along the outer edges. The reduction of the southernmost dock by 15 feet, together with handrails and prevention of mooring of boats on the outside of the docks provided reasonable assurance that there was no impediment to navigation, to include Ryan docking his boat. However, the design of the exits to the two proposed docking areas promotes direct entry at right angles into the Intracoastal Waterway. This is potentially hazardous. Petitioner Ryan has an easement over the Spang property to permit public access to Ryan's property from the right-of-way of the bridge and highway. Spang's restaurant, which has already been built at the site, actually traverses the easement, not the proposed docking facility. The proposed facility does not interfere with the easement the Ryans hold landward of the mean high waterline from the highway right-of-way south to the Ryan's business.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Permit No. 64-099806-4 with the size limitation and requirements for handrails established by the agency and that the layout of the docks be modified as drawn in Appendix B to discourage exiting the docking areas at right angles to the channel of the Intracoastal Waterway. DONE AND ORDERED this 18th day of July 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0992 The following action was taken with regard to the proposed findings of fact submitted in behalf of John Spang: Adopted as Recommended Order paragraph 9. Adopted as Recommended Order paragraph 2. Rejected. Paragraph 5 of Ryan's proposed findings of fact adopted as more complete and accurate. Adopted as Recommended Order paragraph 6. 5,6. Adopted and combined as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 9. Adopted substantially as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 8. 10,11. Adopted as Recommended Order paragraph 9(a). Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Adopted as Recommended Order paragraph 9 (d). Adopted as Recommended Order paragraph 9 (b). Irrelevant. Effect on the persons named is not a basis for review. The following action was taken with regard to the proposed findings of fact submitted in behalf of the Ryans and Petersons: Adopted as Recommended Order paragraph 1. Rejected because the applicants' finding cited 24 which was adopted thereby binding the applicant to the lower number. Adopted as Recommended Order paragraph 3. Adopted as Recommended Order paragraph 4. Adopted as Recommended Order paragraph 5. Adopted in part and included in Recommended Order paragraph 12. 7,8. Rejected in favor of Recommended Order paragraph 11. 9. Adopted as Recommended Order paragraph 11. 10,12. Adopted as Recommended Order paragraph 13. 11,13. Adopted as Recommended Order paragraph 14. Adopted as Recommended Order paragraph 11. Adopted as Recommended Order paragraph 12. Rejected as a list of actors without any conclusion stated. 18,19. Rejected in favor of Recommended Order paragraph 10 which more accurately summarizes the more credible facts regarding fishing. 20,21,22. Rejected in favor of paragraph 9(d) which more accurately summarizes the more credible facts regarding danger to manatees. Rejected as contrary to the facts. Rejected as contrary to the facts. Adopted in part in Recommended Order paragraph 16. Rejected as contrary to the facts. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. The following action was taken with regard to the Agency's proposed findings of facts. Adopted as Recommended Order paragraph 1. Adopted in part in Recommended Order paragraph 16 and in part in Recommended Order paragraph 10. 1st sentence: Rejected as irrelevant in light of the Agency's subsequent issuance. Remainder: Adopted as Recommended Order paragraph 9(c). Adopted generally as Recommended Order paragraph 16. 5,6. Adopted generally as Recommended Order paragraph 14. Adopted generally as Recommended Order paragraph 15. Adopted as Recommended Order paragraph 9(d). Adopted as Recommended Order paragraph 9(a). Adopted as Recommended Order paragraph 9(b). Adopted as Recommended Order paragraph 17. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 William F. Hathaway, Esquire Post Office Drawer H New Smyrna Beach, Florida 32070-1586 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Hal Spence, Esquire 221 N. Causeway Post Office Box 1266 New Smyrna Beach, Florida 32070-1266
The Issue The issues to be determined in this proceeding are whether Respondent Prospect Marathon Coquina, LLC (PMC), is entitled to an environmental resource permit for the proposed expansion of a docking facility, and whether PMC is entitled to a modified sovereignty submerged land lease for the proposed project.
Findings Of Fact The Parties With the exception of Elizabeth Schuh, all Petitioners live in the Driftwood neighborhood, which is located across Big Bayou from the proposed project. All Petitioners use Big Bayou for various recreational purposes, including swimming and boating. Several Petitioners also use Big Bayou for nature observation. Petitioner Peter Pav owns waterfront property on Big Bayou. Respondents do not dispute Petitioners’ standing. The Department is charged with the responsibility to regulate construction activities in waters of the state. The Department has also been delegated authority from the Trustees of the Internal Improvement Trust Fund (Trustees) to process applications for submerged land leases for structures and activities that will preempt the use of sovereign submerged lands. PMC is a Florida limited liability corporation that owns 2,786 linear feet of upland shoreline contiguous to the state-owned submerged lands of Big Bayou. PMC is the developer of the multi-family residential condominium development on Coquina Key that the proposed project would serve, known as Coquina Key North. The Affected Waterbody Big Bayou is near the southern end of the St. Petersburg peninsula. The mouth of the bayou opens to Tampa Bay. Big Bayou is part of the Pinellas County Aquatic Preserve, which includes most of the coastal waters of Pinellas County. Like all aquatic preserves in Florida, the Pinellas County Aquatic Preserve is also designated as an Outstanding Florida Water.1 Florida Administrative Code Rule 18-20.001 states that the aquatic preserves in Part II of Chapter 258 (which include the Pinellas County Aquatic Preserve) “were established for the purpose of being preserved in an essentially natural or existing condition so that their aesthetic, biological and scientific values may endure for the enjoyment of future generations.” The term “essentially natural condition” is defined as “those functions which support the continued existence or encourage the restoration of the diverse population of indigenous life forms and habitats to the extent they existed prior to the significant development adjacent to and within the preserve.” Fla. Admin. Code R. 18-20.003(24). In the 1960s and 1970s, development activities throughout Tampa Bay caused the loss of about 80 percent of its seagrasses and significant degradation of water quality. The seagrasses and water quality in Big Bayou were also adversely affected by filling and other development activities, including the filling and bulkheading of Coquina Key where the proposed project would be located. In more recent years, the water quality in Big Bayou has improved. Although trash sometimes washes up on the shoreline and one can sometimes see a sheen on the water surface caused by gasoline or oil, the water quality in Big Bayou is generally good, with high dissolved oxygen and low nutrient concentrations. The seagrasses have also recovered to a large extent. A variety of seagrasses grow in Big Bayou, including shoal grass, manatee grass, turtle grass, widgeon grass, and a relatively uncommon species, palm grass. Seagrasses are the foundation for the marine food web. They also serve as a nursery for small fish and invertebrates, stabilize sediment, and improve water quality. Manatees regularly enter and use Big Bayou because it provides good habitat. The manatees in this area are part of the Southwest Florida manatee subpopulation. Based on data collected through 2001, that subpopulation is either stable, or possibly declining. Pinellas County is not one of the 13 Florida counties that were required to develop and implement manatee protection plans. There are two areas of Pinellas County that the Florida Fish and Wildlife Conservation Commission (FWCC) has identified as needing additional manatee protection measures, but Big Bayou is not one of them. The Proposed Project The proposed authorizations would allow PMC to expand an existing multi-family, residential docking facility on the north end of Coquina Key, along an existing seawall and adjacent to the Coquina Key North condominiums that PMC converted from a former apartment complex. The proposed project would add 60 boats slips to the existing 30 boat slips at the project site. The new slips could accommodate boats up to 25 feet in length. PMC would restrict use of the boat slips to Coquina Key North condominium owners. In converting the former apartment complex to condominiums, PMC retained ownership of a strip of land immediately upland of the submerged lands on which the proposed project would be constructed. The ground for Petitioners’ Motion for Summary Order is that the ownership retained by PMS, because it does not include ownership of the upland residences, does not entitle PMS to obtain a submerged land lease for the proposed project. That legal argument is addressed in the Conclusions of Law. Direct Impacts An earlier plan for the proposed project was to place 30 new boat slips on the north side of the existing docks and 30 new slips on the south side. However, to avoid direct impacts to seagrasses, the plan was modified to avoid an area of seagrasses on the south side. The proposed project now would add 38 boat slips on the north side and 22 slips on the south side. The over-water dock structures would be placed waterward of the seagrasses that currently grow along the seawall. The seagrasses adjacent to the proposed project are not likely to be harmed by wave action or turbulence from boating activity around and in the slips because of the distance between the slips and the seagrasses. The proposed authorizations include specific conditions that prohibit numerous activities that could cause adverse water quality impacts at the proposed project site, such as the discharge of trash, human or animal waste, or fuel; fish cleaning stations; boat repair facilities; fueling facilities; hull cleaning, painting or other external boat maintenance; and boat maintenance or repair activities requiring removal of a boat from the water, or removal of major portions of the boat for purposes of routine repair or maintenance on site, except where removal is necessitated by emergency conditions. No liveaboards would be allowed at the proposed project. PMC intends to incorporate these conditions into its agreements with the condominium owners who use the boat slips. Because Big Bayou is an Outstanding Florida Water, PMC is required to provide reasonable assurances that the project will not result in the lowering of existing ambient water quality. Florida Administrative Code Rule 62-4.242(2)(c) defines “existing ambient water quality” as the better water quality of either what existed on the date that the water body was designated an Outstanding Florida Water or what existed in the year prior to the permit application. Because the current water quality is better than it was in 1972 when the Pinellas County Aquatic Preserve was created, the current water quality is the standard to apply in this case. Although some incidental non-compliance with the conditions of the proposed authorizations could occur, such incidental non-compliance would not likely result in significant2 degradation of the existing ambient water quality in Big Bayou. Secondary Impacts – In General Petitioners’ primary concerns with the proposed project are with the secondary impacts that would be caused by increased boating activity in Big Bayou. Petitioners contend that the additional boats using the 60 new boat slips would adversely affect water quality, seagrasses, manatees, and other natural resources. Petitioners also assert that the additional boating activity would cause erosion of the north shoreline of Big Bayou and impair Petitioners’ recreational uses of the bayou. It is reasonable to assume that there would be more boat trips on Big Bayou if the proposed project were built than if it were not built. However, it is impossible to say how many more boat trips would be generated by the proposed project. It cannot be assumed that because there would be 60 more boat slips, there would be 60 more boats on Big Bayou each day, each week, or even each month. Moreover, the number of boats on Big Bayou on any given day fluctuates because it depends not only on the whims of the boat owners who have boat slips in Big Bayou, but also on the whims of the boat owners who anchor their boats in the open waters of Big Bayou, launch their boats from the public boat ramps on Big Bayou, or enter Big Bayou from Tampa Bay or more distant waters. Secondary Impacts - Erosion Petitioners did not present competent evidence to support their claim that the proposed project would cause erosion of the north shoreline of Big Bayou. Secondary Impacts – Water Quality The Department has adopted by reference the Southwest Florida Water Management District’s Basis for Review for Environmental Resource Permits (Basis of Review) to apply to applications for environmental resource permits for projects over which the Department retains permitting authority. For docking facilities, Section 3.2.4.3 of the Basis of Review requires the applicant to provide hydrographic information to demonstrate that the “flushing time” (the time required to reduce the concentration of a pollutant) is sufficiently short to prevent the accumulation of any pollutants to the point of violating water quality standards. PMC’s hydrographic analyses indicate that Big Bayou is well-flushed. The water of the bayou moves a half mile to a mile during a normal tide. The fact that the current water quality in Big Bayou is good indicates that contamination associated with the current level of boating activity in the bayou is not accumulating. Incidental discharges of contaminants from boats using the proposed project would likely be rapidly dispersed and diluted. Petitioners argued that PMC’s hydrographic analyses did not address every part of Big Bayou. The rule requires hydrographic characterization of “the project site and surrounding waters.” As the challengers, Petitioners needed to rebut PMC’s prima facie case regarding the hydrographic characteristics in the bayou with competent evidence showing PMC’s findings were inaccurate, or show that the scope of PMC’s hydrographic analyses did not conform with any reasonable interpretation of the applicable rule. Petitioners presented no such evidence or showing. Some additional, incidental contamination can be expected to occur as a result of the operation of the boats that would use the proposed project. However, PMC provided reasonable assurance that the addition of these contaminants would not significantly degrade the existing ambient water quality of Big Bayou nor cause any other applicable water quality standard to be violated. Secondary Impacts - Seagrasses The maximum water depth at which most seagrasses can grow is between five and six feet because of their need for light. When boaters attempt to cross shallow areas where seagrasses are located, they sometimes damage the grasses with the boat propellers, leaving areas of torn grass and “prop scars,” furrows in the bottom. Even when boat propellers do not touch the bottom, but come close, they can disturb the loose sediments and cause turbidity. It can be especially harmful when boats run aground, because the boater will sometimes grind away at the seagrasses in an attempt to move the boat to deeper water, causing holes 10 or 12 feet in diameter. Different seagrasses recover from such damage at different rates. In some cases, it can take years for a prop scar to become re-vegetated. A 1995 study of prop scars by the Florida Marine Research Institute found that the Tampa Bay area is one of four areas of Florida with the greatest acreage of moderate and severe scarring. There are prop scars visible in the bottom of Big Bayou and Petitioners testified about seeing boats run aground in Big Bayou. The main navigation channel on the north side of Big Bayou ranges in depth from slightly less than 8 feet to over 17 feet. There are channel markers to help boaters find and stay in this channel, but some of the original markers are missing. In addition to the main navigation channel, there is an area along the north side of Coquina Key that is used by the residents living along that shoreline to get to and from Tampa Bay. This second route, which is not marked, is much shallower than the main channel and its use by boaters at low tide is a threat to seagrasses in the area.3 If more boaters in Big Bayou stayed in the main navigational channel, there would be a decreased threat to the seagrasses. However, the evidence shows that boaters often travel out of the main channel, either by inadvertence or to take a shortcut, and cross shallow areas where the seagrasses are located. It was the opinion of David Crewz, a plant ecologist who specializes in seagrasses, that increased boating activity in Big Bayou could decrease the habitat quality of the bayou. He said that one can expect more prop scarring and more turbidity caused by stirring up the bottom sediments. He was most concerned about boats larger than 16 feet in length that do not stay in the marked navigation channel. The 1995 Florida Marine Research Institute study of prop scarring, which Mr. Crewz co-authored, recommended a four- point approach to reduce prop scarring: (1) boater education, (2) channel marking, (3) enforcement, and (4) speed zones. The conditions contained in the proposed authorizations would implement two of the four points recommended by the study. PMC would install informational signs about seagrasses at the proposed project and at Grandview Park so that boaters using the proposed project and boaters using the boat ramp at the park would be less likely to operate their boats in a manner harmful to seagrasses. PMC would replace all missing markers along the main navigation channel. The current distance between some of the channel markers may be causing some boaters to stray from the channel. PMC would mark the location of seagrasses adjacent to the navigation channel. The operation phase of the environmental resource permit would not become effective until the channel markers and seagrass markers have been installed. The proposed educational displays, channel markers, and seagrass markers would probably reduce boat traffic across seagrass areas, but they would not eliminate it. However, because the displays and markers would be viewed by boaters using Big Bayou other than just the 60 boaters who would use the slips at the proposed project, the “net” effect of the proposed project would likely be no significant increase in prop scars or related adverse impacts to seagrasses in Big Bayou due to the proposed project. Therefore, PMC provided reasonable assurance that the proposed project would not result in significant adverse impacts to seagrasses. To go further, however, and contend as PMC does that, even with the addition of 60 boats, the effect of the proposed project would be to significantly reduce the current incidents of prop scarring, boat grounding, and other adverse impacts to seagrasses, is mere speculation without a statistical analysis of boater behavior or other evidence that was not presented in this case. PMC would also limit the use of its boat slips to vessels with a draft that would provide at least a twelve-inch clearance between the vessel’s draft in a motor-down position and the top of submerged resource at mean low tide. This condition appears to been intended to track similar wording used in Florida Administrative Code Rule 18-20.004(5)(b)8., but because the condition leaves unstated the depth of the submerged resources and the water level of Big Bayou at mean low tide, a prospective renter of a boat slip would not know whether his or her boat would comply with the condition. The rule cannot be more specific because it applies to all waterbodies, but the specific condition in the proposed authorizations can and should be more specific to provide for adequate notice and enforcement. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to seagrasses. Secondary Impacts – Manatees In Florida, between 25 and 30 percent of the annual manatee deaths are caused by collisions with boats. From 2002 to 2006, in Pinellas County waters, 41 percent of the manatee deaths of a known cause were watercraft-related. That percentage exceeds the state average and corresponds to an average of 3.2 deaths per year caused by boats. However the study area from which these statistics were compiled does not include Big Bayou. Dr. John Reynolds, a marine mammal expert, believes that boat speed is the primary factor in manatee deaths from boat collisions. At higher speeds, boaters and manatees have less time to avoid a collision and the severity of the injury to a manatee is generally greater when the manatee is struck by a boat moving at higher speeds. There are no boat speed zones currently established in Big Bayou. Thirty-three years of data collected by the Florida Fish and Wildlife Conservation Commission (FWCC) indicate that there are no known boat-related manatee deaths within two and a half miles of the project site. There have been two dead manatees discovered in Big Bayou, but their deaths were not attributed to boat collisions. Increasing the number of boats in an area used by manatees increases the potential for boat/manatee collisions. To minimize the potential for boat/manatee collisions, PMC would implement the standard manatee protection measures that apply during the construction of the proposed docks. PMC would also implement and maintain a manatee education program approved by the FWCC, including informational signs regarding manatees at the proposed project. Although reducing speeds by establishing, posting, and enforcing idle speed or slow speed zones in the bayou would probably be the most effective measure for the protection of manatees, PMC cannot be required by the proposed authorizations to control boat speeds because boat speed zones must be established by Pinellas County and the Florida Marine Patrol. The proposed authorizations incorporate the conditions recommended by the FWCC for the protection of manatees. Tom Logan, the former FWCC endangered species coordinator and now a consultant who focuses on endangered species and their habitat, believes that the special conditions included in the proposed authorizations provide adequate protection for manatees. The U.S. Fish and Wildlife Service also concluded that the proposed project is not likely to adversely affect manatees. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to manatees. Secondary Impacts – Recreation Petitioners claim that their recreational uses of Big Bayou for fishing, swimming, canoeing, kayaking, and windsurfing would be diminished by the proposed project. However, Big Bayou is large enough to accommodate the additional boat trips associated with the proposed project and Petitioners’ recreational uses. A public water body like Big Bayou must be shared by persons living along or near its shores with all other citizens of Florida. Although some Petitioners would prefer that the bayou had the feel of a more remote or wild place, the Pinellas County Aquatic Preserve is recognized to have a “highly developed, urban nature.” Fla. Admin. Code R. 18-20.019. It already has the attributes of an urban preserve. PMC provided reasonable assurance that the proposed project would not prevent or significantly impair the existing recreational uses of Big Bayou. Cumulative Impacts Florida Administrative Code Rule 18-20.006 and Section 3.2.8 of the Basis of Review require that cumulative impacts be evaluated in determining whether to issue, respectively, a submerged lands lease or an environmental resource permit. PMC and the Department state in their Proposed Recommended Orders that the consideration of cumulative impacts is limited to projects that are existing or under construction, but Florida Administrative Code Rule 18.006(1) also requires, for a sovereignty submerged lands lease, consideration of “the number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve.” Because the principal source of potential adverse impacts associated with the proposed project is boating activity, the existing docking facility at Coquina Key North, the other docks in Big Bayou, and the boat ramp at Grandview Park are existing structures generating boating activity that must be taken into account in the cumulative impacts analysis. Although the proposed project, with the conditions on its construction and operation, would, alone, have no significant adverse impact on water quality, seagrasses, manatees, or recreational uses in Big Bayou, the cumulative impacts to Big Bayou from all similar activities in the preserve have created significant (material) adverse impacts to Big Bayou in the form of trash, water contamination, damage to seagrasses, and prop scars. Public Interest Criteria Section 258.42(1)(a), Florida Statutes, requires that a lease of sovereignty submerged lands within an aquatic preserve by the Trustees must be “in the public interest.” Florida Administrative Code Rule 18-21.003(46) defines “public interest” in this context as “demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action.” Florida Administrative Code 18-20.004(2) sets forth the public interest criteria to be considered and balanced by the Trustees in determining whether to issue a submerged land lease or other authorization to use sovereignty submerged lands. The Rule identifies public boat ramps and “marking navigation channels to avoid disruption of shallow water habitats” as examples of public benefits. These benefits, however, must “clearly exceed” the “costs,” such as degraded water quality, degraded natural habitat and function, harm to endangered or threatened species and habitat, and adverse cumulative impacts. For issuance of the environmental resource permit, a determination is required that the proposed project is “clearly in the public interest,” because Big Bayou is part of an Outstanding Florida Water. Fla. Admin Code R. 62-4.242(2). This determination requires the consideration and balancing of a number of criteria set forth in Section 3.2.3 of the Basis of Review: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity.4 As explained in the Conclusions of Law, the “clearly in the public interest” test does not require the applicant to demonstrate that the intended activity would have a net public benefit. The counter-intuitive result is that, to meet the “in the public interest” test for the sovereignty submerged land lease, PMC must demonstrate a net public benefit, but to meet the “clearly in the public interest test” for the environmental resource permit, PMC does not have to show a net public benefit. The measures that PMC has agreed to undertake to meet the public interest criteria for the proposed authorizations are as follows: Contribute $300,000 to the construction of a second boat ramp at the current Sutherland Bayou Boat Ramp project in Palm Harbor; Install and maintain navigational aides marking the main channel in the bayou; Install markers indicating the location of seagrass beds; Install and maintain an informational display at the public boat ramp in Grandview Park, relating to the protection of seagrasses and natural resources within the bayou; and Install and maintain an aerial map at the Grandview Park boat ramp depicting the location of the navigation channel and the seagrass beds in the bayou. The $300,000 contribution for the boat ramp was based on a similar contribution ($5,000 per slip) that was made previously by the developer of another docking facility in Pinellas County. The Department had originally suggested that PMC contribute to a spoil island restoration project to satisfy the public interest criterion. However, due to the Trustees’ and/or Department’s concern about the reduction in the number of boat slips available to the general public,5 the Department proposed that PMC contribute $300,000 to Pinellas County’s Sutherland Bayou Boat Ramp project in Palm Harbor. The definition of “mitigation” in Florida Administrative Code Rule 18-20.003(35) states that, “Cash payments shall not be considered mitigation unless payments are specified for use in a previously identified, Department endorsed, environmental or restoration project.” No evidence was presented to show that the Sutherland Bayou Boat Ramp project is an “environmental or restoration project,” and it does not appear to qualify as such. Implicit in the boat ramp contribution proposal is the view that the public interest in providing more recreational boaters with access to Pinellas County waters outweighs the negative impacts to marine resources that are associated with increased boating activity. No evidence was presented, however, to explain or support this view. The strange result here is that PMC would be mitigating for the adverse impacts associated with increasing the boating activity in Big Bayou by helping to increased boating activity in other county waters where seagrass losses have been greater, prop scarring is a bigger problem, and more manatees are being killed by boat collisions.6 Dr. Reynolds stated that the Sutherland Bayou Boat Ramp project in Palm Harbor could be a benefit to Big Bayou if the boat ramp project took boat traffic away from the bayou, but he did not know whether it would. A reasonable inference can be made that, being so far away, the Sutherland Bayou Boat Ramp project is unlikely to add to or subtract from boat traffic in Big Bayou. As found above, the adverse environmental impacts of the proposed project, taking into account the proposed conditions, would be insignificant. However, because the record evidence shows that the Sutherland Bayou Boat Ramp project would put boats into county waters (and aquatic preserve waters) where there has been greater seagrass losses, more prop scarring, and more manatees killed by boat collisions than in Big Bayou, PMC’s $300,000 contribution to the boat ramp project actually increases the secondary impacts and cumulative impacts of PMC’s proposed project and causes it to fail to meet the public interest criteria. Without the $300,000 contribution to the Sutherland Boat Ramp project, PMC would meet the “clearly in the public interest” test for the environmental resource permit because the other mitigation offered by PMC would offset the secondary and cumulative impacts of the proposed project. However, a different result would occur in the case of the sovereignty submerged land lease. Eliminating the $300,000 contribution to the Sutherland Boat Ramp project would result in a situation where the public benefits of the proposed project do not “clearly exceed” the costs of the project and, therefore, PMC would not meet the “in the public interest” test. Although the record in this case is insufficient to demonstrate that PMC’s contribution to the boat ramp project would cause the benefits of the project to clearly exceed its costs, the record evidence is sufficient to support issuance of the lease modification if PMC were able to get the appropriate government authorities to establish a boat speed zone in Big Bayou, or if PMC contributed to the enforcement of boat speed zones in the aquatic preserve. As restated in the Conclusions of Law, whether the proposed mitigation is sufficient to offset the adverse impacts of the proposed project is a determination that rests exclusively with the Trustees and the Department, based on the record evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order denying Environmental Resource Permit No. 52-0258984-001 and the modification of Sovereignty Submerged Land Lease No. 520224543. In the event the Trustees determine to issue the submerged land lease, it is recommended that the lease be modified to add a condition that the boat slips shall only be subleased or sold to residents of Coquina Key North condominiums. DONE AND ENTERED this 21st day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2008.
Findings Of Fact On February 9, 1984, Respondent Fernandina Marine Terminals, Inc., by its agent Harbor Engineering Company, filed a joint application with the Department of the Army/Florida Department of Environmental Regulation for the rehabilitation of its existing marine facility located on the Amelia River at Fernandina Beach, Florida. The application was subsequently amended several times and eventually included the construction of a 1,000 foot dock to be constructed on the applicant's property parallel to the shoreline. (Testimony of Ray, FMT Exhibits 1-3, DER Exhibit 2) An environmental supervisor of the Department of Environmental Regulation inspected the site on March 17 and April 17, 1984, and prepared a permit application appraisal on May 21, 1984, in which he determined that the Department had permitting jurisdiction under Chapter 253, Florida Statutes, due to the fact that the Amelia River constitutes navigable waters of the state. He found that the proposed dock would extend some 42 feet farther into the river than a previously existing dock which presently consists mostly of old pilings. He further determined that from a navigational standpoint, the proposed dock should present no problem. This view was concurred in by his supervisor Dr. Marvin Collins, III, who recommended issuance of the permit. On September 6, 1984, the Department issued a Notice of Intent to issue the requested permit. Thereafter, by letter of September 14, 1984, Petitioners requested a hearing to contest the issuance of the permit. On July 9, 1984, the Department of the Army/Corps of Engineers had issued a permit to the applicant to perform the requested work. (Testimony of Deuerling, Collins, DER Exhibits 1, 3, FMT Exhibit 4) Petitioner A. B. Cook, Jr., Seafood Company is located immediately to the south of the proposed site. Shrimp boats unload at the north end of Petitioner's dock. The boats average from 60 to 70 feet in length. Petitioner is concerned that the cement pilings of the applicant's proposed pier will interfere with and prohibit the dockage of the shrimp boat due to the fact that a strong current is generated at the site where the Bells River joins the Amelia River. Petitioner therefore believes that the proposed placement of the applicant's dock would constitute a navigational hazard and that therefore it should be constructed further to the north or closer to the shoreline. (Testimony of Mrs. Cook, Petitioner's Exhibit 1) Applicant's design engineer took cognizance of the need for shrimp boats to unload at the Cook dock. At the time the project was designed he conducted surveys of the uplands to ensure that adequate land was available for the proposed facility. In his expert engineering opinion, which is accepted, the proposed site is ideal for a marine terminal since no maintenance dredging will be required and because the river curves at the site, thus making it the widest place of the river in the vicinity. The planned length of the dock is sufficient to enable the docking of two vessels at the same time. If the proposed dock were to be placed further north, it would he unable to berth two vessels. If it were placed closer to shore, it would be necessary to utilize the adjoining marsh area and-would require constant dredging. Although the dock will extend some 42 feet into the Amelia River on the southwest end, it is almost in line with the applicant's property because of the bend in the river. The dock will be located approximately 115 feet from the Cook dock. The existing dilapidated dock is only approximately 50 feet from the Cook dock, although it is more in line or more parallel to the Cook dock. (Testimony of Ray, Cavanaugh, E. Cook, DER Exhibits 1 (photos), 2, FMT Exhibits 1-3) Expert testimony from riverboat captains presented by both the applicants and petitioners is in conflict as to the extent of difficulty that will be encountered in docking shrimp boats at the Cook pier after the applicant's dock is built, and as to whether it will constitute a navigational hazard. The proposed dock will be put on pilings to avoid eddies which would be caused by a bulkhead, and will prevent change in existing currents. It is acknowledged even by the applicant's experts that a problem would exist with a falling tide and a west wind, and also in conditions of fog. However, the president of Johnson Petroleum Company which operates what is known as the "Gulf" dock located 100 feet south of the Cook dock, is familiar with the tide in the area and testified that the tide is used to spring vessels in and out of the docking area. In light of all the evidence presented, it is found that although the alignment of applicant's proposed pier will to some degree make it more difficult for boats to dock at the Cook pier, it nevertheless constitutes an appropriate use of the applicant's property and sufficient evidence has been presented to show that it will not constitute a navigational hazard or a serious impediment to navigation. (Testimony of Ray, Thompson, Ferguson, Mrs. Cook, E. Cook, Little, Johnson, Cavanaugh)
The Issue The issues to be determined are whether Respondent, Merritt Island Cooperative Housing Association (the Association), has discriminated against Petitioner, Juliet Jenkins (Petitioner or Ms. Jenkins), with respect to services in connection with her dwelling based upon her disability, in violation of section 760.23, Florida Statutes, and, if so, what remedy should be afforded to her.
Findings Of Fact Juliet Jenkins is a member of the Association and has been since 1988. Her unit on Mutiny Lane, within the Association, is her primary residence. There is no dispute that Petitioner suffers from a disability and is in a protected class. She has a progressive, degenerative neuromuscular disorder that causes her muscles to atrophy, and results in muscle weakness and loss of muscle mass in both upper and lower extremities. The condition also causes increased chronic pain, tingling, gait disturbance with repeated falls, generalized muscle weakness, and fatigue. The limitations caused by her condition significantly affect her activities of daily living, including, but not limited to, walking, standing, lifting, grasping, and climbing stairs. She has gone from using a cane, to crutches, and now to a walker. It is anticipated that she will soon need a motorized scooter or wheelchair to ambulate, and the more she exerts herself, the more she suffers. Petitioner no longer has the strength to perform what most people would consider basic functions, such as opening a door without assistance, walking a short distance, or carrying a laundry basket filled with clothes. In March of 2017, Petitioner contacted the Association and requested permission to make some alterations to her unit because of her disability, and asked for some other accommodations on the property in general. She supplied a note from her physician that outlined the limitations caused by her condition and recommended the following accommodations: 1) bathroom renovations to meet accessible design standards; 2) installation of a frontload ventless washer/dryer unit (W/D unit); 3) remodel of the kitchen to meet accessible design standards; and 4) fabrication of a curb cut at the sidewalk near the south entrance of building B4, which is the building housing her unit. On October 10, 2017, the Board of Directors for the Association wrote to Petitioner and advised that it would allow her to modify, at her expense, her bathroom and kitchen, and would allow her, also at her expense, to fabricate a curb cut at the sidewalk at the first floor south entrance of building B4. However, it would not allow the installation of the W/D unit, because it believed the W/D unit would cause plumbing, electrical, and sewage failures in her building. As an alternative, the Association offered to provide a front load washer in the current laundry room for her use. Over time, Petitioner added some additional requests, including a ramp at the front entrance of building B4; automatic door openers for access in and out of the building; and a parking space with van access. The Washer/Dryer Unit The Association buildings were built in or about 1964. The original plumbing for the buildings used cast iron piping and it has failed in some areas. The internal plumbing lines in Petitioner’s building have been replaced with PVC piping, but the line that runs from the building to the street is still cast iron. The Association’s community association manager, Janet Mickelson, testified that the Association denied the request for the W/D unit because of concerns related to the plumbing of the building and whether the building could withstand the additional electrical load resulting from the installation and use of the W/D unit. The Association also did not want to set a precedent for other members to request washers or dryers in their individual units. The Association did not present the testimony of anyone with expertise in plumbing or electrical work to substantiate its claim.1 The laundry room is not in Petitioner’s building. One of the letters from the Association’s counsel described it as being approximately 100 feet from Petitioner’s unit, while Ms. Mickelson testified it was only 30 feet away. Given that the laundry room is not in the same building as Petitioner’s unit, it seems unrealistic to believe it is a mere 30 feet away. The more persuasive evidence indicates that the laundry room is in the building adjacent to Petitioner’s, and that her unit is at the end of her building closest to where the laundry room is located. However, accessing a laundry room in another building presents several hurdles for Petitioner. She would have to travel the distance from her unit, whether 30 feet or 100 feet, with her laundry, which is difficult for her to lift, while using a walker. She would have to open the door at her building while negotiating both the laundry and the walker (or possibly a motorized scooter or wheelchair in the near future), and then open the outside door to the adjacent building (while still negotiating the walker and the laundry) to gain access to the laundry room. It is possible that she will have to open yet a third door to gain access to the laundry room itself. If the front load washing machine is not already in use, she must then load the washing machine, and when the washing cycle is complete, lift the wet laundry into a dryer. At the time of hearing, it was not clear whether a front-loading dryer had been installed in the laundry room. Petitioner had not been in the laundry room for several months and had been unable to find someone to help her with her laundry. The last time someone assisted her was in July 2020. If a front-loading dryer has not been installed, she would most likely be 1 In the Prehearing Stipulation, the Association listed its potential witness as “Association maintenance personnel.” No name or address was provided, and Petitioner objected (both at hearing and in the Prehearing Stipulation) to the failure to provide a name and contact number for this person. The unidentified maintenance person was not allowed to testify, given that he or she was not identified prior to hearing. No other person with plumbing or electrical expertise testified on behalf of Respondent. unable to access a dryer to dry her clothes. If one has been purchased, she would have to hope that the front-loading dryer was not in use, and then lift the wet laundry from the washer to the dryer. Petitioner testified credibly that she is unable to lift the laundry to accomplish this task. In fact, she has only been able to do laundry, with assistance, twice in the last eight months because she cannot do it unassisted. Petitioner presented the testimony of a plumber and an electrician regarding what work would have to be performed to install a W/D unit in her unit, and what effect the installation would have on the electrical and plumbing systems in the building. Justin Gladish, owner of Gladiator Electric, has worked as an electrician for approximately 20 years. He testified that he went to Petitioner’s residence and looked at the existing service, both in her unit and at the main breaker for the building. Her existing service is a 15-amp circuit. He proposed installing a 20-amp dedicated circuit to accommodate the W/D unit, which would add approximately 2 amps. Mr. Gladish testified that it would not cause a strain on the existing system, as it adds a very minor load. He stated that Florida Power and Light allows adding up to 40-50 amps, and the amount added would not put the amp usage above the “80 % rule.”2 Sean Roberts is a plumber who owns SPR Plumbing. He has been a plumber for approximately 30 years, first working as a journeyman, and eventually receiving his state license. He inspected Petitioner’s residence and looked both inside her unit and in the hallway where the plumbing line for the W/D unit would need to be connected to the main line. The “trunk line” for the building runs down the center of the hallway, and his company would cut a hole in the floor of the hallway to tie into the line. There would be a 2 One of the Association’s objections is that if it allows Petitioner to install a W/D unit, they might get similar requests from other members. However, Respondent did not present any evidence regarding how many units there are in each building, or how many of those units are occupied by people with disabilities who might request the same or similar accommodation. section approximately 18 inches by 4 inches in front of Petitioner’s unit where access would have to be limited for approximately a day while the work is completed. Mr. Roberts testified that he did not believe adding the necessary water line would cause a problem with the existing plumbing. He noted that the water line in the hallway had been replaced within the last few years, which Ms. Mickelson confirmed. He testified credibly that adding the line for the W/D unit should not cause any difficulties with the existing water/sewer lines. He would be accessing the water line existing in the kitchen, with the drain line tied into the hallway, where the cast iron had been replaced by PVC piping. When asked about the vibrations caused by a washing machine and the effect they might have, he explained that hammer arresters are required by the building code to prevent vibrations, so there should not be a problem. Respondent did not present any credible, competent, persuasive evidence to rebut either Mr. Gladish or Mr. Roberts’s testimony regarding the effect that installing the W/D unit would have on the building where Petitioner lives. The Association relies on language from Article 12 of the Occupancy Agreement of the Association, which states: The Member shall not, without the written consent of the Corporation, make any structural alterations in the premises or in the water, gas or steam pipes, electrical conduits, plumbing or other fixtures connected therewith, or remove any additions, improvements, or fixtures from the premises. If the Member for any reason shall cease to be an occupant of the premises, he shall surrender to the Corporation possession thereof, including any alterations additions, fixtures and improvements. The Member shall not, without the prior written consent of the Corporation, install or use in his dwelling unit any air conditioning equipment except as provided by the Corporation, washing machine, clothes dryer, electric heater, or power tools. The Member agrees that the Corporation may require prompt removal of any such equipment at any time, and that his failure to remove such equipment upon request shall constitute a default within the meaning of Article 13 of the Agreement. Reliance on Article 12 would make sense if Petitioner had installed the W/D unit without seeking permission, but she did not do so. Article 12 provides no standards by which a request would be evaluated, and no other document has been offered into evidence that provides those standards. Under the facts presented in this case, allowing the installation of a combination ventless W/D unit at Petitioner’s expense is a reasonable accommodation. Curb Cutouts, Ramps, Automatic Door Openers, and Parking The building where Petitioner lives is on Mutiny Lane. Buccaneer Avenue, which is within the Association, has curb cutouts with disabled parking spaces at both its east and west ends of the front of the buildings. Mutiny Lane has a curb cutout with a disabled parking space on its west end only. Petitioner is requesting a curb cutout on the east end of Mutiny Lane. Her designated parking space and her building are on the east end of Mutiny Lane. The Association has granted her permission to have a curb cutout installed at her own expense, but Petitioner believes the Association should pay for its installation. Ms. Mickelson did not know when the other curb cutouts were installed. There are other members of the Association that use wheelchairs and/or walkers, and there are currently six curb cutouts on the property. There is a designated handicap parking spot next to the curb cutout on the west end of Mutiny Lane. The handicap spot is not covered, while resident parking spots are, and the handicap spot is currently reserved for visitors to the Association, as opposed to use by residents. At hearing, as an alternative to making Petitioner’s spot van accessible, Ms. Mickelson offered to let Ms. Jenkins have the handicap spot, but it would not be covered. Ms. Jenkins has not used the current handicap spot, as she always understood it was for guests. She does not want that spot, because there are cracks in the sidewalk in that area, and she believes it is not well-lit. Ms. Jenkins believes her current spot is safer and closer to her unit and would rather have her covered spot converted to a disabled parking spot with van access and a ramp allowance. Permitting Ms. Jenkins to use the uncovered visitor disabled parking space would not allow Ms. Jenkins to enjoy full use of the premises. Ms. Jenkins testified about the difficulties she has moving about. Having an uncovered parking space would mean that she would be exposed to the elements for a lengthier time period whenever it rains or storms. While residents with no disabilities would be able to exit and enter, load or unload their cars under protective covering, Ms. Jenkins would not have that ability. Converting her space to provide van access and a ramp allowance, at her expense, is a reasonable accommodation. Originally, the Association denied Ms. Jenkins’s request for a ramp at the front entrance and installation of the automatic door openers. At hearing, the Association indicated that both requests were approved, at Ms. Jenkins’s expense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent has committed a discriminatory housing practice in violation of section 760.23, with respect to the request to install a W/D unit in her unit and directing that the Association provide the accommodation requested. It is further recommended that FCHR find that Petitioner’s other claims do not rise to the level of discrimination. DONE AND ENTERED this 21st day of December, 2020, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 21st day of December, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) John C. Christensen, Esquire South Milhausen, P.A. Suite 1200 1000 Legion Place Orlando, Florida 32801 Jennifer Elkins, Esquire The Elkins Law Firm, P.L. Suite 5B 1150 Louisiana Avenue Winter Park, Florida 32789 (eServed) Marlene Kirtland Kirian, Esquire South Milhausen, P.A. Gateway Center 1000 Legion Place, Suite 1200 Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue is whether Terry Carlson's application to construct and install a single-family dock in Lee County, Florida, is exempt from the need for an Environmental Resource Permit.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On April 27, 2007, Mr. Carlson filed with the Department an application to modify a single-family dock in a man-altered waterbody in Section 13, Township 46 South, Range 23 East, Lee County (County), Florida. In geographic terms, the property is located at 18570 Deep Passage Lane, which is at the base of a peninsula which extends for around one-half mile south of Siesta Drive, a roadway that appears to be in an unincorporated area of the County between the Cities of Fort Myers and Fort Myers Beach. See Carlson Exhibits 10A and 10B. Although Respondents have not stipulated to the facts necessary to establish Petitioner's standing, that issue is not identified in the parties' Joint Prehearing Stipulation as being in dispute. Because no member of the Association testified at final hearing, the number of members in the Association, the number who operate boats and their size, and the nature and purpose of the organization are not of record.5 It can be inferred from the record at the final hearing, however, that at least one member of the Association, Mr. Kowalski, who lives at 12228 Siesta Drive, operates a boat on the affected waterway. Carlson Exhibits 10A and 10B are maps of the general area and reflect that Siesta Drive begins at an intersection with San Carlos Boulevard (also known as County Road 865) to the east and terminates a few hundred yards to the west. (County Road 865 is a major roadway which connects Fort Myers and Fort Myers Beach.) On the south side of Siesta Drive are three man- made, finger-shaped canals, which extend to the south and provide access for boaters to the Gulf of Mexico. According to one expert, the finger canals are between one-fourth and three- quarters of a mile in length. The canals run in a straight line south for perhaps two-thirds of their length, then bend slightly to the southwest at "elbows" located a few hundred feet north of their outlets. Basins are located at the northern end of each canal. The third canal is the western most of the three canals and is at issue here. Carlson Exhibit 9 (an aerial photograph) reflects that a number of single-family residences, virtually all of whom have docks, are located on both sides of two peninsulas which lie between the three canals. Mr. Carlson owns property on the southern end of the peninsula between the second and third finger canals. It can be inferred from the record that Mr. Kowalski resides in or close to the basin in the third canal. Boaters wishing to depart the third canal must travel south to the end of the canal, make a ninety-degree turn to the east, pass through a channel which lies directly south of Mr. Carlson's proposed dock, head slightly northeast for a short distance, and then make another ninety-degree turn to the south in order to gain access to a channel (directly south of the second finger canal) leading into Pelican Bay and eventually the Gulf of Mexico, approximately one mile away. Boaters entering the third finger canal would travel in a reverse direction. At the point where the dock will be constructed, the channel appears to be around two-hundred fifty feet wide (from the applicant's shoreline to a cluster of mangrove trees to the south), but much of the channel, as well as the three canals themselves, have a soft bottom consisting of sand and silt, which limits the speed and accessibility of vessels. The original application requested authorization to construct a floating dock anchored by concrete pilings at the southern end of the finger canal in front of Mr. Carlson's property. (The proposed dock replaces an older wooden dock which has now been removed.) That application represented that the dock is private and less than 1,000 square feet; it is not located in Outstanding Florida Waters; it will be used for recreational, noncommercial activities associated with the mooring or storage of boats and boat paraphernalia; it is the sole dock constructed pursuant to the requested exemption as measured along the shoreline for a minimum distance of sixty- five feet; no dredging or filling will occur except that which is necessary to install the pilings necessary to secure the dock in place; and based upon the depth of the water shown in accompanying documents and the dock's location, the dock will not substantially impede the flow of water or create a navigational hazard. These representations, if true, qualify the dock for an exemption from permitting by the Department. See § 403.813(2)(b), Fla. Stat.6; Fla. Admin. Code R. 40E- 4.051(3)(b)1.-4. Based upon the information supplied in Mr. Carlson's application, Mark R. Miller, Submerged Lands and Environmental Resource Program Manager in the Department's South District Office (Fort Myers), issued a letter on May 8, 2007, advising Mr. Carlson that his application qualified for an exemption from Department permitting requirements and that the letter was his "authorization to use state owned submerged land (if applicable) for the construction of [his] project." After receiving the Department's first letter, Mr. Carlson elected not to publish notice of the Department's decision or provide notice by certified mail to any third parties.7 Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. The parties no longer dispute that after the Association received actual notice of the construction activities, it filed a request for a hearing within twenty-one days, or on December 26, 2007. Therefore, the request for a hearing is deemed to be timely. Section 403.813(2)(b)3., Florida Statutes, and Florida Administrative Code Rule 40E-4.051(3)(b)3. are identical in wording and provide that in order to qualify for an exemption, a dock "[s]hall not substantially impede the flow of water or create a navigation hazard." In its Petition, the Association contended that this requirement had not been satisfied. It also contended that the documents used in support of the initial application may not be valid. In the parties' Joint Prehearing Stipulation, the Association clarified this objection by contending that the exemption may have expired because site conditions have materially changed from those initially reviewed by the Department. This allegation is presumably based on the fact that during the course of this proceeding, Respondent submitted two revisions to its original construction plans. Sometime after the first letter was issued, new information came to light and on May 16, 2008, Mr. Miller issued a Revised Letter which stated that the Department had "determined that the proposed project as described in the above referenced application . . . does not involve the use of sovereignty submerged lands[,]" and that "no further authorization will be required from the Submerged lands and Environmental Resources Program." See Department Exhibit 2, which is a disclaimer for the relevant waters issued by the Board of Trustees of the Internal Improvement Trust Fund. The effect of the disclaimer was to render Florida Administrative Code Rule Chapter 18-21 inapplicable to this proceeding. By the time the Revised Letter had been issued, the original application had been revised twice, the last occurring sometime prior to the issuance of the Revised Letter. Among other things, the size of the dock has been increased to 997 square feet, and the dock will be placed nineteen feet landward and westward (or twenty-five feet east of Mr. Carlson's western property boundary) of the initial dock design for the purpose of improving navigation and creating less of an inconvenience to other boaters. The dock will now be located twenty-five feet from the seawall and is approximately seventy feet long and eight feet, five inches wide. A gangplank and floating platforms provide a walkway from the seawall to the proposed dock. On the western edge of the dock, running perpendicular to the seawall, will be pilings that will accommodate a boat lift for one of Mr. Carlson's boats. (The record reflects that Mr. Carlson intends to moor a forty-eight-foot Viking with a width of approximately sixteen feet, six inches, on the outside of the dock, parallel to the seawall, while a second boat will be stored in the boat lift.) A floating platform is located seaward of the main dock to allow access to the boat on the boat lift. After reviewing these changes, Mr. Miller reaffirmed his earlier determination and concluded that all criteria had still been met. In conjunction with the initial application, a Specific Purpose Survey of the channel dimensions was prepared by a professional surveyor, Mr. Timothy Mann, which reflects the bottom elevations of the channel in front of Mr. Carlson's property. The bottom elevations were calculated by taking manual and electronic readings using the national geodetic vertical datum (NGVD) of 1929. This method is accepted in the surveying and mapping industry to calculate bottom elevations. The survey was signed and sealed by Mr. Mann. The updated applications relied upon the same survey. In calculating the water depth, Mr. Mann subtracted the mean low tide in the Pelican Bay area from the bottom elevation survey. Mean low tide is an elevation of the average low tide over a nineteen year period. Mr. Mann obtained these average low tide records from the State. Mean low tide for the Pelican Bay area was determined to be approximately -0.5 NGVD. Therefore, if Mr. Mann's survey showed a depth of -7.77 feet, the water depth would be -7.27 feet. The survey reflects that there is at least a sixty-foot wide area beyond the proposed dock with depths at mean low water of between four and five feet. See Carlson Exhibits 7A and 7B. The mean low water survey adds further justification for the Department's determination because it is not required by the Department, and applicants do not normally submit one. It should be noted that although the Department has no rule for how deep a channel needs to be, a three-foot depth is typically used. To satisfy the navigation concern raised by Petitioner, Mr. Carlson engaged the services of two long-time licensed boat captains, both of whom were accepted as experts. Besides reviewing the dock design, on May 13, 2008, Captain Joe Verdino navigated the entire length of the third finger canal using a thirty-foot boat with a five-foot beam and twenty-four inch draft. The boat was equipped with a GPS sonar calibrated at the hull of the craft to verify the depth of the water shown in the Specific Purpose Survey. Based upon his measurements, Captain Verdino determined that there is at least another sixty feet beyond the proposed dock for other vessels to safely travel through the channel and that vessels with a draft of four to five feet would be able to safely navigate the area. Therefore, he concluded that a fifty-five-foot boat with a sixteen to eighteen-foot beam could safely navigate on the channel. Even though the measurements were taken when the canal was closer to high tide than low tide, the witness stated that this consideration would not alter his conclusions. He further opined that wind is not a major factor in this area because the channel is "well-guarded" by Fort Myers Beach, which essentially serves as a large barrier island to the southwest. He discounted the possibility of navigational concerns during nighttime hours since boats have lights for night travel. Significantly, he noted that the tightest navigable area in the third canal is at an elbow located several hundred feet north of Mr. Carlson's property, where a dock extends into the canal at the bend. Therefore, if vessels could navigate through a narrower passageway further north on the canal, then vessels would have no difficulty navigating safely in front of Mr. Carlson's proposed dock. After reviewing the plans for the proposed dock, Captain Michael Bailey also navigated the third canal and concluded that the canal can be safely traversed by a fifty-two- foot boat. This is the largest boat presently moored on the third canal. After Mr. Carlson's dock is constructed, he opined that there is at least "fifty plus" feet and probably sixty feet of width for other boats to navigate the channel, even if a forty-eight-foot boat is moored at Mr. Carlson's dock. In reaching these conclusions, Captain Bailey used a PVC pipe and staked out depths in the channel beyond the proposed dock to verify the figures reflected in the Specific Purpose Survey. PVC pipes provide the most accurate measurement of the actual distance from the water's surface to the bottom of the channel. Like Captain Verdino, he noted that the narrowest point on the canal was at the elbow several hundred feet north of the proposed dock where boats must navigate between a private dock on one side and mangrove trees on the other. Captain Bailey discounted the possibility of navigational hazards during nighttime hours since a prudent mariner always travels slowly and would not enter a finger canal at nighttime unless he had lights on the boat. Mr. Mark Miller also deemed the navigation issue to be satisfied. He did so after reviewing the Specific Purpose Survey, the aerial photograph, the location of the dock, the results of a site inspection, and other dock applications for that area that had been filed with his office. Based upon all of this information, Mr. Miller concluded that there is an approximate sixty-foot distance to the south, southeast, and southwest beyond Mr. Carlson's dock before the waters turn shallow (less than four to five feet deep), and that the dock would not pose a navigational hazard. In response to Petitioner's contention that the third set of drawings was not signed and sealed by a professional surveyor, Mr. Miller clarified that drawings for dock applications do not have to be signed and sealed. (The third set of drawings was based on the first set submitted to the Department, and which was signed and sealed by a professional surveyor.) He also responded to an objection that the Department's review did not take into account the size of the boat that Mr. Carlson intended to dock at his facility. As to this concern, Mr. Miller pointed out that the Department's inquiry is restricted to the installation of the dock only, and not the size of the boat that the owner may intend to use. Finally, even though the County requires that a building permit be secured before the dock can be constructed, and has its own standards, that issue is not a statutory or rule concern in the Department's exemption process.8 Petitioner further alleged that site conditions have materially changed since the original application was filed and that the exemption determination should automatically expire. (This allegation parrots boilerplate language used in the Rights of Affected Parties portion of the Department's two letters.) As to this contention, the evidence shows that the applicant revised its dock plans twice after its initial submission. The Association does not contend that it was unaware of these changes or that it did not have sufficient time to respond to them prior to final hearing. The third (and final) revision is attached to Respondents' Joint Exhibit 2 (the Revised Letter) and indicates that the dock will be 997 square feet, which is larger than that originally proposed, but is still "1000 square feet or less of surface area," which is within the size limitation allowed by the rule and statute. It will also be further west and closer to Mr. Carlson's seawall. These revisions do not constitute a substantial change in site conditions, as contemplated by the Department in its exemption process. In order to have materially changed site conditions, Mr. Miller explained that there must be an event such as a hurricane that substantially alters the nature of the channel. Therefore, there is no basis to find that a material change in site conditions has occurred and that the original determination of exemption, as revised, should automatically expire. Petitioner presented the testimony of Captain Marcus Carson, a licensed boat captain, who moved to the Fort Myers area in 2000. He noted that the three canals (known as "the three finger area") have always been a "little hazardous" and because of this he cautioned that only residents familiar with the waters should use them. On May 12, 2008, he accompanied Mr. Kowalski on a "brief trip" in Mr. Kowalski's boat up and down the third canal. Using a dock pole to measure depths, he found the deepest areas of the channel below Mr. Carlson's home to be between 4.6 and 5.0 feet. However, he conceded that a dock pole is not as accurate as a PVC pipe, which Captain Bailey used to take the same type of measurements. Based upon the first set of plans, which he used in formulating his opinions, Captain Carson criticized the dock as being "out of place," "overbearing," and not aesthetically pleasing. He also opined that once the dock is constructed, the channel would be too small for two fifty-foot boats to pass through the channel at the same time. However, these conclusions are based upon the assumption that the original dock plans and pilings would be used. The witness agreed that if the original plans have been modified, as they have, and the dock moved further west and closer to the seawall, he would have to reevaluate his opinions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Mr. Carlson's project is exempt from its permitting requirements. DONE AND ENTERED this 27th day of June, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2008.
Findings Of Fact At all times here relevant Respondent held a Florida license as a pilot for Tampa Bay. Shortly before midnight on 25 February 1982 Respondent boarded the M. T. JUPITER in Cut G, Tampa Bay, to pilot the ship to her destination at Florida Power Corporation's dock on Weedon Island. Two tugs, the BRADENTON and PALMETTO, were available and utilized from Cut G to the entrance to the Florida Power Corporation dock. The BRADENTON was made up on the port bow and the PALMETTO was made up on the starboard bow of the M. T. JUPITER. Around 4:10 a.m. on 26 February 1982 the M. T. JUPITER had made the last turn toward the Florida Power Corporation dock on Weedon Island and was proceeding westward at dead slow speed in the center of the entrance channel. The M. T. JUPITER was scheduled to moor port side to at the south dock at the Florida Power Corporation slip. Line handlers were standing by on the dock and the ship's crew had been called to cast the lines from the ship when so directed. The BRADENTON on the port bow was ordered to let go and stand by on the port quarter. Shortly after arriving at the port quarter the BRADENTON was ordered to stand by on the starboard quarter, but was never directed to put a line on the M. T. JUPITER. The PALMETTO remained fast to the starboard bow with her engines in the ahead position. Without having a line on the M. T. JUPITER, the BRADENTON could do nothing to reduce the speed or forward movement of the JUPITER. At 4:14 a.m. Respondent ordered all engines stopped on the M. T. JUPITER as the ship approached the slip. As the M. T. JUPITER entered the slip several people on the south dock waiting to take the lines from the M. T. JUPITER thought the M. T. JUPITER was moving too fast for a proper mooring. One of these witnesses equipped with a bullhorn yelled to the M. T. JUPITER a couple of times to slow down as he too thought the ship was moving too rapidly. At 4:20 a.m. Respondent ordered the PALMETTO to push M. T. JUPITER's bow to port and ordered all engines back full. As he did so the bow swung to starboard and at 4:21 a.m. Respondent ordered the engines stopped and the PALMETTO to let go and stand clear as the starboard bow was moving toward the north dock. As soon as the PALMETTO was clear, at 4:22 a.m., Respondent again ordered the engines back full. The M. T. JUPITER collided with the dock at 4:23 a.m. and Respondent ordered the engines stopped. The tugs secured lines to the M. T. JUPITER, pulled her away from the north pier which she had struck, and moored the M. T. JUPITER to the south slip. At the time of this incident the tide was high, there was no effective tidal current, and the wind was from the east-northeast at 10-15 knots. The effect of the wind, if any, was that to be expected from a following wind which would slightly increase the drift of the ship in a westerly direction. The south pier where the M. T. JUPITER was ordered to tie up is 1,100 feet long and the distance across the slip between the south and north piers is 250 feet. The north pier is shorter, just under 800 feet long. At the end of this slip Florida Power Corporation has its cooling water intakes at which are located six pumps with a combined rated capacity of 390,000 gallons per minute. During the time involved in this incident four of these pumps were on the line providing cooling water to the plant. These suction pumps are essential to the power plant's operation. Hence they may be expected to be on at all times. This fact is known to all Tampa Bay pilots and is an item included in the examination for licensure as a Tampa Bay pilot. No credible evidence was presented as to the actual current generated in this slip by these suction pumps. However, pilots have brought ships into this slip for many years and have generally experienced slight to no effect on the ship from these pumps. Respondent's testimony, that his first engine command following the 4:14 a.m. stop bell was slow astern, then half astern before the command for full astern was given at 4:20 a.m., is not supported by the bell book, the casualty report Respondent prepared immediately following the casualty (Exhibit 1), or by the statement he gave the U.S. Coast Guard investigator dated 26 February 1982 (Exhibit 11). Respondent did not know the speed the M. T. JUPITER made through the water with the engines ahead dead slow and no evidence was presented regarding this speed. Nor was any evidence presented regarding the speed imparted to the M. T. JUPITER by the tug PALMETTO on the starboard bow after the M. T. JUPITER's engines were stopped. The PALMETTO's captain testified that Respondent ordered him full ahead to push the bow of the M. T. JUPITER toward the south pier and that he responded to that command until told to get his tug out of the way before the M. T. JUPITER collided with the north dock. The lighting on the south pier of the docks provided good illumination in the area, resulting in good visibility for all witnesses.
The Issue The issue presented is whether Respondent George Wentworth is entitled to a noticed general permit and consent to use sovereign submerged lands for a dock and boathouse.
Findings Of Fact On June 26, 1998, Respondent Wentworth submitted to the Department an application for a standard general permit to construct a boardwalk through mangroves on his property on Hutchinson Island in Stuart, Florida. On August 13, 1998, he revised his application by expanding it to include a dock with a U-shaped terminal platform and boat lift. His revised application was a notice of intent to use a noticed general permit rather than a standard general permit. The expanded project is in the Indian River Lagoon, which is classified as an Outstanding Florida Water and is within the Jensen Beach to Jupiter Inlet Aquatic Preserve (Class II waters of the State). His revised application form specifically advised that he was not seeking authorization to use the sovereign submerged lands over which his project would be constructed. Bruce Jerner, a Department employee in its Port St. Lucie office, processed Wentworth's application. He made a site visit, met with Wentworth's consultant, performed a survey of the seagrasses in the area of the project site, and placed a stake for the landward extent of the terminal platform for the dock which would allow Wentworth to avoid the existing seagrasses. While Wentworth's request for approval was being processed by the Department, Jerner had several conversations with Wentworth or his consultant. The project changed several times as to its dimensions, and Wentworth agreed to give the Department several extensions of the 30 days the Department had to object to the project before the noticed general permit would issue by operation of law. The last extension given would expire in October 1998. On September 23, 1998, Jerner was about to leave on vacation. He processed Wentworth's permit application that day, using the revised drawings submitted by Wentworth that same day. That day's drawings indicated a rectangular terminal platform instead of U-shaped and a notation indicating a boathouse and boat lift. In processing the application with the new drawings, Jerner did not consider the more stringent standards that apply in an aquatic preserve and did not consider any requirements of the local government, Martin County. He prepared a document which would grant approval by using various forms and piecing them together. He placed the document in the location for outgoing mail. Jerner did not have another staff person review the file, as required by Department procedures. Jerner did not then have the file reviewed by the administrator of the Department's Port St. Lucie office, as required by Department procedures. Although Jerner had the authority to sign a permit when the Department's administrator was absent from the office, no evidence was offered at the final hearing in this cause as to whether Melissa Meeker, the administrator of the office at the time, was in the office that day or not. The letter received by Wentworth was not signed and recited the wrong address for the project location. It also indicated that it was both a permit and an exemption from permitting. Although Wentworth is a state-certified general contractor, neither he nor his consultant contacted the Department to find out why the permit was unsigned, why the project location was wrong, or why the Department's letter referred to itself as being both a permit and an exemption. Further, they did not question why the attachments to the letter indicated that the project as approved could not be. The September 23, 1998, letter advised Wentworth that he could protect himself from third-party challenges to his noticed general permit and consent to use sovereign submerged lands by publishing notice in a local newspaper and/or by mailing a copy, by certified mail, to any known interested persons. The letter advised him that if he did those things, his permit would be beyond challenge after 21 days. Wentworth did neither. The permit letter mailed by Jerner authorized Wentworth to use sovereign submerged lands even though Wentworth's application specifically advised that Wentworth did not want the State's consent to use its land. The permit letter also authorized Wentworth to construct a 1,894 square foot single- family docking structure with a 236' x 4' access pier through jurisdictional wetlands and open water and a 23' x 50' boathouse located over the terminal access and mooring area. In December 1998 Wentworth faxed to Jerner a revised drawing of his dock and attendant structures. That drawing showed a boat shelter on one side of the access walkway and a traditional terminal platform on the other. A notation reflected that the boat shelter was reduced to 16' x 30'. The drawing was not signed or sealed. It was not accompanied by a request for modification. In an ensuing conversation Jerner told Wentworth that the drawing was probably something he could approve if Wentworth submitted a modification request with a signed, sealed copy of the drawing. Wentworth never did so. Since no modification was ever requested, one was never approved. Wentworth commenced construction, and he was contacted by Petitioners Urban, the adjoining landowners, and by Petitioners Vogel, nearby landowners. They objected to the very large structure he was constructing as was evident by the location and size of the pilings being put in place. They asked him to decrease the size of his boathouse, but he refused. In January 1999 the Vogels and the Urbans filed petitions with the Department seeking to have the Department reverse its approval of Wentworth's noticed general permit and its consent for Wentworth to use sovereign submerged lands. The Department contacted Wentworth and requested that he cease all construction activities until the merits of the petitions could be determined. Wentworth continued with the construction. On December 31, 1998, Martin County issued a stop work order against Wentworth's construction project for two reasons: first, the questions which had been raised by the Urbans and the Vogels regarding the validity of the Department's permit; and, second, the electrical work being performed on the project without a permit from Martin County. Wentworth ignored the County's stop work order and continued his construction. The project has been completed. On May 10, 1999, the Department issued a revised letter correcting the errors in its September 23, 1998, letter. The address of the project was corrected. The reference to Class III waters of the State was changed to Class II. The letter added language to reflect that the dimensions of the project may not be authorized. The references to an exemption from permitting were deleted. As constructed, the structure consists of a 236' x 4' access pier. Toward the end on one side is a 10' x 17' traditional terminal platform. On the other side is a 16' x 30' boathouse roof with a boat lift under it. Basically, the outline of the dock and attendant structures looks like a flagpole that runs east to west with a small flag at the southwest end and a large one at the northwest end. The total area that extends from the end of the access pier (not including the access pier) is approximately 650 square feet, and the total area for the entire structure is approximately 1,594 square feet. The access pier ends where the structure becomes wider than four feet, where the attached roof structure (boathouse or boat shelter) begins. The terminal platform begins at the landward extent of the boat shelter. The terminal platform, which includes both the traditional docking platform and the boathouse roof, far exceeds 160 square feet. The terminal platform (which includes the boathouse roof) is connected to the access pier, is located at the terminus of the facility, is designed to secure and load or unload a vessel, and is a water- dependent activity. However, the boathouse roof is not necessary for Wentworth to gain access to his boat or the water to conduct water-dependent activities. The dock access pier is not elevated a minimum of five feet above mean high water. The dock plank spacing is less than one-half inch. The access pier is located over a bed of seagrasses. The first eighty feet from the landward extent of the mangroves meets the definition of a Resource Protection Area 1, an area with the highest level of resources. From that point outward, there are no seagrasses, but since seagrasses are migratory, there is the potential for seagrasses absent extensive shading. The potential for resources under the remaining access pier, the terminal platform, and the boathouse places that part of the structure in a Resource Protection Area 2. The boathouse roof is elevated at least 17' above mean high water and will cast a shadow over resources in the area. Shading of resources by structures in an aquatic preserve can adversely impact marine grass, fish, birds, and benthic organisms. A noticed general permit is a form of regulatory authorization whereby if all criteria are met, the applicant qualifies for a regulatory permit without the agency having to issue a permit. The noticed general permit is not an authorization to use state lands nor is it linked to the state lands authorization. Proprietary authorization is a separate authorization to use state-owned submerged lands. Nonetheless, the two prongs of authorization are covered by one document/letter in an effort to streamline the permitting process. The September 23, 1998, and May 10, 1999, letters to Wentworth each had attachments which addressed, among other things, the specific criteria that must be met to qualify for state lands authorization. The state lands (proprietary) authorization has more stringent size and design requirements than the noticed general permit (regulatory) authorization. Although Wentworth's dock structure meets the criteria for a noticed general permit, it does not meet the criteria for consent to use sovereign submerged lands. The completed dock structure is quite visible from the homes of the Urbans and the Vogels. They had purchased their homes years before Wentworth constructed his dock and boathouse and had relied on the pristine character of the water and their unobstructed view in making their purchases. They relied on the fact that they were purchasing property in an aquatic preserve with special protection afforded by the restrictions on construction in the preserve. The Urbans have a dock and own a boat which they use on the Lagoon. The Vogels do not have a boat, but they use the Lagoon as guests of others who own boats. There are no other boathouses within view of the Vogel or the Urban properties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Wentworth's application for a noticed general permit and for consent to use sovereign submerged lands conditioned on the entire terminal platform not exceeding 160 square feet, the entire terminal platform not exceeding eight feet in width, the deck plank spacing being at least one-half inch wide, and the access pier being elevated to five feet above mean high water. If Wentworth is not willing to meet such conditions, his application for a noticed general permit and consent to use should be denied. DONE AND ENTERED this 25th day of August, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1999 COPIES FURNISHED: Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197 Stuart, Florida 34995 William E. Guy, Jr., Esquire Law Offices of William E. Guy, Jr. Post Office Box 3386 Stuart, Florida 34995 Ricardo Muratti, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue for consideration at this hearing is whether Respondent's certification as a communications systems specialty contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board, was the county agency responsible for licensing contractors in the construction trades in Pinellas County and for the regulation of the profession of contracting in that county. Respondent, Michael G. Linton held license No. C-5513 as a certified communications systems specialty contractor in Pinellas County. On or about June 14, 1995, Kim and Vincent Carter, tenants at a residence located at 118 7th Street in Belleair Beach, Florida, contacted Respondent to secure his assistance in moving the satellite reception dish which he had initially installed for them to their new residence. On that date, Respondent issued an invoice to the Carters on which he indicated he was to reinstall their satellite system for $300.00. The statement was signed by Respondent and also bears the apparent signature of V.J. Carter. Mr. Linton claims it was Mrs. Carter who signed the statement authorizing the work, however, but she denies it and Mr. Carter claims it was he who signed it. Mr. Carter disconnected the system inside the residence and helped to take down the outside dish. Respondent moved the dish from the Carter's old residence to their new residence where it was to be reinstalled. Respondent did not pull a permit from the City of Belleair Beach to construct the base for the antenna dish. A permit was required. Mr. Linton claims he did not dig the hole for the base into which he poured the cement but that the base hole was dug by Mr. Carter. Mr. Carter denies having done so. Whoever dug the hole, it did not meet code requirements since it was only 20 inches deep and the code requires a base of concrete at least 48 inches deep. The length and breadth of the slab depends on the size of the satellite dish and the length of the pole on which it will be affixed. The Carters deny that they agreed to pull the permit for this work, claiming that since they are not the owners of the property, they cannot do so. This is not so, however, because, under the terms of the Code, (Section 6- 3(a)(1), either the owner of the property or the authorized agent of the owner can pull the permit. If authorized by the owner of the new residence, either the Carters or the contractor may have pulled the permit. Neither did. Respondent claims he was hired by the Carters only to help them move their satellite system. He was to be paid between $300.00 and $350.00, and Mr. Carter was to help. Because Carter and Mr. Moore, the building official, were old friends, Carter was to pull his own permit and that was put on the invoice. The Carters claim this notation was not there when they signed the invoice. Respondent claims he would have charged $150.00 extra to pull the permit. Respondent admits he holds himself out as a communications systems contractor and that he was retained by the Carters to do work related to the move of their satellite system from one residence to another, but only to help Mr. Carter. He admits he knew a permit was required for the construction of the new base and, though he may not have known whether a permit had been pulled before he poured the new base, he did not pull it himself or insure that one had been pulled. He now admits he should not have relied on the Carters' representations that they would take care of it. He also did not insure that the base which was poured conformed to the requirements of the approved engineering for the installation. The city's building official, Mr. Moore, inspected the work site, on two separate occasions. He first found the hole to be too shallow. When he came back to reinspect, the cement had been poured and he could not gauge the depth, finally accepting the certification of the subsequent contractor that the base conformed to specifications. The conforming work was not done by Respondent but by a subsequent contractor hired by the Carters, Satellite Communications and Electronics, Inc. The Carters were billed an additional $250.00 for this follow up work. This included a fee of $150.00 for pulling the required permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order finding Respondent guilty of the offenses alleged, placing his license on probation for six months, and imposing an administrative fine of $250.00. DONE and ENTERED this 12th day of April, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5933 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. None submitted. Respondent's Proposed Findings of Fact. Respondent's counsel did not number the facts urged in that portion of his submittal described as "Respondent's version Of The Facts." Therefore, the four paragraphs in that section will be addressed individually. Accepted. Accepted, but the contractor must not begin work without a permit being issued. Not a proper Finding of Fact but a comment on the state of the evidence. Accepted. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 Louis Bakkalapulo, Esquire The Wilder Center Suite 404 3000 Gulf to Bay Boulevard Clearwater, Florida 34619
