The Issue The issue is whether proposed amendments to the Collier County comprehensive plan are in compliance with the criteria of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background Located in southwest Florida, south of the Caloosahatchee River and southeast of Lake Okeechobee, Collier County comprises about 2000 square miles or 1.28 million acres. The County borders the Gulf of Mexico on the west, Lee and Hendry counties on the north, Broward and Dade counties on the east, and Monroe County and the Gulf of Mexico on the south. Contiguous tracts of government-owned land occupy much of the County, especially the southeast portion of the County. These tracts include the Big Cypress National Preserve, Everglades National Park, Fakahatchee Strand State Preserve, Ten Thousand Islands Aquatic Preserve, Collier Seminole State Park, and, at the northwest corner of these public holdings, the Florida Panther National Wildlife Refuge. The area that is the subject of the present case is the Big Cypress Area of Critical State Concern (Big Cypress). The Big Cypress contains about 931,000 acres, of which about 778,000 are in Collier County. This represents about 60 percent of the County. Encompassing nearly all of the government-owned land identified in the preceding paragraph, as well as smaller areas of privately owned land, the Big Cypress will eventually extend to about 92 percent of the County. On July 23, 1996, the Collier County Board of County Commissioners adopted Ordinance No. 96-41. The ordinance would amend the future land use element (FLUE) of the comprehensive plan (as amended, the Plan) of Respondent Collier County (County). Petitioner Gary L. Beardsley (Beardsley) is an environmental consultant who has worked in Collier County since 1984. He appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments. Petitioner Environmental Confederation of Southwest Florida, Inc. (ECOSWF) is a confederation of about 50 organizations in Collier, Lee, Hendry, Charlotte, Sarasota, and DeSoto counties. Through its representative, Beardsley, ECOSWF appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments. Intervenors Barron Collier Partnership and Collier Enterprises are general partnerships. Intervenors Russell A. and Aliese Priddy; John E. Price, Jr.; and James E. Williams, Jr. are residents of, and maintain their primary places of business in, Collier County. Intervenors own over 56,000 acres in the Big Cypress. Their land is zoned agricultural, and they engage in active agricultural activities on much of this land. Barbara Cowley, as representative of Intervenors, submitted comments to the Collier County Board of County Commissioners while the Board was considering the plan amendments. Plan Provisions The challenged plan amendments would reinstate three agricultural exemptions from land-use restrictions otherwise imposed by the Plan upon agricultural activities in the Big Cypress. The land-use restrictions presently in effect limit site alterations, drainage, and structural installations in the Big Cypress with no exemption for agricultural activities. The Plan originally exempted agricultural activities from the prohibitions against site alterations, drainage, and structure installations in the Big Cypress. In 1991, when adopting its land development regulations, Collier County amended the Plan to eliminate these agricultural exemptions in the Big Cypress. Adopting a recommendation of a citizen advisory committee, Collier County reasoned that “agricultural uses are intensive uses which alter the land significantly and should be regulated with regard to the site alteration, drainage, and structure installation requirements as other land uses are within the Critical Area.” Five years later, Collier County decided to readopt the original agricultural exemptions in the land development regulations and the Plan. A fourth plan amendment in the adoption ordinance affects land uses outside the Big Cypress; it is restated below, but Petitioners have challenged only the three amendments reinstating the original agricultural exemptions. The proposed plan amendments would change the FLUE. Following the FLUE goals, objectives, and policies, the FLUE provides detailed explanations of the FLUE designations. Although not in the form of goals, objectives, and policies, these explanations are operative provisions of the Plan. The proposed plan amendments would revise the explanatory section entitled, “Area of Critical State Concern Overlay” (Overlay). The Overlay applies to land uses in the Big Cypress. As originally adopted, the Plan required that all “development orders” comply with Chapter 27F-3, Florida Administrative Code, which regulated activities in the Big Cypress. (Chapter 28-25 has since superseded Chapter 27F-3.) As amended in 1993, the Plan now provides that development orders in the Big Cypress must comply with the rules of Chapter 27F-3 or the Overlay provisions, whichever are more restrictive. Overlay Section A addresses site alterations, Overlay Section B addresses drainage, and Overlay Section D addresses structure installations. Overlay Section A.1 provides: Site alterations shall be limited to ten percent of the total site size, and installation of nonpermeable surfaces shall not exceed 50 percent of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site. The original agricultural exemption for site alterations was contained in Overlay Section A.8, which provided: “This rule [i.e., the Overlay provisions governing site alterations] shall not apply to site alterations undertaken in connection with the agricultural use of land or for the conversion of land to agricultural uses.” The proposed plan amendments would readopt this original language. The plan amendment not challenged by Petitioners eliminates the percentage limitation for site alterations for conservation purposes. The unchallenged plan amendment states (new language underlined and repealed language stricken through): For land zoned agricultural Estates, outside of the Area of Critical State Concern, and identified as Southern Golden Gate Estates in Goal 2 of the Golden Gate Area Master Plan, that is engaged in or is proposing bona fide agricultural use(s), site alteration percentage limits may be adjusted for site alteration activities designed for conservation and/or environmental purposes as set forth in an environmental impact statement approved by the Board of County Commissions. Such site alteration activities include: (i) prescribed fires and associated firebreaks as approved by the Florida department of forestry; (ii) removal and control of listed exotic plant species; (iii) native habitat occurring plant species; (v) [sic] restoration of historical hydroperiods; and (vi) other activities designed for conservation and environmental purposes reviewed on a case by case basis. Overlay Section B addresses drainage in the Big Cypress. Section B.2 requires new drainage facilities to release water in a manner approximating the natural local surface flow regime . . . either on-site or to a natural retention or filtration and flow area. New drainage facilities shall also maintain a groundwater level sufficient to protect wetland vegetation through the use of weirs or performance equivalent structures or systems. Said facilities shall not retain, divert, or otherwise block or channel the naturally occurring flows in a strand, slough, or estuarine area. Originally, Section B.4 provided: “This rule shall not apply to drainage facilities modified or constructed in order to use land for agricultural purposes or to convert land to such use.” The proposed plan amendments would readopt this original language. Overlay Section D addresses the installation of structures in the Big Cypress. Section D.1 requires that the “[p]lacement of structures shall be accomplished in a manner that will not adversely affect surface water flow or tidal action.” Originally, Section D.3 provided: “This rule shall not apply to structures used or intended for use in connection with the agricultural use of the land.” The proposed plan amendments would readopt this original language. Goal 1 of the Conservation and Coastal Management Element (Conservation) states: “The County shall continue to plan for the protection, conservation, management and appropriate use of its natural resources.” Conservation Objective 1.1 states: By August 1, 1994, the County will complete the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. . . . The FLUE also contains an overlay for areas of environmental concern. However, the only significance of this overlay is that the County promises later to adopt land development regulations governing development in such areas. As a Plan provision, this overlay does not directly protect any natural resources. The Plan contains definitions to clarify terms used in the Collier County Comprehensive Plan and not to establish or limit regulatory authority of other agencies or programs. Some definitions have been changed from those found in Chapter 163, Florida Statutes to reflect local usage. Paragraph 64 of the definitions defines “development” as the “act, process, or result of placing buildings and/or structures on a lot or parcel of land or clearing and/or filling of land.” A “note” at the end of the explains the meaning of “properly,” “appropriate(ly),” and “effective(ly).” The note explains that these words are used to allow the Board of County Commissioners flexibility in its decision making process for the issuance of development orders . . .. Because several areas of this plan identify future studies and/or programs, flexibility was reserved by the Board of County Commissioners until these studies and programs have been completed and specific statements could be developed for inclusion in the Growth Management Plan through the amendment process. DCA Review of the Proposed Plan Amendments The County transmitted the proposed plan amendments to Respondent Department of Community Affairs (DCA) to determine whether they are in compliance, as required by Section 163.3184(1)(b). By Objections, Recommendations, and Comments (ORC) issued February 9, 1996, DCA announced objections that, if not addressed, could have provided the basis for a determination that the plan amendments were not in compliance. The ORC contends that the plan amendments are not supported by data and analysis. The ORC states that Collier County did not provide any data and analysis to “justify reinstatement of the agricultural exemptions.” The ORC recommends that the County describe the conditions that have “occurred or changed to warrant reinstatement of the agricultural exemptions” and “consider and assess the practicality of allowing less than 100 percent clearing in areas where significant natural resources occur or could be adversely affected.” The ORC notes that Collier County provided no analysis of the environmental impacts that could result from reinstating the agricultural exemptions. The ORC contends that the plan amendments are internally inconsistent. The ORC explains that reinstatement of the agricultural exemptions creates a “potential for loss (through clearing activities) of natural resources such as wetlands and listed species['] habitats.” The ORC questions the consistency of the reinstatement of the agricultural exemptions, with the attendant loss of natural resources, with Conservation Goal 1 and Objective 1.1. The ORC suggests that the County consider additional protection from agricultural uses for areas within the Big Cypress that contain “significant natural resource areas.” The ORC contends that the plan amendments are inconsistent with Goal 8 and Policy 8.10 and Goal 10 and Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan, as set forth at Section 187.201, Florida Statutes. The ORC contains the comments of various state and regional agencies, including the Southwest Regional Planning Council, Department of Environmental Protection (DEP), and South Florida Water Management District (SFWMD). The Southwest Regional Planning Council determined that the plan amendments were consistent with the Strategic Regional Policy Plan of the Southwest Regional Planning Council and recommended that Collier County, SFWMD, or another entity monitor the impacts in the Big Cypress of the agricultural activities that would be permitted by the amendments. DEP noted that Collier County had not analyzed the impact of the readoption of the agricultural exemptions on lands designated for agricultural use. DEP mentioned that agriculturally designated lands may include sensitive habitats used by threatened or endangered species and thus “deserve a special classification.” DEP also linked agricultural practices in the area to problems in water quality and quantity, as well as disturbed hydroperiods. For these reasons, DEP suggested that the County designate appropriate lands as Conservation and enlist DEP’s assistance in forming stewardship alliances with landowners in the Big Cypress to preserve these natural resources. SWFWMD commented that it does not exempt most agricultural activities from its Environmental Resource Permitting requirements. But SWFWMD added that the “site alteration and drainage regulations of the . . . Overlay represent a valuable addition.” The County did not revise the proposed plan amendments after receiving the ORC. Explaining the County’s position, a staff memorandum dated March 4, 1996, asserts that the proposed amendments are supported by data and analysis because the amendments achieve consistency with Chapter 28-25, do not prevent the County from adopting land development regulations to protect the affected natural resources, and affect a small amount of undeveloped land (14 of 81 square miles) as compared to the large amount of land owned or about to be owned by public entities. The March 4, 1996, memorandum disclaims any inconsistency between the proposed plan amendments and Conservation Goal 1 and Objective 1.1. In support of this claim the memorandum cites Policy 1.1.2, which calls for the adoption of land development regulations incorporating the Conservation goals, objectives, and policies; Policy 1.1.5, which is to avoid duplication of effort with private and public agencies; and Policy 1.1.6, which is to balance the benefits and costs of the County conservation program between the public and private sectors. On September 9, 1996, DCA published in the Naples Daily News its Notice of Intent to find the proposed plan amendments in compliance. On September 30, 1996, Petitioners filed their petition challenging the proposed plan amendments. Data and Analysis In its proposed recommended order, Collier County cites as supporting data and analysis the same items asserted in the March 4, 1996, memorandum. In isolation, these items offer little, if any, support for the readoption of the agricultural exemptions. In the context of the readily available data and analysis, the data and analysis on which the County relies provide no support for the blanket reinstatement of the agricultural exemptions proposed by the plan amendments. The County argues that the reinstatement of the agricultural exemptions is supported by the presence of an identical exemption in Chapter 28-25 for agricultural activities in the Big Cypress. This argument treats the rules protecting areas of critical state concern as a “safe harbor” so that, if incorporated into a local government’s comprehensive plan, they assure a finding of supporting data and analysis. The effect of this argument is that comprehensive plans would provide greater protection from agricultural activities to natural resources outside areas of critical state concern than they would provide the same natural resources in areas of critical state concern. The County implies that the proposed plan amendments would have little effect because relatively little land of the affected land remains undeveloped, most of the land is in public ownership, and much of the remainder of the land will be in public ownership. Although the percentage of such undeveloped, privately owned land may be low, the actual area remains significant. Also, proposed agricultural exemptions apply to land already in agricultural use, not just undeveloped land proposed for conversion to agricultural use. Each proposed exemption applies to activities “to use land for agricultural purposes or to convert land for such use.” Obviously, adding privately owned agricultural land to privately owned undeveloped land means that the proposed exemptions would affect even more land. Lastly, the County, in effect, argues for a relaxation of land-use restrictions on land just prior to its public acquisition. Such an action would jeopardize the purpose of what has been an ambitious land-acquisition program to protect the important natural resources of this area. The County argues that its land development regulations protect any natural resources left vulnerable by the reinstatement of the agricultural exemptions. As compared to plan provisions, land development regulations are easily repealed and do not generally, in the best of circumstances, supply much support, as data or analysis, for plan provisions. This case does not present the best of circumstances given the valuable and extensive natural resources and the reliance on land development’s regulations to the exclusion of the Plan provisions that the County effectively proposes to repeal with the reinstatement of the agricultural exemptions. The County argues that other permitting regimes govern agricultural uses in the Big Cypress. Most notably, the area of critical state concern program obviously does not. The vigorous participation of the Intervenors and the comments of the SFWMD suggest that the failure to reinstate the three agricultural exemptions in the Plan would meaningfully restrict agricultural activities. In any event, authority dictating avoidance of duplicative permitting regimes was not intended to prohibit the County from strengthening Plan protections for the natural resources found in the Big Cypress. For the reasons stated in the preceding paragraphs, the County’s data and analysis do not support the proposed plan amendments. In fact, the proposed plan amendments are repudiated by considerable data and analysis that the County has ignored. These data and analysis have emerged since the adoption of the Plan and 1993 plan amendments, but prior to the adoption of the proposed plan amendments. Two sources of these data and analysis are the Florida Panther: Habitat Preservation Plan—South Florida Population, which was issued in November 1993 by individuals employed by the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Florida Department of Environmental Protection, and National Park Service for the Florida Panther Interagency Committee (Habitat Preservation Plan), and Closing the Gaps in Florida’s Wildlife Habitat Conservation System, which was issued in 1994 by individuals employed by the Florida Game and Fresh Water Fish Commission (Closing the Gaps). The Habitat Preservation Plan notes that the U.S. Fish and Wildlife Service designated the Florida panther as a federal endangered species 30 years ago. Fourteen years later, the U.S. Fish and Wildlife Service approved a recovery plan for the Florida panther. The Service revised the plan six years later in 1987. The purpose of the 1987 recovery plan is to develop three viable, self-sustaining populations within the historic range of the Florida panther. This range extended through the entire southeast, not just Florida. Recovery efforts focus on three elements: stabilizing the south Florida population, preserving and managing genetic resources, and reestablishing at least two more populations elsewhere. The Habitat Preservation Plan warns that these “three elements must proceed simultaneously if recovery of the Florida panther is to be successful.” Habitat Preservation Plan at page 1. Focusing on the first element, the Habitat Preservation Plan identifies “actions that will assure the long-term preservation of habitats considered essential for maintaining a self-sustaining population of panthers in south Florida” (emphasis deleted). Id. at page 2. The Habitat Preservation Plan reports that a self- sustaining population requires at least 50 adult panthers. Id. The Habitat Preservation Plan estimates that the south Florida panther population appears stable at 30-50 adult animals. Id. at page 1. However, the plan, at page 2, cautions: Important panther habitat is being lost daily. Urban Development and agricultural expansion in occupied panther range without consideration for habitat needs of the panther are expected to accelerate as Florida’s [human] population increases. Development activities could reduce the available habitat to a level below the minimum threshold essential for a self-sustaining panther population. The Habitat Preservation Plan states that Collier is one of only four counties with a documented reproducing panther population—the other counties are Lee, Dade, and Hendry. Adult males require 200 square miles with little overlap with other males. Adult females require 75 square miles with some overlap with other panthers. Florida panther prefer white-tailed deer and feral hogs, but will also eat raccoons, armadillos, rabbits, birds, and alligators. According to the Habitat Preservation Plan, an adult panther annually eats the equivalent of 30-50 deer. The Habitat Preservation Plan states that “[l]and management plays an important role in panther habitat preservation.” Id. at page 5. According to the plan, prescribed burning, which facilitates the use of livestock range, also benefits the white-tailed deer. The plan warns that panther habitat is threatened by the invasion of nuisance exotics, such as melaleuca, Brazilian pepper, and Australian pine. The Habitat Preservation Plan asserts that the preferred panther habitats are hardwood hammocks and pine flatwoods, which are upland habitats in south Florida. Private lands in Collier County typically feature improved and native rangeland, wet and dry prairies interspersed with cabbage palm, and pine and oak forests—habitat that the panther share with other endangered or threatened species, such as the Florida sandhill crane, Audubon’s crested caracara, Florida grasshopper sparrow, and the burrowing owl. The Habitat Preservation Plan suggests that South Florida may be near carrying capacity for panthers, so that further habitat loss means the loss of panthers. Nor are the existing publicly owned lands in south Florida sufficient; they can probably support only 9-22 of the estimated 30-50 panthers in the region. Id. at page 9. The threat to panther habitat posed by agricultural uses depends entirely on the type of agricultural use for which development is proposed. The Habitat Preservation Plan acknowledges that native range and sustained yield forestry retain native habitat and “can be compatible with panther use.” Id. at page 16. Other uses, such as citrus groves, vegetable farms, and improved pasture, eliminate native habitat. However, the plan describes an ongoing evaluation of the possibility that fertilization of livestock range may boost the nutrition of deer, which would also assist the panther. Also, the plan acknowledges the importance of the configuration and scale of agricultural development. Panthers may persist in a mosaic of native and nonnative habitats where the size and configuration of an improved pasture, vegetable field or citrus grove and the composition of adjoining landscapes determine whether or not the mosaic provides suitable panther habitat. Agricultural lands interspersed with native habitats may benefit the panther’s primary prey, deer and feral hogs. Id. at page 16. The Habitat Preservation Plan warns that citrus development in particular may displace panther habitat in southwest Florida at a fast rate as grove owners, using new technologies, expand citrus into the pine flatwoods of southwest Florida. But the plan suggests that small citrus groves dispersed carefully among preserved panther habitat might provide corridors and cover for the panther. The Habitat Preservation Plan suggests that south Florida livestock range is divided equally between native range and improved pasture. Suggesting that even improved, overseeded pasture may assist the panther by providing additional food for the white-tailed deer, the plan focuses on the “size and configuration of the pasture and the interspersion and connectivity of native cover adjacent to the pasture.” Id. at page 20. Among methods of habitat preservation, the Habitat Preservation Plan lists numerous approaches that do not require acquisition of the fee simple. These approaches include incentives in landowner agreements and conservation easements to encourage the perpetuation of native range and sustained-yield forestry as opposed to other, more habitat-disruptive agricultural uses. The Habitat Preservation Plan describes a number of laws that assist in the preservation of panther habitat. Although not mentioning the state laws governing development in areas of critical state concern, such as Big Cypress, the plan discusses Chapter 163, Part II, Florida Statutes, and the role of the comprehensive plans of local governments, such as Collier County, whose jurisdictions encompass prime panther habitat. Using available data, the Habitat Preservation Plan identifies habitats suitable for preservation as priority one or priority two. Priority one habitats, which include much of the still-forested area affected by the proposed plan amendments, comprise the “lands most frequently used by the panther and/or lands of high quality native habitat suitable for the panther . . ..” Id. at page 34. The first of several recommendations contained in the Habitat Preservation Plan is to: Develop site-specific habitat preservation strategies for [priority one] lands considered essential to maintaining the Florida panther population south of the Caloosahatchee River at its present level. Strategies should emphasize preservation of suitable panther habitat on private lands by methods that retain private ownership of those lands to the extent possible, and implement management practices on public lands that, based on existing data, would be expected to result in improved habitat conditions for the panther. Id. at page 37. Quantitatively, priority one lands south of the Caloosahatchee River that are not designated for federal or state acquisition constitute 203,500 acres. Id. If implemented, the first recommendation would preserve the land where 43 panthers were found 98 percent of the time during the period of study. Id. Again ignoring the laws governing development in areas of critical state concern, the ninth recommendation is for DCA, the regional planning councils, and local governments to review their efforts in protecting panther habitat in the context of the provisions of the Habitat Preservation Plan. Closing the Gaps addresses the habitat needs of a variety of species, not only the Florida panther. The findings and conclusions of Closing the Gaps agree with those of the Habitat Preservation Plan as to the panther. Closing the Gaps finds that nearly all of the Big Cypress not publicly owned is good habitat for the Florida panther, as well as the Florida black bear and American swallow- tailed kite. Closing the Gaps reports that nearly all of the Big Cypress already hosts a stable black bear population. Closing the Gaps rates much of the privately owned portion of the Big Cypress as outstanding potential bear habitat, in terms of proximity to conservation areas, extent of roadless areas, diversity of cover types, and the presence of specific cover types. Closing the Gaps also finds that isolated County locales, including some in the affected area, present good potential habitat for the Florida sandhill crane, although much more extensive potential habitat is found north and east of Collier County. Closing the Gaps includes Collier County in the Southwest Florida Region, which does not include any of Monroe or Dade counties. Closing the Gaps calls this region, which extends north to Sarasota County, “the most important region in Florida” in terms of “maintaining several wide-ranging species that make up an important component of wildlife diversity in Florida . . ..” Id. at page 173. As to the area northwest of the Big Cypress National Preserve, Closing the Gaps asserts that the “mixture of cypress swamp, hardwood swamp, dry prairie, and pineland represents one of the most important wildlife areas remaining in Florida.” Id. at page 174. Closing the Gaps cautions: “The threats facing Florida panthers require quick and aggressive action if panthers are to be saved from extinction. . . . [B]ut the situation is far from hopeless if quick actions are taken.” Closing the Gaps, page 68. Repeating the warning of the Habitat Preservation Plan, Closing the Gaps cautions that “[o]ne of the greatest threats to the continued existence of panther habitat in south Florida is conversion of large areas of rangeland and native land cover to agriculture.” Id. In particular, citrus development threatens to subdivide existing, contiguous panther habitat, including that land covered by the proposed plan amendments. Closing the Gaps concludes with suggestions for how to protect valuable natural resources. Acknowledging that acquisition is the most effective and least controversial of methods, Closing the Gaps suggests the purchase of lesser rights, such as conservation easements or development rights. Omitting mention of the state program designating areas of critical state concern, Closing the Gaps advises that local governments protect valuable habitat through their comprehensive plans. The Plan currently prohibits various agricultural activities in the Big Cypress. The prohibited activities are the alteration of more than 10 percent of the site; installation of structures that would alter surface water flow; and implementation of drainage systems that fail to approximate the natural local surface flow regime, maintain sufficient groundwater levels to protect wetland vegetation, or retain, divert, or impede the naturally occurring flows in a slough or strand. The proposed amendments would permit these activities, if done for agricultural purposes. The data and analysis do not support the blanket reinstatement of the proposed agricultural exemptions. The data and analysis support the present Plan provisions. The data and analysis might support a more sophisticated approach to agricultural activities, with due regard to the extent and configuration of various types of agriculture in terms of the impact on endangered species and their habitat. However, the County has not attempted such an approach with the proposed plan amendments, and it is premature to consider further what such an approach might involve. To the exclusion of fair debate, the proposed amendments are unsupported by the data and analysis. Internal Consistency Conservation Objective 1.1 required the County, by August 1, 1994, to adopt and implement a “comprehensive environmental management and conservation program” to “ensure that the natural resources, including species of special status,” are “properly, appropriately, and effectively identified, managed, and protected.” The covered species are those listed as endangered and those listed by the Florida Game and Fresh Water Fish Commission as endangered and potentially endangered. Conservation Objective 1.1 promised future action. By mid-1994, the County was required to adopt a program to “properly, appropriately, and effectively . . . protect. . .” listed species. Absent a Plan requirement that such protection be expressed in the Plan, the County arguably could have discharged this requirement by adopting land development regulations. And perhaps that was the intent of the 1993 changes to the land development regulations and Plan. The words of flexibility—“properly,” “appropriately,” and “effectively”—reveal the promissory nature of this objective. According to the Plan, these words were designed to leave the County flexibility until it later completed the necessary work so “specific statements could be developed for inclusion” in the Plan. By the language of Conservation Objective 1.1, the promise came due in 1994. Perhaps part of the County’s response was the elimination of the agricultural exemptions that it is now trying to reinstate. In any event, the Plan does not now allow the County to repudiate its undertaking to “protect” the Florida panther “properly, appropriately, and effectively.” Regardless of the flexibility accorded these three adverbs, Conservation Objective 1.1 does not permit the County to amend the Plan so as to facilitate further loss of panther habitat, which the data and analysis disclose would be the inevitable result of the reinstatement of the agricultural exemptions. To the exclusion of fair debate, the proposed plan amendments are inconsistent with Conservation Objective 1.1. Consistency with the State Comprehensive Plan As set forth in Section 187.201(8)(a), Florida Statutes, Goal 8 of the State Comprehensive Plan states that Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality. Florida shall improve and restore the quality of waters not presently meeting water quality standards. As set forth in Section 187.201(b)10, Policy 8.10 of the State Comprehensive Plan is to “[p]rotect surface and groundwater quality and quantity in this state.” Notwithstanding DEP’s comments, as reflected in the ORC, the record is not sufficiently developed as to water-quality issues to permit a finding that, to the exclusion of fair debate, the proposed amendments would conflict with these water-quality provisions of the State Comprehensive Plan. As set forth in Section 187.201(8)(a), Goal 10 of the State Comprehensive Plan states that Florida shall protect and acquire unique habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition. As set forth in Section 187.201(b)10, Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan are to Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational value. * * * 3. Prohibit the destruction of endangered species and protect their habitats. * * * 5. Promote the use of agricultural practices which are compatible with the protection of wildlife and natural systems. * * * 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. To the exclusion of fair debate, the proposed plan amendments are inconsistent with the provisions of the State Comprehensive Plan providing for the conservation of forests and the wildlife using the forests from intense agricultural uses, such as for citrus groves, vegetable farming, and improved pasture; the protection of the endangered Florida panther and other species through the protection of their critical and essential habitats; and the promotion of agricultural practices that are compatible with the protection wildlife and natural systems. Notwithstanding general depictions of wetlands in various sources of data and analysis, the record is not sufficiently developed as to the treatment by the proposed amendments of wetlands in the Big Cypress to permit a finding that, to the exclusion of fair debate, the proposed amendments conflict with these wetland provisions of the State Comprehensive Plan.
Recommendation It is RECOMMENDED that the Department of Community Affairs submit this recommended order to the Administration Commission for entry of a final order determining that that proposed plan amendments are not in compliance. DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997. COPIES FURNISHED: Attorney Thomas W. Reese 2951 61st Avenue South St. Petersburg, Florida 33712 Shaw P. Stiller Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Ramiro Manalich Chief Assistant County Attorney Marjorie M. Student Assistant County Attorney Collier County Attorney Office 8th Floor, Administration Building 3301 Tamiami Trail East Naples, Florida 34112-4902 C. Laurence Keesey Young, van Assenderp & Varnadoe, P.A. SunTrust Building 801 Laurel Oak Drive, Suite 300 Naples, Florida 34018 Stephanie Gehres Kruer General Counsel 2555 Shummard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 James F. Murley, Secretary 2555 Shummard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
Findings Of Fact Petitioner is the owner and developer of a housing subdivision and its associated canal system known as "Alligator Harbor, Franklin County, Florida." Petitioner's property was originally a saw grass marsh which was, during times of high water, connected to Alligator Harbor by a shallow creek. In 1971, Petitioner's agent, Harry Morrison, filed an application with the Trustees of the Internal Improvement Trust Fund seeking to connect a proposed race-track shaped canal built on the upland property to Alligator Harbor by way of an access channel 120 feet wide, narrowing to 15 feet wide, 598 feet long, with depths at mean low water ranging from .1 foot to 3.2 feet. Construction of the inland canal began in 1972, and was completed in January of 1973, prior to final action by the Trustees on the access channel application. In order to construct the inland canal, dredging was conducted around the perimeter of the saw grass pond, with the dredged material being deposited in the center of the dredged area, thereby creating an oval inland canal surrounding an island created by deposition of the dredged material. At the same time, further dredging from the oval canal through the natural tidal creek was performed in order to straighten the creek. In February, 1973, a connection was made to Alligator Harbor from the inland canal when the creek was dredged to allow removal of the dredging equipment through the waters in Alligator Harbor. The connection between the upland canal and Alligator Harbor was then plugged, although an overflow pipe, two feet in diameter, was left in the plug. There is no reliable evidence in the record of this cause to establish either the elevation at which this overflow pipe was located, or the volume or frequency of water exchanges between the inland canal system and Alligator Harbor through that pipe. By April, 1973, the plug apparently had been washed out, but was replaced within a month at the request of the Trustees. The 1971 application to the Trustees for a permit to connect the canal to Alligator Harbor was subjected to the customary permit review process, which included requests for comments from other agencies. The Department of Natural Resources and the Game and Fresh Water Fish Commission submitted comments and recommendations for denial, respectively, in March and May, 1972. The Department of Pollution Control, DER's predecessor agency, in February, 1973, recommended denial of the request on the grounds that the receiving waters were approved shellfish harvesting areas. The proposed project remained dormant for a number of years, apparently because the applicant wished to make modifications in the proposal. Finally, on March 25, 1976, a Letter of Intent to deny was sent to the applicant, whereupon the application was withdrawn. Over a period of years, the material placed in the canal plug by Petitioner was washed away. This process was completed during a storm event, apparently in 1978. The washout of the plug and overflow pipe resulted in a direct water connection between the upland canal and Alligator Harbor. The upland canal system is now affected by daily natural tidal cycles. The upland canal system, as presently constituted, consists of an oval canal, approximately one mile in length, with a single connection to Alligator Harbor at the site of the washed out plug and overflow pipe. This oval canal surrounds the aforementioned island created by depositing material dredged from the former saw grass marsh. The upland canal varies in depth from areas that are totally exposed at low tide, to other areas that at times exceed ten feet in depth. The average depth of the canal is approximately six feet at low water. The banks of the canal are unstabilized and eroding. Layers of organic material exist on the banks, apparently as a result of deposition there during the dredging process. In addition, a thick layer of organic material exists on the bottom of the canal. On February 27, 1980, Petitioner submitted to DER a partial after-the- fact permit application to connect the inland canal system to Alligator Harbor by dredging an access channel 400 feet long by 40 feet wide, to a depth of -4 feet. In addition, the permit application sought to shoal a deed depression in the interior canal to -5 feet mean low water; fill an indention in the canal waterway; replace two metal culverts which currently connect the canal beneath a causeway to the island with a box culvert, 13 feet wide, to a height of +5.2 feet mean high water, and a depth of -4 feet mean low water. After these proposed modifications, the canal system would average -4 feet mean low water, with a maximum depth of -5 feet mean low water. DER notified Respondent on March 17, 1980, that the application was deemed incomplete. When no satisfactory response to the letter notifying Petitioner of the incomplete status of his application was received, a Letter of Intent to deny was forwarded to Petitioner on May 28, 1980, stating the following reasons for denial of the permit application: The proposed project is located in Class II waters, approved for shellfish harvesting, and dredging in such waters is prohibited by Rule 17-4.28(8)(a) Florida Administrative Code; Petitioner failed to provide reasonable assurances that the project would not violate state water quality standards for Class II waters contained in Chapter 17-3, Florida Administrative Code, particularly7for the parameters of dissolved oxygen (DO), nutrients, bacteriological quality and biological integrity; The proposed project is located in Alligator Harbor, which has been designated an Outstanding Florida Water (OFW), and no DER permit or water quality certification may be issued for the construction of a stationary installation which significantly degrades water quality in OFWs either alone or in combination with other stationary installations, pursuant to Rule 17-4.242(1)(a) Florida Administrative Code. Further, DER advised Petitioner that he had not affirmatively demonstrated that the proposed activity or discharge was clearly in the public interest Pursuant to Rule 17-4.242(1)(a)2, Florida Administrative Code, and that existing ambient water quality within Alligator Harbor would not be lowered as a result of the proposed activity or discharge in accordance with Rule 17-4.242(1)(a)2b, Florida Administrative Code. The project and impacts from similar projects would degrade Alligator Harbor, and would interfere with the conservation of fish, marine and wildlife or other natural resources and natural shoreline processes to such an extent as to be contrary to the public interest in accordance with Rule 17-4.29(6)(a), Florida Administrative Code. Alligator Harbor, which, as indicated above, is a Class II water body designated for shellfish harvesting, and which has also been declared an Outstanding Florida Water, is a shallow marine basin with sediments ranging from soft mud to sand. Large marsh areas bordering on the harbor produce large quantities of organic detritus, and are characterized by soft, organic bottoms. Because of the ready exchange of waters between many of these marshes and Alligator Harbor, that water body likewise is characterized by an organic bottom, where fine, silty sediments have settled out. As indicated above, Petitioner's application to dredge an access channel into the waters of Alligator Harbor indicates that the channel's length will be 400 feet from its junction with the inland canal system, and that it will be dredged to a depth of -4 feet. At 200 feet offshore of the mouth of the inland canal system Alligator Harbor has a natural water depth of approximately one foot, dropping off to two feet 400 feet offshore, and three feet at a distance of 500 feet offshore. Because of the soft organic bottoms present in Alligator Harbor, the access channel may be expected to fill in with the fine sediments present in the system within a short period of time. As a result, in order to keep the channel available for its obviously intended uses, extensive maintenance dredging will have to be performed, perhaps as often as annually. In fact, the canal systems already existing in the Alligator Harbor area have evidenced such a maintenance dredging problem, and have all begun to shoal in extensively within a year from their construction. Frequent maintenance dredging results in a constant disturbance of existing biological systems. These systems may repopulate after a single maintenance dredging event, only to be disturbed again when additional dredging is necessitated to alleviate shoaling problems. Where maintenance dredging occurs, total elimination of biological systems in the area of dredging results. As the areas in either the navigation channel or portions of the inland canal shoal in as a result of the soft bottom sediments, water circulation would be reduced, thereby reducing the quality of water contained ire the inland canal system. At present, 114 lots on Petitioner's property have been platted for single family homes. Few homes have been built in the subdivision. However, those that have been built have all utilized septic tanks. Although Petitioner does not propose to develop the fill island until a central sewage facility is available, local regulations permit the installation of septic tanks on those lots around the outside perimeter of the inland canal. Petitioner's application, in fact, indicates that septic tanks will be utilized on the outside perimeter, and that those tanks will be placed in the landward 50 percent of those lots. Studies have indicated that septic tanks, when utilized in coastal areas, should be limited to areas of low residential densities because constituents from septic tanks often reach coastal waters in very short periods of time. The most common constituents found in septic tank leachate are nitrogen and total organic carbon. These are commonly found in higher amounts in canal systems surrounded by intense development. Because of the naturally high water table in coastal areas, septic tank leachate percolating through the soil tends to perch on top of organic materials, and then move laterally toward canal waters. In addition to nitrogen and total organic carbon, phosphorus, bacteria, and viruses also are constituents of septic tank leachate. Although some removal of biological constituents might be expected to occur, those constituents not removed would remain in the soil until washed into the canal waters either by the action of rainfall falling in situ, or through tidal influences. The record in this cause establishes that, should the canal system be opened, and the proposed improvements in that system completed, the system would flush in 5.6 tidal cycles, or about three days. The standard mathematical model applied to the canal system to reach this conclusion is called the "tidal prism model." This model measures the volume of water entering an exiting the system on every tide to determine the number of tidal cycles necessary before the ratio of the original concentration of any pollutant in the system to the final concentration of that pollutant reaches 10 percent. As a result, even though the proposals might improve water quality in the inland canal system, any pollutants entering the system, any pollutants entering the system either through storm water runoff or septic tank leachate would be removed from the inland canal system into waters of the State within a relatively short period of time. During September of 1981, both DER and Respondent performed water quality sampling in and adjacent to the canal system. DER sampled for temperature, surface salinity, surface pH and dissolved oxygen (DO) at eight locations, seven within the canal system and one location in Alligator Harbor. DER sampling stations were numbered one through eight, with station No. 4 representing the location in Alligator Harbor where samples were taken. Sampling began at 7:45 a.m. on September 17 and ended at 9:30 a.m. on that same date. Results of the DER sampling are shown on the table on the following page. Station Time Temp. deg Surface Salinity D.O. Surface pH Celsius Percent 1 7:45 27(S) 27(1m) 26 2.0(S) 2.9(1m) 7.7 2 8:10 27(S) 27(1m) 24 3.4(S) 3.3(1m) 7.6 3 8:25 27(S) 27(2m) 25 3.8(S) 8.8(2m) 7.5 4 8:45 26(S) 26(0.75m) 26 5.4(S) 5.0(0.75m) 7.8 5 9:00 26.8(S) 26.8(0.5m) 26 5.4(S) 5.4(0.5m) 7.8 6 9:14 26.5(S) 26.5(1m) 24 6.0(S) 3.1(1m) 7.8 7 9:23 27(S) 27(1m) 26 5.3(S) 3.4(1m) 7.8 8 9:43 27(S) 27.5(1m) 26.5 (2.3m) 24 4.8(S) 2.0(1m) 4.8(2.3m) 7.6 DER rules require that DO concentrations in all waters shall not average less than five milligrams per liter in a 24-hour period, and are required to never be less than four milligrams per liter. The record in this cause establishes that these water quality samplings were conducted in accordance with accepted methodology, and that the circumstances under which they were taken, including location and time of day, were sufficient to establish their accuracy. In addition to the DO violations presently existing in the inland canal system, further development of the property could also be expected to further aggravate the situation by way of increased storm water runoff, increased contributions of nutrients from septic tanks, detergents, and oils and greases from boat traffic, all of which inhibit the transfer of oxygen. If Petitioner's application is granted, his inland canal system will be connected to Alligator Harbor, an Outstanding Florida Water. Petitioner has asserted that he will provide a public boat ramp in conjunction with the development of his property, and that granting him access to Alligator Harbor by way of the canal system and associated access channel will stimulate single family home construction, thereby increasing the tax base of Franklin County. However, the record in this cause establishes that ample public access to the waters of Alligator Harbor and its environs already exists. Finally, Petitioner's assertion that granting his application for variance would stimulate single family home construction and increase the tax base of Franklin County, insofar as can be determined from this record, is conjectural, and not supported by any credible evidence.
The Issue Whether grounds exist to deny Petitioner's Class III Personal Use Application, which would allow him to personally possess a capuchin monkey. 1 All statutory references are to Florida Statutes (2020), unless otherwise noted.
Findings Of Fact The Commission is the state agency that exercises regulatory and executive powers with respect to wild animal life, fresh water aquatic life, and marine life within Florida. Art. IV, § 9, Fla. Const. The Commission is also responsible for promulgating rules regarding wild animal life in the state. § 379.1025, Fla. Stat. Petitioner desires to "personally possess" a capuchin monkey named "Roxy." To do so, Petitioner must first obtain a Class III captive wildlife pet permit from the State of Florida. As a brief background, Roxy currently belongs to identical twin sisters, Yvonne Robertson, née Hicks, and Yvette Hicks. The Hicks sisters obtained Roxy as a baby in 2006, when they lived in West Virginia. The twins quickly grew enamored with Roxy, and adopted five more capuchin monkeys over the next few years. In 2013, the sisters moved to Florida. They bought a house in Sebring with enough property to construct a large habitat, which would enable their growing "troop" of monkeys to enjoy a healthy lifestyle in a more natural environment. Upon arriving in Florida, both sisters sought the required licenses to possess their animals. Yvonne Robertson applied for, and received, a Class III permit from the Commission. Yvette Hicks applied for, and received, the corresponding permit from the U.S. Department of Agriculture. The sisters now own and house 14 capuchin monkeys on their property. 2 By requesting a deadline for filing post-hearing submissions beyond ten days after the final hearing, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). After establishing their residence, the Hicks sisters formed the business "Twins & Jungle Friends." Soon thereafter, they began showing their capuchin monkeys at a variety of events across the state. The "Twins & Jungle Friends" dynamic changed slightly in 2015, when Yvette Hicks met Petitioner. Yvette and Petitioner swiftly developed, and are currently enjoying, a serious personal relationship. At first, Petitioner moved into the sisters' house to help the twins care for their monkeys. The monkeys quickly took to Petitioner, and he became involved in every aspect of nurturing and raising the animals. Petitioner formed an especially close bond with the twins' oldest capuchin monkey, Roxy. As more fully discussed below, in early 2018, Petitioner and Yvette Hicks decided to move to Petitioner's home. Petitioner also desired for Roxy to come live in a habitat he built in his backyard. For authorization to keep Roxy at his house, Petitioner was required to apply for a Class III wildlife pet permit from the Commission.3 See §§ 379.3761 and 379.3762, Fla. Stat., and Fla. Admin. Code R. 68A-6.003(5) and 68A-6.004(3). Accordingly, on July 16, 2018, Petitioner submitted to the Commission a Class III Personal Use Application and Questionnaire (the "Application") for "One Black Capped Capuchin Monkey (Sapajus Apella)." Pursuant to Florida Administrative Code Rule 68A-6.004(3)(c), to receive a Class III permit for a capuchin monkey, Petitioner is specifically required to meet the age, experience, and examination requirements for authorization to possess Class II wildlife as set forth in rule 68A-6.004(2)(d). Rule 68A-6.004(2)(d) requires applicants to document one year of experience, to consist of no less than 1,000 hours, "in the care, feeding, handling, and 3 The Commission, by rule, has established three categories, or "Classes," of captive wildlife in Florida. Class I includes animals that pose a significant, potentially lethal, risk to public safety, including lions, tigers, and bears. Class II includes animals that are capable of inflicting serious bodily harm, such as alligators, coyotes, and ostriches. Class III encompasses all other wildlife (including capuchin monkeys) not listed in Class I or II. See Fla. Admin. Code Rule 68A-6.002. husbandry of the species for which the permit is sought." See Fla. Admin. Code R. 68A-6.004((2)(c)1. Further, the documentation must include references of at least two individuals who have personal knowledge of the applicant's experience. Fla. Admin. Code R. 68A-6.004(2)(c)2.c. Petitioner, to demonstrate that he met the experience requirement, included two documents with his Application, which became the focus of the Commission's decision to deny Petitioner a permit to possess Roxy. The first document is an 11-page Documentation of Experience form (downloaded from the Commission's website), which records all the hours Petitioner worked in the "care, feeding, handling and husbandry" of capuchin monkeys from October 22, 2016, through February 11, 2018. The form reported that Petitioner worked eight hours a day with capuchin monkeys for approximately 8 to 10 days each month during that time period. Supporting this form is a typed letter describing the different entries written in the Documentation of Experience form, and bears the signature "Yvonne Hicks." (Yvonne Robertson's maiden name.) The letter represents that Petitioner has conducted all of his hours of experience under the supervision of Yvonne Hicks (Robertson), who holds an active Class III license from the Commission to possess capuchin monkeys. The second document is a separate letter of reference, also signed "Yvonne Hicks," which states: I Yvonne Hicks have witnessed [Petitioner take] care of many of our primates. He is very knowledgeable on the feeding caring and medical maintenance of the monkeys. He has also been part of our traveling entertainment business since October 2016. He will provide a very safe and loving home for primates. The Commission denied Petitioner's Application in a Notice of Denial letter, dated January 8, 2019. In its letter, the Commission stated that its decision was due to the following: Within your application … you submitted documented hours … under the supervision of license holder, Yvonne Hicks, along with a letter of reference from Ms. Hicks. … [However,] Ms. Hicks informed Investigator Zimmerman both the hours and the letter submitted to the Captive Wildlife Office had been falsified. For legal support, the Commission based its denial decision on rule 68- 1.010(1), which directs that the Commission "shall" deny an application based on the following grounds: Submission by the applicant of false, misleading, or inaccurate information in the application or in any supporting documentation provided by the applicant or on behalf of the applicant relating to the license ..." In short, the Commission alleges that Petitioner falsified his Application by intentionally misrepresenting, if not forging, information submitted with his Application regarding his experience working with capuchin monkeys. To expound on the basis for its decision, at the final hearing, the Commission offered the testimony of Erika Zimmerman, an investigator in the Commission's Captive Wildlife Office. Investigator Zimmerman's primary responsibilities are to ensure that individuals who apply for captive wildlife permits will offer humane and sanitary treatment to the animals they wish to possess, as well as maintain public safety. Investigator Zimmerman explained that, in early 2018, she was assigned to investigate the efficacy of granting Petitioner a Class III permit to possess a capuchin monkey. To begin her investigation, Investigator Zimmerman met Petitioner at his house on February 1, 2018, in order to inspect the cage in which he intended to keep his monkey (Roxy). Upon arriving at Petitioner's home, however, Investigator Zimmerman found that Petitioner was already boarding several capuchin monkeys in a backyard enclosure. Because Petitioner did not already possess a Class III permit, she directed Petitioner to remove the monkeys from his property and return them to the proper license holder, Yvonne Robertson. The next event in Investigator Zimmerman's involvement occurred in April 2018. That month, she received a phone call from Yvonne Robertson. Ms. Robertson proclaimed to Investigator Zimmerman that if Petitioner presented the Commission with any correspondence, letter, or paperwork bearing her signature, it was a forgery. Ms. Robertson disclosed to Investigator Zimmerman that the Commission had previously denied Yvette Hicks (her sister) a permit to keep capuchin monkeys. Therefore, Ms. Hicks was conspiring with Petitioner to fraudulently obtain a Class III permit for himself. Ms. Robertson relayed that, to support his Application, Petitioner (and Ms. Hicks) had requested that Ms. Robertson substantiate his experience by verifying the hours recorded on his Documentation of Experience form. However, Ms. Robertson declared that she did not intend to sign off on any document included with Petitioner's Application. Petitioner submitted his Application to the Commission in July 2018. With the Application, Petitioner included the two letters bearing the signature "Yvonne Hicks." Upon receiving Petitioner's Application, Investigator Zimmerman promptly met with Ms. Robertson to inquire about a possible forgery. When shown the two signatures, Ms. Robertson initially affirmed that she signed the letters. But, she quickly broke down in tears and informed Investigator Zimmerman that the two signatures were forged. At that point, Investigator Zimmerman walked through with Ms. Robertson all the activities recorded on Petitioner's Documentation of Experience form. Ms. Robertson advised Investigator Zimmerman that: 1) she did not authorize the hours Petitioner allegedly worked per entry (8 hours), 2) much of the work described for each entry did not take 8 hours, and 3) (as a specific example) Petitioner did not give any of the monkeys an insulin shot. Thereafter, Investigator Zimmerman asked Ms. Robertson if she would provide a written statement memorializing their conversation. Ms. Robertson agreed, and completed a Commission Sworn Written Statement form. As Investigator Zimmerman watched. Ms. Robertson wrote: I didn't write this letter of recommendation and this is not my signature on this letter. On the App. of Documentation of hours for [Petitioner] I did not write those experience hours from 10-22-16 to 2-11- 18 and it is not my hand writing on the application. Ms. Robertson further set down that, regarding the letter describing the specific entries on the Documentation of Experience, Petitioner worked "no hours" with the monkeys related to construction, diapers, training, show, playtime, movement, meals, deworming, or administering Insulin. Ms. Robertson then signed the Sworn Written Statement with the name "Yvonne Hicks."4 Investigator Zimmerman then visited with Petitioner in August 2018. When they met, Investigator Zimmerman and Petitioner reviewed the Application. Petitioner expressed to Investigator Zimmerman that he personally completed his Application, and all representations in the Application, especially the hours worked with capuchin monkeys, were accurate. Investigator Zimmerman next confronted Yvette Hicks. Ms. Hicks became visibly upset upon learning that Ms. Robertson (her sister) would not support Petitioner's Application. Ms. Hicks maintained that all the information and signatures within the Application were accurate and true. At that point, Investigator Zimmerman concluded that Petitioner's Application contained falsehoods and forgeries. Therefore, later in August 2018, she presented her findings to the Highland County State Attorney's 4 To the naked eye, the "Yvonne Hicks" signatures on all three documents appear remarkably similar. The undersigned, however, is not a handwriting expert, and, therefore, makes no finding whether Ms. Robertson actually signed the two letters submitted with Petitioner's Application. Office to consider pressing criminal charges against both Petitioner and Yvette Hicks.5 Several months later, on January 16, 2019, Ms. Robertson met with Investigator Zimmerman and the State Attorney handling the criminal case. During that meeting, she repeated her attestation that the information in Petitioner's Application was "completely false" and her signatures were forged. Based on Ms. Robertson's declarations, criminal charges were brought against both Petitioner and Yvette Hicks for forgery. However, for reasons discussed in more detail below, in August 2019, Ms. Robertson recanted her entire testimony. Thereafter, the State Attorney's Office dismissed all charges against both Petitioner and Yvette Hicks. The Notice of Nolle Prosequi stated that: The State of Florida is unable to determine when Yvonne [Robertson] is lying and when she is not. Due to a total lack of credibility of this witness the State can not proceed further. Finally, during the final hearing, Investigator Zimmerman reviewed a handful of entries recorded in Petitioner's Documentation of Experience. She pointed out several specific areas of concern including: 1) the accuracy of the entries, 2) whether the tasks described actually consumed 8 hours of time, and 3) whether Petitioner had 8 hours of time available on several dates considering his busy work schedule with his employer, Highlands Regional Medical Center. 5 Rule 68A-6.004(2)(c)4. states: Providing false information to document the applicant's experience, by the applicant or any reference, is prohibited as provided in Sections 837.012 and 837.06, F.S. Section 837.012, Florida Statutes, directs that "a false statement, under oath, not in an official proceeding" is a first-degree misdemeanor. Similarly, section 837.06 states that "a false statement in writing with the intent to mislead a public servant" is a second-degree misdemeanor. Despite the possible discrepancies in Petitioner's Application, Investigator Zimmerman acknowledged that the Commission's application and questionnaire form does not contain any instructions or suggested format or language that applicants should use to complete the Documentation of Experience form. She also agreed that the activities Petitioner recorded, such as "interaction," "playtime," and "preparing meals" were legitimate examples of "care, feeding, handling, and husbandry" and could be performed in a variety of ways and lengths of time. John Conlin, a Lieutenant with the Captive Wildlife Office, also testified for the Commission. In his job, Lieutenant Conlin oversees the permitting process for captive wildlife in Florida. Lieutenant Conlin first became aware of Petitioner's Application when Investigator Zimmerman contacted his office to report a "red flag" due to an alleged falsified signature. Thereafter, based on Investigator Zimmerman's determination that the allegations of forgery and fraud were verified, the Captive Wildlife Office concluded that the hours of experience recorded on Petitioner's Application were false. Lieutenant Conlin commented that Yvonne Robertson was the only person with whom Petitioner worked who was licensed by the Commission to possess capuchin monkeys. Consequently, she was the only individual authorized to validate the time Petitioner spent with the monkeys. Therefore, when Ms. Robertson denied that she actually supervised the hours Petitioner claimed, the Commission designated his Application for denial. At the final hearing, Lieutenant Conlin expanded on his office's decision to deny the Application explaining that the fact that every entry on the Documentation of Experience form recorded exactly eight hours of time was a concern. The representation that Petitioner performed precisely eight hours of work with capuchin monkeys each day was not realistic. In addition, Lieutenant Conlin testified that many of the work descriptions themselves lacked sufficient details to establish the "care, feeding, handling, and husbandry" necessary to receive a permit. Despite the Commission's decision to deny Petitioner's Application, Lieutenant Conlin admitted that, if Petitioner's Documentation of Experience form was accurate, then Petitioner's Application reflects competency in the "care, feeding, handling, and husbandry" of capuchin monkeys. At the final hearing, Petitioner maintained that his Application is accurate, true, and valid, and he meets all requirements under rule 68A- 6.004 to receive a Class III wildlife pet permit to personally possess Roxy. Initially, Petitioner represented that he is a upstanding citizen and well respected professionally. He is a registered nurse and currently works as the night supervisor at Highlands Regional Medical Center in Sebring. Petitioner conveyed that he has a strong ethical track record as a hospital administrator, with no disciplinary issues. Addressing why he desires a permit, Petitioner expressed that, after meeting Yvette Hicks in October 2015, he quickly became involved with the sisters' capuchin monkeys. Although he owns his own home, he soon moved into the sister's house. From that point onward, his life has revolved around the monkeys. Petitioner testified that raising exotic animals takes time and energy. After moving in with Ms. Hicks, the monkeys dominated his life. To explain his experience in the "caring, feeding, handling, and husbandry" of capuchin monkeys recorded on his Documentation of Experience form, Petitioner recounted a typical day at the sisters' house. In the evenings, the sisters brought their monkeys inside the house to sleep with them in their beds. Then, first thing in the morning, the monkeys were taken out to their cages and fed. Meals were prepared and served twice a day. The monkeys were placed in diapers during day and showered/bathed at night. The cages themselves were cleaned once a day. Other activities, including "deworming," "interaction," "playtime," and "training" filled the gaps. Petitioner commented that every daily entry on his Documentation of Experience form was noted as "8" hours long because he understood that he could only record up to eight hours of experience per day. However, Petitioner testified that he generally spent far more than eight hours a day with the monkeys. Petitioner further relayed that Roxy, in particular, needs special attention as she has Type 1 diabetes. Her condition requires two shots of insulin a day, and her blood sugar levels must be routinely checked. Petitioner explained that, because of his nursing background, he quickly assumed responsibility for administering the shots to Roxy. Petitioner also remarked that the sisters book approximately 75 "Twins & Jungle Friends" shows a year (prior to the COVID-19 pandemic). The sisters, together with their capuchin monkeys, travel all across Florida to perform at a variety of venues, including birthday parties, corporate events, county fairs, music videos, and school functions. Petitioner expressed that he accompanied the sisters whenever he could to help handle the monkeys or set up the shows. Petitioner testified that his work with the sisters' capuchin monkeys remained consistent and steady until April 2018, when Ms. Hicks and Ms. Robertson experienced an abrupt and harsh falling out. Consequently, he suggested to Ms. Hicks that they move into his house, which they gradually did. Even so, Petitioner and Ms. Hicks continued to care for the monkeys on a daily basis. Thereafter, because of how attached he had grown to the monkeys, he wanted the ability to bring one or more of them back to his house. Therefore, he constructed a large cage in his backyard in which to house the monkeys. Regarding the Commission's stated reasons for denying his Application, Petitioner expressed that the experience recorded in his Documentation of Experience form is accurate, genuine, and true. Petitioner further testified that he did not forge or falsify the signature(s) of "Yvonne Hicks." Petitioner explained that Ms. Robertson and Ms. Hicks mended their relationship in July 2018. At that time (July 3, 2018, to be exact), Ms. Robertson signed his Application. Thereafter, he submitted it to the Commission. Petitioner declared that, since October 2016, he has easily spent over 1,000 hours a year working with capuchin monkeys. He continues to spend time every day with the monkeys. He has come to "love them like a child."6 Petitioner acknowledged that he and Ms. Hicks were arrested and charged with forgery in September 2018. However, Petitioner explained that the State of Florida dismissed the case prior to trial. Consequently, neither he nor Ms. Hicks were ever convicted of any crime for forgery or fraud related to his Application, nor are any charges currently pending. Petitioner asserted that the criminal case was based on an outright lie by Ms. Robertson, which she made because she was mad at her sister. Accordingly, Petitioner contends that his Application, on its face, easily shows that he meets the required regulatory conditions and criteria to possess a capuchin monkey. His Application amply demonstrates that he has acquired sufficient knowledge of the capuchin monkey species, as well as its nutritional and social needs, caging requirements, and safety and medical demands to qualify for a permit. Petitioner urges that his Application clearly documents over 1,000 hours of legitimate and valid experience working with capuchin monkeys, as required by rule 68A-6.004(2) and (3). Consequently, when considering the merits of his Application, Petitioner argues that he proved that the Commission should grant him a Class III permit. Petitioner's testimony regarding the work he has performed with capuchin monkeys beginning in October 2015 is credible and credited. 6 One of the benefits of video teleconferencing is that it allows a party to participate in the final hearing from any location. In this matter, Petitioner (and Ms. Robertson and Ms. Hicks) joined the final hearing from the sisters' house, which is home to Roxy and the troop of 13 other capuchin monkeys. Periodically during the hearing, Roxy traipsed across the video screen and crawled into Petitioner's arms. Both Petitioner and Roxy appeared quite at ease in each other's company, and Roxy's attachment to Petitioner was quite evident. Yvonne Robertson testified at the final hearing in support of Petitioner's Application. Ms. Robertson declared that she did, in fact, sign off on Petitioner's work hours. She asserted that the "Yvonne Hicks" signatures, on both the Documentation of Experience form, as well as the letter of reference, are hers. Before explaining why she now recants her (sworn) statements to Investigator Zimmerman and the State Attorney's Office, Ms. Robertson buttressed Petitioner's description of the activities he performed in the "care, feeding, handling, and husbandry" of capuchin monkeys. Ms. Robertson echoed Petitioner's statement that owning capuchin monkeys is "life changing," in that they have no life outside of caring for their monkeys. Her animals require constant attention to feed, nurture, and safeguard. As to why she contacted the Commission to report a forgery, Ms. Robertson expressed that in April 2018, she and her sister suffered a severe personality clash. Ms. Robertson explained that "like all sisters do … we fought our whole life." That same month, she was asked to approve Petitioner's Documentation of Experience form, as well as provide a reference letter. Ms. Robertson testified that, due to her roiling resentment of her sister, this request came at a most inopportune time. To spite her sister, Ms. Robertson reached out to Investigator Zimmerman and issued her proclamation that she did not, and would not, sign off on Petitioner's Application. Ms. Robertson admitted that she specifically told Investigator Zimmerman that any signature on the Application bearing her name was a "forgery." Later, when confronted by the State Attorney, she perpetuated her story because she believed that the Commission might take her monkeys away if she retracted her allegations. At the final hearing, however, Ms. Robertson adamantly asserted that the "Yvonne Hicks" signature on Petitioner's paperwork "is mine." Ms. Robertson professed that, she willingly supported, and supports, Petitioner's effort to obtain a wildlife pet permit to keep Roxy. Towards that end, Ms. Robertson testified that she personally observed Petitioner care for her capuchin monkeys from October 2016 through February 2018. Ms. Robertson further professed that she reviewed, approved, and signed off on Petitioner's Documentation of Experience form on July 3, 2018. Ms. Robertson explained that, by that date, she had reconciled with her sister, and was ready and willing to substantiate Petitioner's Application. Ms. Robertson further elaborated that it was her sister who actually completed the entries on the Documentation of Experience form. Ms. Robertson stated that Ms. Hicks maintains a daily planner/calendar. Ms. Robertson relayed that the descriptions of the work that Petitioner performed with the capuchin monkeys came directly from Ms. Hick's written records. Ms. Robertson further insisted that she personally observed Petitioner's interaction with the monkeys, and that Ms. Hick's entries are accurate and true. Ms. Robertson expressed that Petitioner, Ms. Hicks, and she worked together with the monkeys every day during the time period covered by Petitioner's Application. At the file hearing, Ms. Robertson expressed her extreme regret at accusing her sister and Petitioner of fraud. She wishes that she had never made the "stupid mistake" of reporting a forgery. Ms. Robertson asserted that she now fully endorses Petitioner's Application "because it is the right thing to do. He did the hours, he deserves the license." Yvette Hicks testified on Petitioner's behalf. Ms. Hicks asserted that Petitioner is perfectly capable of tending to Roxy and the rest of her capuchin monkeys. Not only was Petitioner receptive, ready, and willing to look after her monkeys, but the monkeys took to him as well. Ms. Hicks confirmed that she was the person who actually logged Petitioner's experience onto the Documentation of Experience form. Ms. Hicks testified that she diligently and meticulously writes into a planner "everything that happens on every day." She also maintains the calendar for "Twins & Jungle Friends" shows. To record Petitioner's work hours, she referred to her daily notes, then transferred the activities and events to Petitioner's Application. In chronicling Petitioner's experience on the Documentation of Experience form, Ms. Hicks explained that she recorded that Petitioner worked "8" hours a day with the monkeys because she understood that eight was the maximum number of hours that the Commission would allow per entry.7 In reality, however, Ms. Hicks insisted that Petitioner spent "way more" than eight hours a day with the monkeys. She maintained that, because he lived with the sisters, Petitioner worked with the monkeys all day, every day. Ms. Hicks also commented on several of her specific entries on the Documentation of Experience form. She explained that the term "Served Meals" documented when Petitioner prepared one or both of the monkeys' meals for the day. The entry for "Insulin" referred to the times Petitioner provided the insulin shots to Roxy. (Ms. Hicks added that Petitioner is an extremely capable nurse and administered the shots on most days.) Finally, Ms. Hicks voiced that "Show" entries represented days when Petitioner assisted with the "Twins & Jungle Friends" performances. (Ms. Hicks expressed that Petitioner became an integral part in the sisters' production.) Regarding Ms. Robertson's allegation to the Commission in April 2018 that she did not sign off on Petitioner's Application, Ms. Hicks declared that Ms. Robertson's statements were "all a lie." Ms. Hicks affirmed Ms. Robertson's testimony that their relationship was "rocky." Ms. Hicks, however, firmly, maintained that the hours and descriptions she wrote on 7 The one exception to the "8" hours worked for each entry on the Documentation of Experience form was for October 27, 28, and, 29, 2017. For these dates, Ms. Hicks recorded that Petitioner "spent 3 days performing at the Ocala Pumpkin Festival with show monkeys," and that he worked "all day." Petitioner's Documentation of Experience form were true and accurate.8 Ms. Hicks also fervently declared that Ms. Robertson signed off on Petitioner's experience, and the two signatures of "Yvonne Hicks" in the Application are Ms. Robertson's. Ms. Hicks convincingly testified that Petitioner is "wonderful" with the capuchin monkeys. Further, she credibly represented that, based on her observations, Petitioner protected the monkeys' safety, enhanced their lives, and made them happy. Based on the competent substantial evidence presented at the final hearing, the greater weight of the facts establishes that Petitioner possesses significant experience in the "care, feeding, handling, and husbandry" of capuchin monkeys. The evidence further shows that Petitioner will provide humane and sanitary treatment to any monkeys (especially Roxy) entrusted to his care. In addition, the testimony does not support, by a preponderance of the evidence in the record, the allegations that either the "Yvonne Hicks" signatures or the descriptions of work performed in Petitioner's Application are false, forged, fraudulent, or misleading. However, the implication that Petitioner's Documentation of Experience form contains "inaccurate information" has merit. The Commission's witnesses persuasively expressed the Commission's concerns with the accuracy of the representation that Petitioner earned exactly "8" hours of experience on each and every day he worked, as well as the reliability of the work descriptions written on the form, and whether the work described actually took "8" hours to perform. Further, although Ms. Robertson testified with conviction that Petitioner achieved the required 1,000 hours of experience under her supervision, her credibility is materially 8 At the final hearing, during questioning by the Commission, Ms. Hicks did concede one "inadvertent error" in the 11-page Documentation of Experience form. The "Show" entry she recorded on November 23, 2017, had been rescheduled and actually occurred on November 25, 2017. damaged by the prior untruths she told to Investigator Zimmerman and the Highlands County State Attorney's Office.9 Consequently, Petitioner did not establish that his Application meets the requirements necessary under rule 68A-6.004 to qualify for a wildlife pet permit for a capuchin monkey. Therefore, Petitioner did not meet his ultimate burden of proving that the Commission should grant his Class III Personal Use Application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission deny Petitioner's Application for a Class III personal use permit to possess capuchin monkeys. DONE AND ENTERED this 25th day of January, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Peri E. Sedigh, Esquire Sedigh Law 2443 Grandview Avenue Sanford, Florida 32771 Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050
The Issue The issue in this case is whether Respondent committed the offenses set forth in the administrative complaint, and, in that event, what disciplinary action should be imposed with regard to Respondent's Alligator Farming Permit.
Findings Of Fact Respondent is Brian Busby. Since 1988, Respondent has been involved in the business of alligator farming pursuant to licensure afforded him by Petitioner. Petitioner is the Florida Game and Fresh Water Fish Commission. In addition to regulation of wildlife, Petitioner also regulates alligator farming. Petitioner's regulatory framework with regard to alligator farming is designed to protect wild alligator populations from being plundered to supplement or replace alligator farm inventories. On February 27, 1995, Respondent entered a no contest plea in the Circuit Court of Citrus County, Florida, to one felony count of illegally taking a wild alligator in violation of Section 372.663, Florida Statutes. As established by testimony received at the final hearing in this cause, Respondent's complicity in the killing of the wild alligator, which resulted in the felony charge against him, was substantial. He was observed by law enforcement officials to have actively participated in the unlawful killing of the alligator, specifically cutting the alligator's spine with a knife after helping to pull the harpooned alligator from a pond into a boat occupied by Respondent and two other individuals. Later, on March 3, 1995, and as the result of unrelated charges, Respondent entered no contest pleas in the County Court of Citrus County, Florida, to misdemeanor offenses. Those charges involved alleged violations of Petitioner's rules, discovered during an inspection of Respondent's alligator farming facility by Petitioner's agents. The charges concerned Respondent's failure to maintain an accurate record of alligator inventory and failure to maintain sanitary conditions on the alligator farm. As established by Respondent's own admission at the final hearing, he failed to maintain accurate inventory records of the alligators in some enclosures at his alligator farm. Other testimony establishes that inventory discrepancies in individual pens and enclosures were numerous, and that the number of alligators in some instances exceeded tolerance levels permitted by Petitioner's administrative rules. Respondent's explanation at the final hearing for the admitted unsanitary conditions existing at his alligator farm at the time of inspection as being the total result of recent feeding of the alligators and prevailing wet weather conditions is not credited in view of the demeanor of the witness; the advance warning of the inspection provided him by Petitioner's representatives; and the issuance of previous warnings and "admonishment letters" to Petitioner with respect to conditions at his facility. In both the circuit and county court proceedings, adjudication of guilt was withheld upon entry of Respondent's pleas with penalties in the form of either fines, community service or jail time imposed. On April 4, 1995, Petitioner issued its Administrative Complaint, citing Respondent's charged criminal violations and no contest pleas. The Administrative Complaint also set forth Petitioner's reasoning and subsequent preliminary decision to revoke Petitioner's Alligator Farming Permit, Alligator Farming License, and Alligator Processing Facility Permit. Consistent with its rules, Petitioner reached its preliminary decision after consideration of Respondent's felony offense of illegal taking of an alligator, a serious crime made even more egregious when committed by one involved in regulated alligator farming; Respondent's lengthy history of experience in alligator farming and resultant knowledge of prohibitions against taking alligators in the wild; the hope that revocation of Respondent's license would send a message to other alligator farmers, conservationists and the public regarding Petitioner's lack of tolerance of such illegal acts; and the belief that Respondent's illegal action justified any negative consequences to Respondent's livelihood resulting from license revocation. Petitioner's decision to revoke Respondent's license also included secondary considerations that a rifle was involved in the incident and was fired on open water by one of the three individuals in the boat; that prior warnings were issued to Respondent by Petitioner's representatives for Respondent's possession of an untagged alligator carcass and alligator heads; and that prior warnings had been issued to Respondent for failure to maintain accurate alligator farm inventory records and proper population levels to prevent overcrowding of captive alligators. Respondent had not, prior to the criminal offenses upon which this proceeding is based, been charged with a criminal offense in the State of Florida. A previous conviction of a wildlife offense in the State of Michigan occurred approximately 20 years ago. By request dated April 24, Respondent sought and was granted entry by Petitioner to administrative proceedings for the purpose of disputing material factual allegations of the Administrative Complaint. Upon submission by Respondent of an executed application form, indicating no history of criminal convictions, and an application fee to Petitioner, Respondent was issued an Alligator Farming License by Petitioner bearing an approval date of July 7, 1995, subject to expiration 12 months from the date of issuance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered revoking Respondent's Alligator Farming Permit, Alligator Farming License, and Alligator Processing Facility Permit. DONE and ENTERED in Tallahassee, Florida, this 21st day of November, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-5. Adopted in substance, not verbatim. 6.-9. Rejected, subordinate to HO findings and cumulative. 10.-15. Adopted in substance, not verbatim. Respondent's Proposed Findings 1.-8. Adopted in substance, not verbatim. 9. Rejected, not materially dispositive. 10.-15. Rejected, subordinate to HO findings. 16. Adopted by reference. 17.-18. Rejected, subordinate to HO findings. 19. Rejected, not supported by the weight of the evidence, subordinate. 20.-21. Rejected, relevance. 22.-23. Rejected, credibility, weight of the evidence. COPIES FURNISHED: James T. Knight, III, Esquire Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, FL 32399-1600 Fred Ohlinger, Esquire 107 South Pine Avenue Inverness, FL 34452 Allan L. Egbert, Ph.D Executive Director Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, FL 32399-1600 James Antista, Esquire Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, FL 32399-1600
Conclusions The Florida Fish and Wildlife Conservation Commission (“FWC” or ‘““Commission’) hereby enters the following Final Order. ISSUE AND SUMMARY The Commission issued a permit to Chris Johnson to conduct leatherback turtle research through the Loggerhead Marinelife Center, Inc. (hereinafter “LMC’”) in 2001 and has continuously reissued this permit. However, Chris Johnson’s employment with LMC was recently terminated. On January 22, 2014, the Commission issued Marine Turtle Permit #14-157A to Chris Johnson, Filed October 2, 2014 3:57 PM Division of Administrative Hearings authorizing him to conduct leatherback turtle research on Palm Beach County beaches, effective January 1, 2014. On December 20, 2013, the Commission issued a permit to Sarah Hirsch, Data Manager for LMC, to conduct marine turtle research on Palm Beach County beaches, effective January 1, 2014. On May 27, 2014, the Commission issued Marine Turtle Permit #14-211 to Dr. Charles Manire, who works for LCM, to conduct a subset of the same activities that Chris Johnson’s permit authorizes Chris Johnson to perform with leatherback turtles. On February 12, 2014, LMC filed a Request for Enlargement of Time to File Petition. On February 28, 2014, LMC filed a Petition for a Formal Administrative Hearing, and on April 25, 2014, LMC filed an Amended Petition for Formal Administrative Proceeding (hereinafter “LMC Petition”), challenging the issuance of Marine Turtle Permit #14-157A to Chris Johnson. The LMC Petition states that the activities Chris Johnson proposes to conduct under his permit are not in the public interest as his activities would interfere with the research LMC conducts under contract with Palm Beach County, and would duplicate research that LMC employees have conducted for more than 20 years on the same beaches. The LMC Petition states that Chris Johnson has demonstrated no need for his research. The LMC Petition disputes that Chris Johnson has the necessary permits or concurrence from the appropriate park management units to conduct the research and claims that Chris Johnson submitted materially false information in his application for a permit. The LMC Petition states that following his termination by LMC, Chris Johnson misappropriated LMC’s leatherback sea turtle data set to start his own organization, and that Section 379.2431, Florida Statutes, Chapter 68E-1, and Rule 68-1.010, Florida Administrative Code, require denial of the permit. LMC has filed a separate civil action against Chris Johnson alleging, among other things, the misappropriation of turtle data from LMC. The Commission transferred the case to the Florida Division of Administrative Hearings (DOAH) on April 17, 2014, which was assigned DOAH Case No. 14-001651. The permittee, Chris Johnson, filed a Motion to Intervene in the case on April 29, 2014, and was granted party status on April 30, 2014. On June 3, 2014, Chris Johnson filed a Petition for Formal Administrative Proceeding (hereinafter “Johnson Petition’’) challenging the issuance of Marine Turtle Permit #14-211 to Dr. Manire at LMC, The Johnson Petition primarily states that the application for this permit was an attempt to keep Chris Johnson from being able to conduct his research, that Dr. Manire’s permit interferes with Chris Johnson’s permit, that Dr. Manire does not have the requisite knowledge and skill to conduct the permitted activities, that the public’s interest is best served by having Chris Johnson conduct the research and that Section 379.2431, Florida Statutes, and Rules 68E- 1002(2), 68E-1.004(6) and (17), and Rule 68-1.010, Florida Administrative Code, require denial of the permit. On June 12, 2014, the permittees, Dr. Charles Manire and LMC, filed a Petition to Intervene, and were granted party status on June 19, 2014. This case was transferred to DOAH and assigned DOAH Case No. 14-002806. On June 23, 2014, this case was consolidated with LMC v. Chris Johnson and FWC, DOAH Case No. 14-001651, which was pending before DOAH. On July 22, 2014, Christopher Johnson filed a motion seeking sanctions, including attorney’s fees, On September 8, 2014, LMC, stating that the administrative action is negatively impacting LMC’s civil action and the turtle nesting season has passed, voluntarily dismissed its petition without prejudice, thereby withdrawing its challenge to the issuance of the permit to Chris Johnson. On September 8, 2014, Dr. Manire withdrew his application for a permit. As the substantive issues in the case were rendered moot by LMC’s dismissal of its petition and Dr. Manire’s withdrawal of his application, on September 11, 2014, DOAH relinquished jurisdiction over the permitting issues back to the Commission. However, DOAH retained jurisdiction over the issue of attorney’s fees. WHEREFORE, as LMC has voluntarily dismissed its Petition, thereby withdrawing its challenge to the issuance of Marine Turtle Permit #14-157 to Chris Johnson, the permit is hereby GRANTED. As LMC and Dr. Charles Manire have voluntarily withdrawn their application for the permit, the issuance of Marine Turtle Permit #14-211 to Dr. Charles Manire at LMC is hereby DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida this 30 day of September, 2014. t= Eric Sutton Assistant Executive Director Florida Fish and Wildlife Conservation Commission Filed with The Agency Clerk MULL, This 2 day of-September, 2014 LIFE Oe Sbtobe 7 enrol ATTEST: yy % ono Agency Clerk Cyriteeesanst CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above FINAL ORDER has been furnished by U.S. Mail to Rachael M. Bruce, 515 N. Flagler Dr Ste 1500, West Palm Beach, FL 33401-4327; Alfred Malefatto, Lewis Longman and Walker, P.A., 515 N. Flagler Dr Ste 1500, West Palm Beach, FL 33401-4327; Edwin A. Steinmeyer, Lewis Longman & Walker, 315 S. Calhoun St Ste 830, Tallahassee, FL 32301-1872; Frank Rainer, Broad and Cassel, PO Box 11300, Tallahassee, FL 32302-3300; and David ge Broad and Cassel, 2 S Biscayne Blvd Ste 21, Miami, FL 33131-1800, on this day “ane Copies furnished to: Ryan Smith Osborne (via email) Florida Fish and Wildlife Conservation Commission Legal Office 620 South Meridian St. Tallahassee, FL. 32399 Michael Yaun (via email) Florida Fish and Wildlife Conservation Commission Legal Office 620 South Meridian St. Tallahassee, FL. 32399 Florida Bar No. 956953 Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (850) 487-1764 NOTICE OF APPELLATE RIGHTS The foregoing constitutes final agency action in this matter. Any party adversely affected has the right to seek judicial review of this Final Order pursuant to section 120.68 Florida Statutes, and rule 9.030(b)(1)(c) and 9.110, Florida Rules of Appellate Procedure. To initiate an appeal, a Notice of Appeal must be filed with the Florida Fish and Wildlife Conservation Commission, Office of the General Counsel, and the appropriate District Court of Appeal within thirty (30) days of the date of that this Final Order is filed with the Agency Clerk. The Notice filed with the District Court of Appeal must be accompanied by the appropriate filing fee required by law.
The Issue Whether a sign which has been standing without a current permit as required by Section 479.07(4), Florida Statutes, is eligible for a current permit upon payment of the delinquent fees.
Findings Of Fact The following described signs owned by Respondent have no currant permit tags: Highway - U.S. 1 Location: 7.1 miles north of State Road 100 Copy - "Shrine" Highway - A1A Location - 6.2 miles north of Florida 100 Copy - "Old Jail" Highway - A1A Location - 6.3 miles north of Florida 100 Copy - "Eddie's" or "Eddy's" Highway - A1A Location - 13.3 miles north of Florida 100 Copy - "Ocean Groves" Highway - A1A Location - 13.7 miles north of Florida 100 Copy - "Old Jail" Highway - A1A Location - 13.8 miles north of Florida 100 Copy - "Alligator Farm" Highway - U.S. 1 Location - 22.20 miles north of State Road 100 Copy - "Casa Marina" The subject signs are owned and were erected by the Respondent and there were no fees paid under the requirements of Chapter 479, Florida Statutes, insofar as paying fees and obtaining current permits.
The Issue Did Respondent, Florida Fish and Wildlife Conservation Commission (Commission) correctly deny the application of Petitioner, James Hammonds, to renew his Game Farm License (Case No. 19-6307)? Did the Commission correctly deny Mr. Hammonds' application to renew his License to Possess Class III Wildlife for Exhibition or Public Sale (Case No. 19-6326)?
Findings Of Fact The Parties Article IV, Section 9 of the Florida Constitution creates the Commission. It charges the Commission to "exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, and … exercise regulatory and executive powers of the state with respect to marine life, … ." Chapter 379, Florida Statutes (2019), implements the constitutional provision and did so in 2017. Mr. Hammonds owns and operates The Monkey Whisperer in Parrish, Florida. He breeds and sells exotic animals. Mr. Hammonds holds five separate licenses authorizing him to own, breed, sell, and transport wild life. They are a Class III license5 (with a Capuchin Monkey and Spider Monkey endorsement) that authorizes him to exhibit and sell wildlife, a game farm license, a deer herd management license, a United States Department of Agriculture (USDA) transport license, and a USDA license to trade in wildlife animals. The renewal of his Game Farm License and License for Exhibition and Public Sale of Wildlife are the subject of this matter. The Commission refused to renew both. Mr. Hammonds has held these two licenses since 2012. Since obtaining his licenses, Mr. Hammonds has passed all Commission inspections. In addition, the Commission has issued him a game farm license. The 2012 Conviction In 2012 Mr. Hammonds pleaded no contest to a charge of unlawfully selling wildlife to an unpermitted entity. The offense was sale of a marmoset at a flea market to an unlicensed purchaser. The record does not provide a citation to the statute violated. Mr. Hammonds was new to the exotic animal trade. He relied upon statements by the purchaser and a Commission representative that the Commission had issued the purchaser a license and that it was en route. The court adjudicated Mr. Hammonds guilty and ordered him to pay a fine and costs totaling $450.00. It also required Mr. Hammonds to pay an additional $50.00 for costs of prosecution. Mr. Hammonds paid the fine and 5 Section 379.3762(2), Florida Statutes (2019), creates three classifications of wildlife types. Class I is wildlife that because of its nature, habit, or status may not be possessed as a pet. Class II is wildlife presenting a real or potential threat to human safety. Class III is all wildlife not included in Classes I and II. costs. Aware of this conviction, the Commission nonetheless routinely approved Mr. Hammonds' license renewal applications and approved his application for a game farm license over the next six years. There is no evidence of or charge of any other violations by Mr. Hammonds until the charges involved in these cases. The Capuchin Monkey In October 2017, Mr. Hammonds sold a Capuchin monkey to Christina Brown. He verified her identity and Nevada residency by looking at her Nevada driver's license. Nevada does not require a license to own exotic animals, including Capuchin monkeys. The Commission did not prove that Ms. Brown did not hold a Florida permit to own wildlife.6 Mr. Hammonds had a few conversations with Ms. Brown and her assistant Manny Ortiz about the sale. On October 12, 2017, Mr. Hammonds completed the required USDA form, "Record of Acquisition, Disposition or Transport of Animals," for the Capuchin sale.7 Mr. Hammonds was advised that Jennifer and Michael Brister would pick up the monkey to transport it to Nevada. The Bristers are located in 6 Lack of proof is the hallmark of this case. The Commission relied solely upon the testimony of one witness. The testimony was almost entirely hearsay or descriptions of document contents. This is despite the Commission, according to its witness, having recordings, sworn statements, telephone records, and financial records to support its allegations. The Commission did not offer these into evidence. Hearsay alone cannot be the basis for a finding of fact unless it would be admissible over objection in a circuit court trial. § 120.57(1)(c), Fla. Stat. (2019). Document descriptions are subject to memory failings, incompleteness, inaccuracies, and other factors that make them less than persuasive. See § 90.952, Fla. Stat.; See Williams v. State, 386 So. 2d 538, 540 (Fla. 1980). 7 The form does not have a field calling for the buyer's telephone number, or any telephone number for that matter. This is noted because the Commission's witness and Notices emphasize, as proof of guilt, an unsupported claim that Mr. Hammonds put his telephone number on the form where the buyer's telephone number went. The unsupported testimony and insistence on its significance is one of the reasons that the witness' testimony is given little credence or weight. Also Mr. O'Horo testified that the form showed a Virginia address for Ms. Brown. It shows a Nevada address. Tennessee. The Bristers held a USDA Class T Carrier permit issued under the federal Animal Welfare Act. Mr. Hammonds obtained proof that the Bristers held this federal permit required for interstate transport of the monkey. He went so far as to obtain a copy of their USDA certification to provide this service. Mr. Hammonds was also aware that the Bristers frequently did business in Florida. Other breeders recommended them highly. The Commission did not prove that the Bristers did not hold a Florida permit to own wildlife. The Bristers picked up the monkey, on behalf of Ms. Brown, from Mr. Hammonds in Florida. Other than to receive a telephone call reporting that the monkey had been delivered, Mr. Hammonds had no further contact with or communications about the monkey or Ms. Brown until the Commission's investigator contacted him. There is no admissible, credible, persuasive evidence about what happened to the monkey from this point forward. The Commission offered only uncorroborated hearsay testimony from Mr. O'Horo on this subject. The Rhesus Macaque Monkey Mr. Hammonds also assists people in rescues of exotic animals whose owners have realized they cannot care for them. In 2017, Mr. Hammonds facilitated the transfer of a Rhesus Macaque monkey from one individual to another. A Macaque monkey is a Class II animal. The monkey owner came to Mr. Hammonds' business seeking assistance because he could not handle the monkey. The monkey was in a pet carrier. Mr. Hammonds recalled a woman in Orlando who had contacted him in the past seeking a Macaque. He put the two individuals in touch with each other. The two individuals agreed to the exchange of the monkey. The woman came the same day, met the Macaque owner, and accepted the monkey from him. The owner kept the monkey with him in the carrier until he gave it to the woman. Mr. Hammonds was paid for his services in facilitating the exchange. There is no competent, persuasive evidence that Mr. Hammonds ever had ownership, physical possession, control, or custody of the Macaque monkey in any form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Fish and Wildlife Conservation Commission, issue a final order renewing the Game Farm License and the License to Possess Class III Wildlife for Exhibition or Public Sale of Petitioner, James Hammonds. DONE AND ENTERED this 23rd day of June, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2020. COPIES FURNISHED: Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) David A. Fernandez, Esquire Florida Trial Counsel 4705 26th Street West, Suite A Bradenton, Florida 34207 (eServed) Sean P. Flynn, Esquire Flynn Law, P.A. 2200 Manatee Avenue West Bradenton, Florida 34025 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The issues to be determined in this case are whether Petitioner, Sherrie Wentworth (Petitioner), is entitled to approval of her applications to renew her Wildlife Rehabilitation Permit, and her License to Possess Class III Wildlife for Exhibition or Public Sale.
Findings Of Fact The following Findings of Fact are taken from the parties' joint pre-hearing stipulation, and the direct evidence adduced at the hearing. Stipulated Facts Petitioner pled no contest and had adjudication withheld on the following seven captive wildlife violations on April 28, 2015: Possession of Class I Wildlife (a tiger) without a required permit (a violation of section 379.3761, Florida Statutes). Failure to have a required permit for the importation of non-native species of wildlife (a tiger) (a violation of section 379.231(1)). Failure to possess the required financial responsibility for Class I Wildlife (a tiger) (a violation of Florida Administrative Code Rule 68A-6.0024(3)). Maintaining Class I Wildlife (a tiger) on less than five acres (a violation of rule 68A-6.003(2)(c)2.a.). Personal possession of Class II Wildlife (a coyote) without a required permit (a violation of section 379.3762). Unsafe housing of Class II Wildlife (a coyote) (a violation of rule 68A-6.0023(2)). Not having caging of proper size for Class II Wildlife (a coyote) (a violation of rule 68A-6.003(2)(c)4.b.). Two warnings were issued by Respondent to Petitioner on September 20, 2017, for the following two captive wildlife violations: Failure to keep complete accurate records of squirrels entering the facility (a violation of Florida Administrative Code Rule 68A-9.006(4)(b)). Failure to maintain a daily log of animals entering the rehabilitation facility (specifically to log a hawk taken in on September 14, 2017) (a violation of rule 68A-9.006(5)(e)). No additional adjudications or violations were entered against Petitioner between April 29, 2015, and September 19, 2017, that served as a basis for the denial at issue. There were no errors or omissions in the renewal applications at issue and there have been no previous errors or omissions in previous applications submitted by Petitioner that serve as a basis for the denial at issue. There have been no material changes to the criteria used to evaluate the issuance of the two licenses at issue since 2015. Petitioner admits that squirrels were not properly logged into Petitioner's records at the time of the September 20, 2017, warning violations. March 2015 In March 2015, then Captive Wildlife Investigator Steven Grigg responded to an anonymous complaint about a tiger at East Coast. See Resp. Ex. 4. Investigator Grigg testified that prior to that time Petitioner had expressed interest in getting a tiger, and he advised her regarding the necessary steps to obtain a Class I Wildlife permit that would allow her to possess a tiger. He was aware that the Class I Wildlife permit was denied in July 2014. Petitioner acquired the tiger while the Class I Wildlife permit application was pending, and she continued to possess the tiger for several months after being denied. At first, Petitioner denied having a tiger on the premises. The tiger was an approximately 200-pound female for which, in March 2015, Petitioner neither had the Class I Wildlife permit, nor did she have financial responsibility coverage and five acres for exclusive use. In addition, the non-native tiger was imported from outside the state without the necessary importation permit. Investigator Grigg issued Petitioner four separate citations related to unlawful possession of the tiger. See Stipulated Fact No. 1. Possession of a tiger without the necessary license and financial responsibility is a serious safety concern, both for the safety of the public and the person in possession of the animal. Possession of a tiger without having five acres of land on which no other use is taking place is necessary to ensure a buffer between the tiger and the public. East Coast sits on 2.5 acres, and Petitioner leased an adjacent 2.5 acres. See Pet. Ex. 2. Petitioner testified that she thought she had the necessary five acres for possession of the tiger. However, an examination of the lease for the adjacent property shows that there was a home with a couple residing there. Possession of a non-native tiger without the necessary import permit is a potential danger to native species of wildlife. Species outside of Florida may carry diseases not present in Florida wildlife. Bringing these species into the state without the necessary precautions associated with proper permits places native wildlife at risk. In addition, Petitioner kept the tiger at East Coast where injured and sick wildlife were also present. During the investigation of Petitioner's facility in March 2015, Investigator Grigg also discovered that she was keeping a coyote as a pet without a proper permit. Investigator Grigg cited Petitioner for keeping a Class II animal without the proper permit, and for housing the coyote in a cage that was neither the correct size nor the minimum necessary strength. See Stipulated Fact No. 1. A coyote is a Class II animal——the second most dangerous type of animal in Florida. Possession of a coyote without the necessary permit is a serious safety concern for the public. Petitioner's housing of the coyote in caging that was not as strong as the law requires also posed a danger to the public. Also during the March 2015 visit, Investigator Grigg discovered that Petitioner was keeping a red fox——a Class III animal——as a pet without a permit. Investigator Grigg issued a warning to Petitioner although he could have issued her a citation. He also issued Petitioner a warning for housing the fox in caging that was less than the minimum size required. Petitioner testified that she applied to Respondent and was granted a variance for the size of the cage for the red fox. September 2017 On September 20, 2017, Captive Wildlife Investigator J. Scott Wilkenson conducted an unannounced compliance inspection of Petitioner's facility. See Resp. Ex. 7. Petitioner had not entered approximately 60 squirrels into the facility logs as required by her Wildlife Rehabilitation Permit. That permit stated "[c]omplete, accurate written records shall be kept by the permittee . . . ." and "[a]ll permittees shall keep a log on each animal entering the facility for treatment . . . ." Petitioner testified that she entered the squirrels into a daily log, but she did not show proof of such a log to Investigator Wilkenson at the time of the inspection. Volunteer Donna Bloom testified that neither written nor electronic logs were provided to Investigator Wilkenson at the time of the inspection. Investigator Wilkenson issued a warning to Petitioner for the failure to enter the 60 squirrels into her facility logs as required by the law and her permit. At the September 2017 inspection, Investigator Wilkenson also noted that Petitioner did not enter record of a hawk into a daily log as required by Petitioner's Wildlife Rehabilitation Permit in effect at the time. The Wildlife Rehabilitation Permit stated that "[a]ll permittees shall keep a log on each animal entering the facility for treatment. The log shall include a record of the animals' treatment, condition, and disposition." Petitioner offered into evidence a record that purported to be the daily log reflecting the intake of the hawk. See Pet. Ex. 12. Investigator Wilkenson testified that he initially requested these documents but that they were not immediately available at the facility during his on-site inspection. Investigator Wilkenson issued Petitioner a warning for the failure to enter the hawk into a daily log as required by her permit. Petitioner and her recordkeeper, Ms. Bloom, admitted that the manual daily logs were not on-site during the September 20, 2017, inspection because Ms. Bloom took them home to enter into the computer. She testified that Hurricane Irma had impacted electricity at the facility and delayed entry of the manual daily logs into the computer. The Wildlife Rehabilitation Permit recordkeeping requirements are necessary to ensure permittee accountability. Records quickly show investigators what animals are on the permittee's property and their condition. Accurate records ensure that Respondent is able to carry out its constitutional responsibility regarding the care of wildlife for protection of both the public and the animals. Other Aggravating Evidence Investigator Grigg testified that over the years he repeatedly advised and warned Petitioner that it was necessary to follow the captive wildlife laws, including maintaining complete and accurate records. Investigator Grigg's interactions with Petitioner showed him that she would intentionally and with knowledge violate the captive wildlife laws for as long as she could before getting caught. Her actions left him concerned that she is not willing to comply with the captive wildlife laws. In addition, Petitioner has expressed to him that she does not have time to follow the rules and that Respondent's legal requirements impede her ability to care for the animals. Both Investigators Grigg and Wilkenson testified that Petitioner should reduce the number of species she intakes at the facility. Mitigating Evidence Petitioner testified that she opened East Coast in approximately January 2012, giving up her prior profession as a licensed pilot and investing approximately $100,000. Petitioner testified that her facility is the only rehabilitation center open 24 hours a day, seven days a week and year-round for injured animal intake. She testified that she takes animals that other centers will not and will travel from the center in Volusia County to Flagler County to pick up injured animals. She believes her operations provide a needed benefit to the community in Volusia and Flagler Counties. Ms. Lundell testified that the Chase Academy has 52 autistic children. The Academy partners with East Coast in an educational program for the students. Petitioner brings in the animals and educates the students about caring for and handling injured wildlife and wildlife in general. Petitioner testified that in September 2017, there was power loss and damage at East Coast caused by Hurricane Irma. Despite the situation, she testified that East Coast was the only rehabilitation center open and taking calls to pick up injured animals. She testified that she logged animals manually using paper forms, but on the date of Respondent's inspection, the paper forms were in the possession of Ms. Bloom, who was transferring the forms to Petitioner's electronic records system at home where there was power. However, Petitioner was unable to produce the paper forms at the time of Investigator Wilkenson's inspection or at any time thereafter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's applications for renewal of her Wildlife Rehabilitation Permit and License to Possess Class III Wildlife for Exhibition or Public Sale. DONE AND ENTERED this 13th day of June, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 13th day of June, 2018. COPIES FURNISHED: Christopher Block, Esquire Block Law Firm, PLLC Post Office Box 560618 Rockledge, Florida 32956 (eServed) Sherrie Wentworth 2090 Halifax Drive Port Orange, Florida 32128 Tracey Scott Hartman, Esquire Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Brandy Elaine Elliott, Esquire Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. "Bud" Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue Whether the Buntins and the Stovalls should receive an after-the-fact coastal construction control line (CCCL) permit to allow a sand-filled HESCO Basket System constructed in the aftermath of Hurricane Dennis in 2005 and that is now primarily a vegetated dune to remain as a permanent structure in Walton County?
Findings Of Fact Sea Turtle Nesting Habitat on a Hurricane-battered Coast Along the northernmost reaches of the Gulf of Mexico, roughly in the center of the Florida Panhandle coast, the beaches and shores of Walton County have been subject to the many vicissitudes of coastal climate over the years. So have marine turtles, several species of which have relied through the ages on Florida beaches and shores, including those in Walton County for nesting habitat. Survivors of shifting circumstances brought by weather, sea turtles are now imperiled by exposure to man-made dangers. Anthropogenic turtle hazards on populated beaches are numerous and, without educational efforts of the Department and the Commission, not likely to be recognized by beach-goers interested in the enjoyment of surf and sun. Folding beach chairs and canopies, board walks designed to protect the dune system, and other seemingly-harmless by- products of human beach activity, even holes dug by children building sand castles, can contribute to sea turtle injury and cause sea turtle fatality. While sea turtles in recent times have made their way across the Walton County beach toward their nests through obstacles set up by human beings and hatchlings have scurried toward the sea through these same impediments, owners of beachfront property have had to contend with powerful tropical storms, particularly in the relatively recent past. Especially damaging to property along the Walton County Coastline have been three hurricanes that hit in the span of a decade: Opal in 1995, Ivan in 2004 and Dennis in 2005. The intense storm surge of Hurricane Opal destroyed much of the dune system along the stretch of Seagrove Beach in Walton County that is the subject of the aerial photography introduced into evidence in this case. Ivan, which made landfall just west of Gulf Shores, Alabama, as a Category 3 Hurricane on September 16, 2004, caused heavy damage to the Walton County coastline and areas west. Of the three, though, the damage done by Dennis is the sine qua non of this proceeding brought by Petitioners to preserve and protect their property. The Stovall and Buntin Property When Hurricane Dennis hit, the Stovalls had owned the property located at 711 Eastern Lake Road, Santa Rosa Beach, Walton County, for some time. Purchased by both Mr. and Mrs. Stovall and in both their names at the time the petition was filed, by the time of hearing, the property had been transferred into Mrs. Stovall's name only. The Stovalls bought the lot around 1997 give or take a year. "[T]he house itself is about 11 years old," tr. 17, built in 1998 or thereabouts. Seaward of the CCCL established on December 29, 1982, construction of the house required a CCCL permit from the Department. In the words of Mr. Stovall, the permitting process required "hundreds of hoops to jump through." Tr. 18. The lot had been in foreclosure and the permit was obtained through the services of a reputable architectural firm. The house, therefore, was designed and constructed to survive a major hurricane, a requirement of the permit. The house was built on pilings sturdy enough to support the house in the event of a major hurricane. High enough to allow the bottom floor of the house to be above storm surge, the pilings' height and house elevation also allowed ample parking for vehicles beneath the house. At the time the Stovall house was built, despite the damage done by Opal, there remained a good natural dune system seaward of the house, one that was "beautiful . . . wonderful," tr. 19, in the words of Mr. Stovall. After the house was constructed, Mrs. Stovall took particular pleasure in the dune system and worked to preserve and cultivate sea oats in its support. She also was thrilled by the presence of two turtle nests not long after the purchase of the lot, one nest found in 1998 and the other discovered on July 22, 1999. After the discoveries, Sharon Maxwell, the County- authorized "local turtle coordinator," tr. 295, and "the only person in the County permitted to touch . . . turtles," tr. 296 was contacted. Ms. Maxwell measured the nests from points related to the Stovall house. They were at least 20 feet seaward of the toe of the most seaward dune. Because the nests were on a busy stretch of the beach, protective measures were implemented. Among the protective measures were actions by Mrs. Stovall. In addition to working with the local turtle coordinator, Mrs. Stovall became involved in circulation of information to neighbors about sea turtle conservation. She was part of an effort to encourage the information to be placed in rental units in the neighborhood. The information recommended turning out lights on the beach that interfered with turtle nesting, "brought out the importance of a single . . . beach chair [that] can misdirect and kill over hundreds of endangered hatchlings . . . [and] umbrellas . . . left overnight [that] can interfere with nesting." Tr. 293. She called local government commissioners and attended commission meetings where she advocated beach removal of items hazardous to sea turtles, their nests and their offspring. Her efforts have extended off-shore as well. As a scuba diver, she learned how to respect sea turtles and their marine habitat and "encouraged others to stay away and not harass the turtles, which many divers do." Tr. 195. The Buntin property, located at 701 Eastern Lake Drive, is adjacent to the Stovall property on the east side. Owned by the Buntins since 1990, the house on the lot was built in 1991 or early 1992. Like the Stovall house, the Buntin house is seaward of the CCCL and built to withstand the forces of major tropical storms. The Buntins, similar to the Stovalls, care about the beaches and shores of Walton County and particularly the beach adjacent to their property. Their intent with regard to the coastal environment is to protect it. There have been times over the past two decades when the Buntins greatly enjoyed their property. Their relationship to it, however, has changed. As Mr. Buntin put it at hearing, "[I]t's a situation we put ourselves in [but] I wish we didn't have any beach property. And I imagine there's a lot of other folks that wish that, too,. . ." Tr. 54. A major factor in Mr. Buntin's change-of-attitude is damage done by Hurricane Dennis. Hurricane Dennis Hurricane Dennis made landfall near Navarre Beach not far west of the Stovall and Buntin Properties on July 10, 2005, having struck the tip of peninsular Florida the day before. Classified according to the Saffir-Simpson Scale as a Category 4 Hurricane at moments in its journey through the Caribbean and the Gulf of Mexico, it came ashore in the northern Gulf as a Category 3 hurricane. Some of the worst damage it caused was along the panhandle coast. One of its damaging effects was enormous erosion of the beaches and shores along the coastline where the Stovall and Buntin property is located. That stretch of beach remains classified as a "critically eroding beach." After the storm, there was nothing left of the dunes seaward of the Stovall and Buntin houses. The Stovall house, itself, was not structurally damaged; there was not "a crack in the Sheetrock. The house stood solid." Tr. 30. It had lost its bottom deck and the deck on its western side but true to the CCCL permitting criteria, the house, perched on pilings about the storm surge, had also withstood the Category 3 force winds of the hurricane. Dennis had caused more damage to the property, however, than just the loss of a few decks. It had eroded the beach as far up as landward of the Stovall's house. At hearing, Mr. Stovall described his first view of the property post-Dennis: [T]he water was lapping back . . . behind the house. And if anybody walked up to where it was, it would just cave in. I fully believed that if that storm would've gone on another two hours, it would have been in the man's house behind me[.] . . . [W]e had no access to the front door and one of the neighbors down the street brought in a ladder . . . It would have taken a 20 or 21-foot ladder to have gotten up to [the] first deck level . . . . Tr. 25. Without a ladder, the house was not accessible. Most pertinent to the Stovall's persistence in bringing this proceeding, there was nowhere to park their vehicles. The parking area under the house had been scoured out. The Buntin property likewise suffered the impact of the hurricane's scour. Mr. Buntin was contacted by a neighbor and told that the scouring under his house was so bad that the air-conditioners midway between the seaward and landward sides of the house were "hanging over a 20-foot drop-off." Tr. 45. Mr. Buntin did not give the report much credibility at first but, to his dismay, found it true when he visited the property shortly after the storm. Just as in the case of the Stovall property, a car could not be parked under the house in the space that had served as the parking area prior to Dennis. Half of a car could be parked under the house but the rest of the sand- based parking area was gone. In its place was a steep embankment that "dropped off 20 feet." Tr. 46. A Serious Parking Problem Eastern Lake Road runs roughly east-west just north of the Stovall and Buntin properties. The roadbed lies in a roadway and utility easement. Because of the easement, property owners along the roadway are not allowed to use it for permanent parking. The restriction includes the entire right-of-way that extends beyond the roadbed. As a combination of the easement and the parking restriction, under-story parking is the only permanent parking place that can serve the properties. Aware that their properties were seaward of the CCCL, the Stovalls and Buntins sought guidance as to how to re- establish parking for their beach front property. They turned both to local government and to DEP. DEP's Emergency Order On the same day that Hurricane Dennis hit South Florida (the day before it made landfall on the panhandle coast), the Department issued an Emergency Final Order (the "Emergency Final Order." Styled, In re: EMERGENCY AUTHORIZATION FOR REPAIRS, REPLACEMENT, RESTORATION AND CERTAIN OTHER MEASURES MADE NECESSARY BY HURRICANE DENNIS and dated July 9, 2005, the Emergency Final Order followed a declaration by Governor Jeb Bush of a state-wide emergency. By State of Florida Executive Order No. 05- 139, the Governor declared that a state of emergency exists throughout the State of Florida, based upon the serious threat to the public health, safety and welfare posed by the Hurricane. Department Exhibit 9, paragraph 2., at 1. The Department's Emergency Order, therefore, had state-wide application and applied to Walton County even though Dennis had not yet come ashore onto the panhandle coast. The Final Emergency Order made the following findings: The Department finds that the Hurricane has created a state of emergency threatening the public health, safety, welfare and property throughout the Emergency Area. As a result of the emergency, immediate action by Florida's citizens and government is necessary to repair, replace, and restore structures, equipment, surface water management systems, works, and operations damaged by the Hurricane. The Department finds that an emergency authorization is required to address the need for immediate action because the normal procedures for obtaining the necessary authorizations would not result in sufficiently timely action to address the emergency. The Department finds that immediate, strict compliance with the provisions of the statutes, rules, or orders noted within this Order would prevent, hinder, or delay necessary action in coping with the emergency, and that the actions authorized under this order are narrowly tailored to address the immediate need for action and are procedurally fair under the circumstances. Department Exhibit 9, at 2. With regard to "Coastal Construction Control Line Activities," Section 3., of the order was clear. It did not "authorize the construction of structures that did not exist prior to the emergency . . . ." Id. at 17. The Final Emergency Order contained a provision, however, that may have related directly to the predicament of the Stovalls and the Buntins. Paragraph 3.b., entitled "Activities Requiring Local Authorization," opens with an introductory statement with regard to certain activities and then lists those activities as follows: Local governments are authorized to issue permits in lieu of Department permits to private and public property owners for the activities listed below. * * * (4) Return of sand to the beach dune system which has been deposited upland by the Hurricanes. Id. (emphasis added). The activity of returning sand to the beach dune system is subject to a section of the Final Emergency Order dedicated to "General Conditions." Id. at paragraph 4., pp. 20- In addition to the requirement that the activities "be performed using appropriate best management practices" id. at 20, in accord with the Florida Land Development Manual, the General Conditions section contained explicit provisions with regard to sea turtles: The nature, timing, and sequence of construction activities authorized under this Order shall be conducted in such a manner as to provide protection to, and so as to not disturb . . . listed species and their habitat, including threatened or endangered sea turtles If activities under C.3 of this Order occur during the marine turtle nesting season (March 1 through October 31 in Brevard and Broward County, May 1 in all other coastal counties), such activities must be coordinated with the Florida Fish and Wildlife Conservation Commission's Imperiled Species Management Section to ensure that all activities comply with state and federal requirements for the protection of seat turtles, their nests, hatchlings, and nesting habitat. Nothing in this order authorizes the taking, attempted taking, pursuing, harassing, capturing or killing of any species (or the nests or eggs of any species) listed under Rule 68A-27 of the Florida Administrative Code or under the Federal Endangered Species Act. Id. at 21-22. Under Section D., "GENERAL PROVISIONS," of the Emergency Final Order, the order cautioned, "[u]nder no circumstances shall anything contained in this Order be construed to authorize the repair, replacement, or reconstruction of any type of unauthorized or illegal structure, habitable or otherwise." Id. at 27, 28. The Emergency Final Order declared its effectiveness for 60 days following its execution on July 9, 2005, by the Secretary of the Department. Expressly set to expire on September 7, 2005, therefore, it promised in the meantime, "to act on requests for field authorizations in a timely and expeditious manner." Id. at 28. The Field Permit True to its word, the Department issued a field permit to Mr. Stovall on August 16, 2005. See Department Exhibit 10. The project is described in the field permit as repair and replacement of wooden decks and "repair/replace understructure concrete/brick paver parking area to original condition." Id. The repairs included electrical, plumbing and HVAC work and replenishment of approximately 1800 yards of sand for foundation pilings. The permit stressed, "[n]o other activity is authorized." Id. And, as part of its special conditions, the permit listed, "all construction shall comply with attached marine turtle conditions." Id. In the attempt to return the understory parking to its original condition, simply replacing sand did not work. "[I]t became pretty obvious to us as we put the sand in there," Mr. Stovall testified at hearing, "the sand was running out." Tr. 31. The Buntins were experiencing much of the same difficulties. Mr. Buntin compared the situation right after the hurricane to four years later at the hearing: There was so much confusion going on . . . we are so far after the fact now [August of 2009]. It's kind of hard to put yourself back in the position we were in at the time [summer of 2005] because there were an awful lot of questions and very few answers. You would get referred . . . this is what the regulations say. Well, you read the regulation and it is left to interpretation . . . the written word is . . . wonderful, but if you've got three people reading it, it's kind of hard to figure out exactly what it means. Now [August of 2009], after the fact . . ., we [have] answers . . . we didn't have at the time. Tr. 51 (emphasis added). Mr. Buntin knew one thing for sure: placing sand under the house would not be enough, "you've got to have some way to keep it underneath . . . because you're going to have to build a parking pad on top of it." Tr. 47. Neither an expert in CCCL regulations nor a coastal engineer, Mr. Buntin had no doubt "[y]ou can't just pile up sand and park the car on sand." Tr. 48. Mr. Buntin knew that in a coastal environment the understory parking would require a base of sand and a means of retaining the sand base under the house. The answer to the quandary was presented by Mike Jones, a contractor hired initially by the Stovalls and eventually by the Buntins, too. Mr. Jones suggested a HESCO Basket System. The HESCO Basket System In the aftermath of the storm, it was difficult to get assistance from repair companies. Mr. Stovall described the difficulty at hearing: "That was a tough job because everybody along the beach had damage, too, and getting someone to even come out there and give you a bid on it was like pulling eye teeth." Tr. 30. Eventually, through his brother, Mr. Stovall learned about Michael Alan Jones ("Mike Jones"), a general contractor licensed in Georgia. Mr. Jones agreed to look at the property. At hearing, he recalled his initial assessment of the Stovall and Buntin repair jobs: [T]here was a crater below the residences. We had to use an extension ladder to gain access to the Stovall property and we had to use some unique engineering to be able to access Mr. Buntin's property. There was no place to park. I noted on the Stovall property that . . . a paver system . . . was used for his parking area and the end of Eastern Lake Road as well, and the majority of that system was either currently . . . in the ocean or was in various stages of disrepair. It was falling apart. It was sagging one foot, 18 inches in many areas. It appeared . . . unsafe. * * * Some of . . . the pressurized [water] lines had been broken. The drain lines that lead into the septic or the county sewer were broken . . . the same on both properties. The air conditioning units were hanging by the power cables [I'd guess] 15 to 20 feet in the air, which, of course, poses a serious threat to anybody that walks . . . underneath them when the cable . . . unhook[s] itself from whatever connector or breaks. I noted at Mr. Stovall's, the whole bottom level of his deck was missing. * * * Mr. Buntin's dune walkover and much of his deck were sagging and unsafe [with] pieces missing. There was no . . . foundation on which to place a vehicle or anything for that matter underneath . . . the houses. I also noted . . . several onlookers . . . were using the area underneath the Stovalls' and Buntins' houses to access the beach, which was, in my opinion, extremely unsafe . . . [because of] falling five pound bricks and air conditioners hanging and wood falling off the side of the house. Tr. 82-83. The "crater" under the houses was not just a parking problem. Before the necessary repairs could be started, the understory had to be shored up. In the meantime, efforts were made to keep "onlookers" from using the area under the houses but they were not completely successful. Every morning that Mr. Jones visited the site at the beginning of his efforts, there was evidence left behind by people under the house the night before. Mr. Jones was of the same opinion as the Stovalls and the Buntins. For replacement of sand to work, there had to be a system for retaining the sand under the house. For several weeks, he conducted research by traveling up and down the beach discussing the issue with other contractors. Ultimately, Mr. Jones reached the conclusion that "the least invasive, most efficient . . . , environmentally friendly" system was a HESCO Basket System. HESCO Baskets HESCO Baskets are wire-framed open cell structures. One cell consists of four flat panels of wires of the same gauge. The "top" of the cell or basket is completely open as is the "bottom." Each of the four sides consist of horizontal wire rods spaced equally apart and welded to four similar-sized rods in a vertical position to form a panel of squares framed by the rods but which are mostly open space. The fours sides are bound together by a coil of wire of a gauge identical to the wire used in the rest of the structure. Attached to the sides on the inside of the cells is felt-like material that is water- permeable. Two baskets are created by joining three wire panels to an existing basket. Only seven panels, therefore, are needed to create two baskets since one of the panels is shared. Used in military applications to create revetment structures to protect aircraft and personnel and in river settings for flood control in places as diverse as Alaska and the Middle East, HESCO baskets also have commercial applications. These were investigated by Mr. Jones as he talked to other contractors in the area. Ultimately, he viewed the process of installation of HESCO baskets locally, obtained a list of installers from a HESCO basket distributor and picked Robert Klemen, an installer who worked in the area of the Stovall and Buntin properties to hire as a subcontractor under his supervision. Before installation, however, a permit was required. Under the DEP Final Emergency Order authorizing local governments to issue permits for temporary emergency protection seaward of the CCCL, separate permits for the Stovall and Buntin properties were issued by Walton County. The Walton County Permits On October 28, 2005, Billy Bearden, Building Official for Walton County, issued two building permits to Robert Klemen. The first, Permit No. SW398Dennis, (the "County Stovall Permit") was for 711 Eastern Lake Dr., the Stovall Property. The second, SW400Dennis, (the "County Buntin Permit") was for 701 Eastern Lake Dr., the Buntin Property. The County Stovall Permit gives Mr. Kleman permission for "TEMP SEAWALL STABLILIZING BASKETS." Department Exhibit 8. Similarly, the County Buntin Permit gives Mr. Kleman permission for "TEMP Stabilizing BASKETS." Each permit recited that "[t]he Florida Department of Environmental Protection in Hurricane Dennis Emergency Final Order 05-1700 is attached," and warned that "[p]ursuant to the FDEP emergency order, care must be taken for the protection of sea turtles, their nests, hatchlings and nesting habitat." Department Exhibit 8, the 7th and 15th pages of fifteen un- numbered pages. The two permits also recited the following: All temporary retaining walls (or other types of beach armoring), permitted as an emergency measure as a result of Hurricane Dennis and Katrina, must be removed within 60 days of completion or applied to be permitted through DEP as a permanent structure. * * * For ease in monitoring and control, Walton County will consider all temporary restraining walls complete no later than October 28, 2005 and therefore must be removed within (sic) 60 days of completion or by December 27, 2005, whichever is sooner (unless complete application made to DEP). Department Exhibit 8 (emphasis added.) Each permit contained a drawing of the permitted activity. The County Stovall Permit drawing depicts a system consisting of three rows of baskets, two on bottom and one on top, that runs for 70 feet seaward of the Stovall House and then in an "L-fashion" 30 feet to the west of the house. The baskets are shown to be 3 feet wide each so that the bottom row is 6 feet wide. The height of each basket is depicted as 4 feet so that the height of the structure would be 8 feet. The drawing is consistent with the representation at hearing that each basket within the vegetated dune the structure now supports is 3 feet by 3 feet by 4 feet. The drawing also shows a connection to the Buntin system to be installed to the east. The County Buntin Permit shows the same type of structure with three rows of baskets, two on bottom and one on top. The structure extends 60 feet to the east of the Stovall structure seaward of the Buntin house. Prior to construction, it was made clear to Mr. Jones that the "system needed to be as much within the footprint of the house," tr. 93, as possible. The information was communicated from both county representative who conducted inspections and DEP representatives who "were around the property during the process of doing the beach walkovers, as well as the HESCO systems . . .". Id. The HESCO Basket System was not designed to meet coastal armoring standards. Nor was it designed to minimize impacts to sea turtles. Installation Pursuant to the County permits, the Hesco Basket Container Systems were installed on the Stovall and Buntin properties over the course of several weeks. The official CCCL location of the installation is approximately 285 to 399 feet east of DEP's reference monument R-93 in Walton County with a project address of 701 and 711 Eastern Lake Road, Santa Rosa Beach. The purpose of the installation of the man-made structures, consistent with their design, is to assist the retention of sand beneath the understory parking area of the two houses. As depicted on the permit drawings, the Stovall and Buntin systems were unified into one structure, that is, connected so that the structure ran without a break seaward of the Stovall and Buntin houses. During the construction process, Mr. Jones saw and conversed with several DEP representatives who were taking pictures along the beach. Although Mr. Jones "acted firmly in the belief that there would be no problem getting a permanent permit for [the HESCO] structure," tr. 96, he was never told by any DEP representatives, either on site or in phone conversations with Department employees in Tallahassee, that the structure would be permitted permanently by the Department. He was not told that such a permit application would be denied, either, he simply "was never able to get an actual answer . . .". Id. The structure on the Buntin property was constructed as depicted on the permit drawing. There were two rows installed on the bottom and one row on top for a total height of 8 feet. The structure installed on the Stovall property, however, was more elaborate than what was shown on the permit drawing. "[T]he Stovall property has three on the bottom, then two in the middle and then one on the top stacked pyramid style." Tr. 97. Twelve feet tall, the HESCO structure installed on the Stovall property was four feet higher than specified by the County permit. The structures were covered with sand in order to "rebuild the dune," tr. 109, in other words, the HESCO Baskets were installed in such a way as to serve as the core of a restored dune feature. The purpose of the installation was to provide a means of stabilizing the sand under the houses to restore the under-story parking. The installation was complete on November 4, 2005. The sand wall installed by Mr. Jones and his crew was then plugged with sea oats that were watered in the hope that their establishment would encourage the creation of a dune. A Vegetated Dune Pictures introduced into evidence reveal that the HESCO structure installed by the Stovalls and the Buntins, the sand installed on top and around it and the planting of the sea oats has resulted in a well-vegetated dune. As Mrs. Stovall put it at hearing, "y'all have got to admits that's the prettiest set of sea oats y'all [have] ever seen in your lives." Tr. 296. By the time of hearing, the dune had been maintained for nearly four years without any more sand imported by human hands. There has occurred, however, some exposure of wires of the HESCO system. A corner of one of the baskets in front of the Stovall house was exposed at the time of hearing and a picture introduced into evidence showed exposure of the top of several baskets in 2007. Mrs. Stovall expressed a desire to add more sand and ultimately to restore the dune to its pre-Opal status which "would add five-and-a half feet and make [the dune] level with the deck." Tr. 298. No sand has been added since the installation in November of 2005, however, because of the uncertain outcome of this proceeding. The exposure to date of the HESCO Baskets is in all likelihood the result of wind. Wave action, should it reach the system and be strong enough, will cause even more exposure. In fact, the HESCO Basket dune is not likely to be able to withstand wave action from 15 and 25-year return storms and a storms of such strength could expose the entire HESCO Basket structure leaving a jumble and tangle of wires on the beach. A recent series of aerial photographs from 2004 to 2007 show that the dune position to the west of the Buntin/Stovall property is approximately 30-to-50 feet further landward. The dune created by the HESCO baskets, therefore, is more seaward and more interactive with coastal processes than the dune to the west making the HESCO basket dune less likely to survive wave action than the dunes to its west. Nonetheless, as of the time of hearing, the system has maintained its integrity since installation. After the installation, the Stovalls and the Buntins were under no illusion that they had done all that was required in the way of governmental permitting. They knew that the County permits were good for only 60 days. They knew that they needed a CCCL permit from the Department if the structure were to achieve permanent permitting status. For that, they turned to their Qualified Representative in this proceedings, Ong-In Shin. Mr. Shin duly filed a CCCL permit application. The Application and Action by DEP On June 28, 2006, the Department received two applications for permits for construction seaward of the CCCL. Both were filed by Mr. Shin. One was filed on behalf of the Stovalls, the other on behalf of the Buntins. Section 4., of the applications, which called for "[a] brief description of the proposed work, activity or construction," contains the description: "Coastal Armoring." By letter dated July 11, 2006, the Department requested additional information related to the application. Among the eight separate requests was a request for a description of the proposed activity: "Please describe the work done at the subject property for which this After-the-Fact application has been submitted." Department Exhibit 7, at 80. In the notes of the request for additional information there appears the following: Please be advised that structures to be protected must be eligible and vulnerable as per Rule 62B-33.051, F.A.C. * * * Id. at 82. DEP has been notified by the Florid (sic) Fish and Wildlife Conservation Commission that Hesco box structures require an incidental take permit from the U.S. Fish and Wildlife service. The application was deemed incomplete a number of times and specific information was requested for it to be deemed complete. During the course of DEP's correspondence and additional submittals by Mr. Shin on behalf of the Stovalls and the Buntins, the Commission wrote to the Department on May 10, 2007, about its concern with regard to sea turtles. Based on Mr. Shin's representation that HESCO boxes are designed to collapse if subject to wave attack, Robin Trindell, Ph.D., wrote on behalf of the Commission to DEP, "Sea turtles attempting to nest or hatchlings in an area with HESCO containers could become entangled in these collapsible structures. Therefore, we do not recommend that these blocks be installed in sea turtle nesting habitat." Id. at 49. The application was deemed complete on August 30, 2007. On November 28, 2007, the Department issued a notice of denial that was received by Mr. Shin on December 4, 2007. While the HESCO Box System was found to meet applicable siting requirements, it was found to have failed to meet coastal armoring criteria related to eligibility, vulnerability, and design. Furthermore, the Department concluded that "the construction of the HESCO Box Container System does not meet the Department requirements for . . . absence of significant adverse impact to marine turtles." Id. at 9. A December 17, 2008, memorandum from Mr. Shin, received by the Department on December 24, 2007, put DEP on notice of his clients' intent to appeal the denial of the permit. The memorandum requested a 60-day extension of time to research the issues associated with the denial before beginning the "formal appeal process." Id. at 2. Mr. Shin filed the Petition for Formal Administrative Hearing with DEP on February 15, 2008. It initiated this proceeding at DOAH when the Department on February 29, 2008, requested assignment of an administrative law judge to conduct the proceedings. The issues in this case fall under two broad categories: Coastal Armoring and impacts to marine turtles. Coastal Armoring "Armoring" is defined by Florida Administrative Code Rule 59C-33.001(5): "Armoring" is a manmade structure designed to either prevent erosion of the upland property or protect eligible structures from the effects of coastal wave and current action. Armoring includes certain rigid coastal structures such as geotextile bags or tubes, seawalls, revetments, bulkheads, retaining walls, or similar structures but it does not include jetties, groins, or other construction whose purpose is to add sand to the beach and dune system, alter the natural coast currents or stabilize the mouths of inlets. (emphasis added). There is no question that the Stovall/Buntin Hesco Basket System is a manmade structure. Its purpose is to retain the sand under the Stovall and Buntin houses. At the same time, its construction resulted in sand added to the beach and dune system. One thing is clear: the HESCO Basket System is not conventional coastal armoring. Unlike "seawalls, revetments, bulkheads, retaining walls or similar structures" listed in the rule as examples of coastal armoring, the construction of the HESCO System led to a vegetated dune. Coastal armoring is closely regulated under Chapter 161 of the Florida Statutes by the Department and its Bureau of Beaches and Shores because that chapter is "all about protection of the beach dune system." Tr. 337. Coastal armoring usually contravenes such protection. "Coastal armoring does not protect the beach dune system. It's purpose . . . is to protect upland development." Id. While the purpose of the HESCO Basket System is to protect upland development unlike typical coastal armoring, it has added not only sand to the beach but has resulted in the creation and presence of a well-vegetated dune. Prior to 1995, "coastal armoring was only authorized as a last case possibility . . . ." Tr. 337-338. And it was only authorized when approval was given at the highest level of the state executive branch of government, the Governor and Cabinet. But the law was changed in 1995 in recognition that property owners have a right to protect their property. The Coastal Armoring Rule was amended to set up eligibility, vulnerability, siting and design criteria that would strike a reasonable balance between protection of the beach dune system and a property owner's right to protect his or her property. The law was amended again in 2006 to incorporate a new technology for dune restoration: geotextile systems. HESCO Basket Systems use in coastal armoring is also a new technology when it comes to Florida's beaches and shores. Use of HESCO baskets was described at hearing as "very new", tr. 344, relative to the time of the filing of Stovall and Buntin application. If the HESCO Basket System constructed on the Stovall and Buntin properties constitutes "armoring," then it must meet the requirements of Florida Administrative Code Rule 62B-33.051 which govern "Coastal Armoring and Related Structures" (the "Coastal Armoring Rule"). These requirements include conditions related to "eligibility", "vulnerability", and "design," some of the bases upon which the Department's denial of the after-the- fact permit rests. See Fla. Admin. Code R. 62B-33.0051(1)(a) and (2). Mr. McNeal's testimony established that the HESCO Basket System does not meet the "eligibility," "vulnerability," and "design," criteria for coastal armoring. But the Coastal Armoring Rule also encourages applicants for coastal armoring to "be aware that armoring may not be the only option for providing protection." Fla. Admin. Code R. 62B-33.0051(1). To that end, applicants for would-be armoring "are encouraged to evaluate other protection methods . . . such as dune restoration." Id. The HESCO Basket System installed by the Stovalls and Buntins follows the encouragement of the rule: it is a protection method that has resulted in dune restoration. CCCL Permit General Criteria Regardless of whether the HESCO Basket System and the vegetated dune it now supports constitutes coastal armoring, the structure on the Stovall and Buntin property must meet the General Criteria contained in Florida Administrative Code Rule 62B-33.005 for issuance of CCCL permits. Applications for those permits must be denied "for an activity which . . . would result in a significant adverse impact . . .". Fla. Admin. Code R. 62B-33.005(3)(a). Impact assessments conducted by the Department "shall include the anticipated effects of the construction on . . . marine turtles." Id. Marine Turtle Behavior Marine turtles spend most of their lives at sea often foraging hundreds of miles from their nesting habitat. Adult females migrate from feeding grounds and their foraging areas and aggregate off shore beginning in May of nesting season, generally from May through August. Off shore, the female turtles wait for nightfall to swim ashore and crawl landward in search of a spot to nest. Four species of marine turtles typically nest in Walton County: the Loggerhead, the green turtle, the Leatherback and Kemp's Ridley. Because the Loggerhead and green turtle are by far the most prevalent on Walton County beaches, the Commission focused on their specific behavior when it presented the testimony of Dr. Witherington. The mechanics of crawling differ between Loggerhead and green turtles. Loggerheads use an alternating gait while green turtles have simultaneous butterfly-style strokes. Both species drag the plastron or "belly shell" using all four flippers. Their crawls enable them to scale slopes and penetrate dune vegetation but they are not able to crawl backward. They are capable of crawling up a slope that is steeper than one to one. At a location between the recent high water mark, often observable by a wrack line (floating seaweed washed ashore) and the crest of the primary dune, the female selects a spot. The female creates a pit that she can slide her body into it. Loggerheads do so by scraping sand from the front with their front flippers and by gathering sand from beneath at the posterior to push it behind. This behavior referred to as "body pitting" tr. 474, results in a pit that the turtle eases into at a slight angle posterior end-downward at the deepest part of the pit. Green turtles have similar body-pitting behavior but it is more elaborate. "A green turtle will . . . blast the sand out in front of it, dig an enormous pit . . . two or more feet deep and create a very large mound." Tr. 475. Beneath the body pit, the turtle digs an egg chamber. For Loggerheads the depth of the egg chamber is "a little over two feet . . . say 26 inches or so," tr. 482 from the surface of the sand. For a green turtle, the depth is closer to 3 feet. On average, clutch size for a Loggerhead is 115 eggs. The range is from 70-to-170 eggs per clutch. Average clutch size for green turtles in Florida is roughly 128 with a range from 70 to 200. Turtles and the Stovall/Buntin Property Assuming no obstacles such as an exposed HESCO Basket, a sea turtle would have no trouble making its way to the crest of the HESCO Basket dune on the Stovall/Buntin property. The Stovall/Buntin dune supported by HESCO baskets is mostly vegetated with sea oats. There is Seaside Evening Primrose and some Beach Morning Glory, too. As long as the turtles are not interfered with by the HESCO baskets, a sea turtle would have no problem nesting amidst the vegetation on the Stoval/Buntin dune. Heavily eroded beaches do not discourage sea turtle nesting behaviors. But where sea turtles choose to nest on a heavily eroded beach is altered by the erosion. Dr. Witherington explained: [F]ollowing a severe erosion event, . . . [t]he beach tends to be flatter and in some cases broader and with escarpment from erosion that has occurred. And almost invariably following severe erosion events . . ., sea turtles aim for the high ground. In part, because that is the only dry sand remaining on the beach, . . . [a]nd they're choosing the safest sites on the beach to nest. Tr. 485. Thus, the erosion that has occurred on the Stovall/Buntin property is not likely to deter sea turtles from nesting there. Almost all of the area seaward of the Stovall and Buntin houses is nesting habitat, but if a sea turtle chooses to nest there, the most likely place is somewhere on the dune created by the HESCO Baskets. Threats to Sea Turtles Sea turtles encounter numerous threats, impediments and hazards when they are attempting to nest on beaches visited by human beings as much as the beaches of Walton County currently. Coastal armoring is commonly recognized as a threat to sea turtle nesting because it serves as a barrier to sea turtle nesting habitat -- precisely the opposite of the Stovall/Buntin HESCO Basket-supported dune which is an appealing place along a severely eroded beach in which to nest. Man-made debris is a threat to sea turtles. There are numerous types of debris: monofilament line is one example. Holes in the sand dug by beachgoers, beach furniture and walkways are either barriers or can cause entanglement that can lead to sea turtle injury or death. If a turtle gets up on a sea wall and falls, the fall can seriously injure the turtle or result in death. Artificial lighting is a particularly dangerous and prevalent threat. The lighting can disorient both nesting turtle and hatchlings causing them to move away from the ocean or gulf. Death can result from dehydration in the morning sun, wandering inland and falling prey to predators, or ending up on highways and being struck by cars. In addition, there are natural threats to sea turtles. A variety of predators dig into sea turtle nest for the eggs. The eggs may be swept away when the sediment around the clutch is washed away. Inundation, as well, if over too long a period can destroy the eggs. Exposed HESCO baskets are a threat to sea turtles and their hatchling in multiple ways. The ways in which they could injure or kill a turtle were described by Dr. Witherington: HESCO baskets accessible to sea turtles would act as a barrier to a sea turtle reaching an appropriate nesting habitat. An open HESCO basket . . . could act as a trap, . . . [for] turtles that might end up inside the top of the basket itself, and then there's an entanglement effect that would probably be of very little concern for HESCO baskets that were not exposed, but when they do become exposed, the entrapment effect would be much . . . larger . . . Tr. 502. Dr. Witherington also described three problems that could be posed by an exposed HESCO basket shown in a photograph taken on the Stovall property and attached to a Site Inspection Report date November 19, 2007. See Department Exhibit 16P, at 9. These were first, "the pitfall hazard," tr. 504, second, a vertical fall that the turtle might take from atop an exposed basket, and, third, entrapment. As for entrapment, Dr. Witherington opined, "it may look to many that the open HESCO baskets don't leave much opportunit[y] for the sea turtle to become entrapped, but one thing we learned is that sea turtles often make their own traps," id., when presented with situation similar to that of an exposed HESCO basket. There is another hazard to sea turtles posed by a HESCO basket if the baskets were buried beneath where a nesting turtle was digging its nest. If the turtle were to dig into the basket and strike it, it could cause the turtle to abandon the site and return to the sea. If the dune that the HESCO Baskets support were to be washed away in a storm and the basket structure were to fail, the debris left would be a "particularly pernicious tangle of wire and mesh that would very much have the potential to ensnare sea turtles." Tr. 507. A Sea Turtle Take In Dr. Witherington's opinion, HESCO baskets constitute significant habitat modification or degradation that could significantly impair the essential behavioral pattern of breeding. If HESCO baskets killed or injured a marine turtle, therefore, they would constitute a "Take," as defined by Section 373.2431(1)(c)2., Florida Statues: "'Take' means an act that actually kills or injures marine turtles, and includes significant habitat modification or degradation that kills or injures marine turtles by significantly impairing essential behavioral patterns, such as breeding, feeding, or sheltering." "Any person . . . that illegally takes . . . any marine turtle species, or the eggs or nest of any marine turtle species . . . commits a third degree felony, punishable as provided [by law.]" § 379.2431(1)(e)5., Fla. Stat.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Coastal Construction Control Line Permit applied for by the Stovalls and Buntins be issued with the conditions listed in paragraph 110, above. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 30th day of November, 2009. COPIES FURNISHED: Stanley M. Warden, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building, Room 108 620 South Meridian Street Tallahassee, Florida 32399-1600 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ong-In Shin Florida Coastal Development Consulting, Inc. 4654 East Highway 20 Niceville, Florida 32578 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
