The Issue The issue is whether Petitioner should discipline Respondent for immorality, misconduct in office, or incompetency in connection with his supervision, as a high school baseball coach, of a team trip, during which hazing occurred, and his subsequent investigation of the incident.
Findings Of Fact Respondent has been a teacher and a coach for 27 years. He taught and coached in Illinois for 11 years before moving to Florida, where he has taught and coached for the past 16 years. He currently is teaching health, and he sometimes teaches physical education. Respondent holds Florida Educator's Certificate 551145, which is valid through June 30, 2005, and he is certified in health education, physical education, and social science. Respondent has coached basketball, football, and baseball. Most recently, Respondent was the head baseball coach at Coconut Creek High School where he was the Fort Lauderdale Sun-Sentinel Coach of the Year for Broward County three years ago. He coached baseball four years at Coconut Creek High School and the preceding eight or nine years at Fort Lauderdale High School. The events in this case arose during the 2000 season; Respondent did not coach during the 2001 season. During spring break of 2000, Respondent took his baseball team to Orlando and Sebring. The purpose of the trip was to allow the team to play two high-school baseball games against teams from different regions of the state and to visit an Orlando theme park. The trip took place toward the end of the season, prior to the commencement of the district tournament. The Orlando trip extended from Sunday, April 16, through Wednesday, April 19. Twenty-four student athletes went on the trip. In addition to Respondent, the other adults supervising the students were assistant coaches Reynaldo Nieves, Joseph Leone, and Rex Nottage. Respondent's wife was also with him, as were several parents, but they did not share with Respondent and the assistant coaches supervisory responsibility for the students. On arriving in the Orlando area early in the morning, the group first visited Islands of Adventure, a theme park. They finally reached their hotel at about 8:00 p.m. Respondent gathered the students together and gave them directions as to where they could go. He told them they could not leave the motel property without the permission of a coach. Some students wanted to eat; most wanted to shower. Respondent told them they had to be in their rooms by 11:00 p.m. and their lights must be out by midnight. Respondent warned them that he and the other coaches would perform bed checks at these times. Respondent and his wife had arranged the rooms so that the group was together at the motel. Their rooms were on the second or third floor of the motel. Each room accommodated four students. Respondent and his wife were in a room, Mr. Leone was in a room, and Mr. Nieves and Mr. Nottage shared a room. The students' rooms were between the rooms of the adults to enable the adults to exercise closer control over the students. At some point prior to the first bed check, the older students began entering the rooms of the younger students, by trick or by force. A large group of the older students would then overpower the younger student and, typically, apply Icy Hot liniment to a towel and then to the testes of the student. The students were aware that this hazing was likely to occur during this trip. Seven of the students were hazed by nearly all of the remainder of the team. Prior to being hazed himself, D. B. was aware that other students had been hazed and was aware of the form of the hazing because some of the other students had come to D. B.'s room and asked to use the shower. D. B. was a junior, but this was his first year on the varsity, and he knew that the older students would try to haze him too. However, he did not try to contact one of the coaches or parents to intervene in the half hour that D. B. estimates elapsed between the hazing of the last of the other students and his hazing. As had happened to most of the other hazed students, most, if not all, of the older students on the team entered D. B.'s room, pulled down his pants, and applied Icy Hot and shaving cream to his genital area. D. B. yelled and struggled against four or five students on various parts of his prone body. He sustained some minor scratches while he was held down for about one minute. As soon as he was released, D. B. took a shower. He chased the remaining students out of his room, swinging a belt and yelling. While in the shower, D. B. was so angry that he threw soap and shampoo containers in the shower stall. About ten minutes after D. B. was hazed, Mr. Nieves was roaming the rooms and entered D. B.'s room. Petitioner contends that Respondent had allowed Mr. Nieves and Mr. Nottage to leave the motel for dinner from 8:00 p.m. to 10:45 p.m. If so, Respondent, his wife, and Mr. Leone could adequately supervise the students occupying the six rooms between them. However, D. B. testified that the hazing took place around 9:00 to 9:30 p.m., so, if Mr. Nieves arrived ten minutes later, he was gone only until 9:10 to 9:40 p.m. Either way, the record does not reveal any irresponsibility on Respondent's part in allowing his two assistant coaches to leave him, his wife, and Mr. Leone to supervise 24 students for even three hours. When Mr. Nieves looked into D. B.'s room, he found D. B. in a bad mood, angrily throwing things around the bathroom. The door to D. B.'s room was open, so Mr. Nieves walked inside and asked if he was okay. D. B., who was wearing only a towel wrapped around his waist, did not answer, but left the bathroom and stood in front of the wall air conditioning, unit, which was blowing cold air. Mr. Nieves saw about five marks on D. B.'s back and saw that D. B. was beet red. The marks appeared as though someone had been grabbing him. Mr. Nieves offered to get Respondent, and D. B. said to do so. Mr. Nieves thought that D. B. had been wrestling or something. His visit to D. B.'s room had occurred not long before the first room check. Mr. Nieves walked down the hall to Respondent's room and found Respondent inside. Mr. Nieves informed Respondent that D. B. wanted to talk to him. He told Respondent that it looked like something was wrong. Respondent and Mr. Nieves returned to D. B.'s room. They arrived there about three minutes from the time that Mr. Nieves had left the student's room. Respondent entered D. B.'s room ahead of Mr. Nieves and found D. B. standing in front of the air conditioning fan, holding the towel open like he was cooling down. In a conversation that lasted about 30 seconds, Mr. Nieves said to D. B., "Coach is here. Tell him what's wrong." Respondent added, "What's wrong?" To these inquiries, D. B. replied, "Nothing. Don't worry about it." Mr. Nieves and Respondent asked about the red marks, but D. B. said they were nothing and everything was fine. D. B. testified that he did not disclose the hazing because he knew that Respondent would punish the team. He assumed that the team would be upset with D. B. for telling the coach that they had done something of which Respondent disapproved. Somewhat irritated that D. B. had asked to see Respondent and three minutes later declined to tell him anything, Mr. Nieves left the room with Respondent. They then completed the bed check, and Mr. Nieves did not see Respondent again that night. However, Mr. Nieves returned to D. B.'s room about a half hour later. He found D. B. still standing by the air conditioning fan. Mr. Nieves told D. B. that it was not fair to Mr. Nieves to say to Respondent that nothing was wrong. Mr. Nieves then asked if something was wrong. D. B. replied, "They got me, coach." Mr. Nieves did not know what he meant, but thought that D. B. meant some sort of rough-housing. Mr. Nieves asked D. B. why did you not say something to Respondent. Mr. Nieves spent about 15 minutes in D. B.'s room, but did not learn anything more specific. However, D. B. expressed considerable anger to Mr. Nieves. The Icy Hot that came into contact with D. B.'s penis was most painful. The next morning, the pain was somewhat reduced. Early that morning, the team went to a baseball field to prepare for a game that day. They did a lot of situational baserunning so the fielders could practice. Because D. B. was not a starter, he and the other nonstarters had to do much of the baserunning. He displayed no problems running in the morning. However, hours later, during the pregame practice, a ball was hit toward D. B. in the outfield. He charged it, but it got by him. Instead of turning and running after the ball, as Respondent required of all players, D. B. turned and walked toward the ball. Seeing D. B. and another student not hustling, Respondent pulled them off the field. When Respondent demanded to know why D. B. had not run after the ball, D. B. said that "my balls are on fire." D. B. had a poor attitude at times and was stubborn. Without responding meaningfully to D. B.'s explanation, Respondent benched both players for the entire game. D. B.'s explanation is discredited due to his ability to run without impediment in the morning. D. B. had called his parents Monday at around noon and had told them what had happened the prior evening. D. B. called them again after the afternoon game. During the first call, D. B.'s parents told him to defend himself if necessary and not to worry about talking to Respondent about the hazing. Respondent had not been feeling well Sunday night. By the time of practice Monday morning, his throat was so sore that he had to have his assistant coaches direct the students on the field and yell instructions. After the game, in which Respondent's team had played poorly and lost, Respondent spoke only briefly to the team and allowed Coach Nottage to yell at the students to fire them up and make them work harder. After the team had returned to the motel, Mr. Nieves talked to D. B.'s roommates. He was somewhat concerned about D. B. because, after the game, when he had asked the student what was wrong, D. B. had only laughed as if he were mad. The roommates talked vaguely about Icy Hot, but they were unwilling to be more specific. Around 8:00 or 9:00 p.m. Monday at the motel, D. B. came to Respondent's room and asked if he could talk to the coach for a minute. Respondent said he could. D. B. then told Respondent that he had had Icy Hot put on his testes. Whispering, Respondent asked if he was alright and what did D. B. want Respondent to do about it. The record is unclear whether he asked this in a challenging or inquisitive tone. D. B. did not add more details. On Tuesday morning, the team departed Orlando in vans headed for Sebring, where they were to play another game Tuesday night. Respondent had been quite sick Monday night, unable to swallow or talk. By Tuesday, he was even more sick. No one spoke to him about D. B. or hazing. With considerable effort, Respondent was able to escort the team to the Sebring motel, and then he went directly to a nearby hospital emergency room. Diagnosed as having pharyngitis, Respondent obtained an injection of antibiotics, which provided him relief the next day. Scheduling problems resulted in postponing the Sebring game, so that the team did not return to the motel until after 11:00 p.m. Respondent directed the students to go directly to their rooms and told them that there would be a midnight bed check. Late the next morning, Wednesday, the team left Sebring to return to Fort Lauderdale, where they arrived at 3:00 p.m. One of the parents traveling with the team told Respondent at a gas stop that D. B. had called his parents. Respondent summoned D. B. and complained about D. B. calling his parents without first informing Respondent of the problem. The conversation was brief because the group was waiting in their vans. D. B. replied, "Well, coach, you know what happens." Respondent answered, "I don't know what happens. Go get in your van." On the way back to Fort Lauderdale, Mr. Nieves told Respondent what he knew about hazing in the form of older students applying Icy Hot to the genitalia of younger students and, in some cases, paddling younger students. Respondent expressed his frustration that D. B. had not complained to him about the hazing. When they returned to Fort Lauderdale, Respondent told D. B. that he wanted to speak to him and his father, who was there to pick him up. However, D. B. and his father left the school without speaking to Respondent. Respondent decided to call a team meeting to find out what had happened. Respondent called D. B.'s mother to assure that D. B. would come to the meeting, but she said that he was at work and that she had already called the school board. D. B. was not at work. In the team meeting, Respondent warned the students that hazing was very serious. He asked for those persons directly and indirectly involved to identify themselves. Various students began raising their hands, admitting to various levels of involvement, and Mr. Nottage recorded their names, at Respondent's direction. Respondent then warned the students that the school board was involved and there could be criminal punishments for certain persons. He told the students that there was nothing that he could do about these consequences, but he would take his own actions. At this point, many of the students began retracting admissions. Feeling that the notes had become useless, Respondent obtained the notes from Mr. Nottage and discarded them later that weekend. Prominent among the many differences in testimony concerning the events of this trip and its immediate aftermath is a difference in recollection between Respondent and Mr. Nieves concerning a conversation between the two of them following the meeting. Mr. Nieves testified that Respondent instructed him to deny that the notes existed, and Respondent denied that this is true. Such dishonesty, if true, would merit punishment. It is possible that Respondent did ask Mr. Nieves to conceal the truth in order to protect Respondent's students, who had made confessions prior to understanding the potential administrative and criminal consequences. Perhaps Respondent regretted his role in securing this inculpatory information. On the other hand, Mr. Nottage, as well as over 22 students were at this meeting (another student had failed to attend), so Respondent had to know that such a concealment was unlikely to go undetected. Most importantly, though, Mr. Nieves was a most unconvincing witness. His recollection of details was poor, contradictory, and entirely inconsistent with his apparent intelligence. His demeanor was poor. The Administrative Law Judge was left with the opinion that Mr. Nieves was lying at the time that he first provided statements concerning the events--for some reason, trying unfairly to inculpate Respondent or to exculpate himself--or he was lying at the hearing--belatedly, trying to protect Respondent. On balance, it is impossible to credit Mr. Nieves' testimony on this crucial point. After talking the matter over with Mr. Nieves and Mr. Nottage (Mr. Leone had already left before the meeting), Respondent decided to punish the students as best he could by making them run. Those who had actually touched the younger students had to run 10 miles. Older students who had stood by and encouraged or supported the hazing had to run an intermediate distance. Even the victims, such as D. B., had to run because they had not reported the hazing, but their distance was the shortest. The team had a game the next morning. Late in the afternoon or early in the evening on Thursday, Respondent called his supervisor for athletics, the Coconut Creek High School athletic director, and reported the hazing in general terms. The athletic director told Respondent that he had done the right thing by calling him and said to come see him Monday, when school was back in session. On Saturday morning, Respondent required the students to run the distances that he had determined appropriate. He also informed the team that he would be recommending to the principal that the baseball team not take field trips. The athletic director later suggested that Respondent not make that recommendation. D. B. and his parents have filed a civil action against the school board for damages arising out of the incident. School officials have known that hazing has been a problem in the past at Coconut Creek High School, although more with the soccer team. In 1997, the athletic director asked Respondent, as the baseball head coach, to draft a letter stating a policy prohibiting hazing. Addressed to the parents of baseball players, the letter states in part: "The athletic department has a policy of zero tolerance when it comes to "initiating" or "hazing" a fellow student. Anyone guilty of participating in a hazing or a form of initiation will be immediately dismissed from the team." Respondent and the athletic director signed the letter. At the start of the 2000 season, Respondent warned the students on the team that he would not tolerate any sort of misbehavior, including hazing. Respondent had not been aware of any hazing incidents on the baseball team since 1997. As already noted, other students knew of the continuation of the practice. Some of the parents of the older students also knew of the practice, at least as it had been inflicted on their sons. However, it does not necessarily follow that what a student shares with a parent, he also shares with his coach. Petitioner has failed to prove incompetency, lack of fitness, inefficiency, or incapacity on the part of Respondent. Nor has Petitioner proved immorality. The evidence does not establish that Respondent knew or had reason to know that hazing was about to occur or that hazing had occurred. At all times, Respondent was in charge of 24 students, and, most of the time, he was sick--after Sunday, very sick. The scrutiny that Respondent could reasonably be expected to give the D. B. situation, especially given the student's reluctance to make a straightforward declaration of what happened, must be assessed n light of these circumstances. As the last person to be hazed, D. B. had ample opportunity to alert the coaches. After the hazing, D. B. repeatedly declined to disclose the problem to Respondent. D. B. knew that Respondent did not condone hazing. D. B. knew that, rather than ignore a hazing complaint, Respondent would punish the responsible players, and this would draw unwanted attention to D. B. Seeking advice from his parents, D. B. was reinforced in his earlier determination not to seek the effective remedies that he knew were available within the structure of the team. Petitioner has also failed to prove misconduct in office. Again, Respondent's supervision of the students was adequate. His investigation was sufficient for imposing intra- team discipline. His apparent departure from school policy of dismissal from the team may be explained by Respondent's awareness that the school board and possibly law enforcement would also investigate the matter and impose their own sanctions; presumably, the athletic department policy was intended to operate in isolation. Although Respondent could have informed the athletic director of the problem Wednesday night or Thursday morning, Respondent did so later Thursday. This brief delay caused no prejudice, as Respondent's supervisor assured Respondent that he had done the right thing and he would visit him the next Monday.
Recommendation It is RECOMMENDED that the School Board of Broward County, Florida, enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 20th day of September, 2001, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2001. COPIES FURNISHED: Dr. Frank Till Superintendent School Board of Broward County, Florida K.C. Wright Administration Building 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 Honorable Charlie Crist, Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Carmen Rodriguez Carmen Rodriguez, P.A. 9245 Southwest 157th Street, Suite 209 Miami, Florida 33157 Robert F. McKee Kelly & McKee, P.A. Post Office Box 75638 Tampa, Florida 33675-0638 Jerry W.Whitmore, Bureau Chief Bureau of Educator Standards Department of Education 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact Mr. Stills filed a sworn application for eligibility to sit for the licensure examination for limited surety agents with the Department of Insurance on February 24, 1992. The application contains these questions: Q: Have you ever been charged with or convicted of or pleaded guilty of no contest to a crime involving moral turpitude, or a felony, or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or conviction has been entered? What was the crime? Where and when were you charged? Did you plead guilty or nolo contendere? Where you convicted? Was adjudication withheld? Please provide a brief description of the nature of the offense charged: If there has been more than one such felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. Mr. Stills answered "no" to the main question and filed no response to subquestions a through f. Discharging a firearm - 1973 Mr. Stills had been charged with the misdemeanor of discharging a firearm within city limits on September 10, 1973, a violation of Section 790.15, Florida Statutes (1973). The incident occurred in Pensacola, Florida. Mr. Stills accidently discharged a shotgun in an incident involving his father. Mr. Stills had been called to his father's home because of a dispute his father was having with a neighbor. His father met him on the back porch, with a shotgun in his hand. Mr. Stills calmed his father, and was able to get him to give him the shotgun. The shotgun was an old one, and as Mr. Stills attempted to unload it, the hammer slipped and the gun accidently discharged. The neighbor called the police, and the charge was filed, and Mr. Stills paid a small fine. Second degree murder - 1984 On May 31, 1984, Mr. Stills was arrested and charged with second degree murder, in violation of Sections 775.087(2) and 782.04(2), Florida Statutes (1983). The arrest arose from an argument which Mr. Stills had with the decedent. On May 24, 1980, Mr. Stills and the decedent had an argument in which the decedent threatened to kill Mr. Stills. Mr. Stills then left. Later that afternoon, the decedent approached Mr. Stills at another location, and appeared to reach for something. Out of fear generated by the decedent's earlier threat Mr. Stills had already armed himself, and when the victim made a threatening movement, Mr. Stills shot him out of fear for his own safety. He was arrested, charged with second degree murder, but acquitted in a jury trial on March 21, 1985 based on his plea of self defense. Firearms chares - 1987 Mr. Stills was charged on April 15, 1987, in an Information with the felony of carrying a concealed firearm, in violation of Section 790.01(2), Florida Statutes (1987), and the misdemeanor of improper exhibition of a firearm, in violation of Section 790.10, Florida Statutes (1987). On that date, Officer John Gonzalez responded to a request for police assistance; the call said a man was displaying a firearm in a threatening manner. Officer Gonzalez arrived at the location given to him, and saw Petitioner, who generally fit the description of the man allegedly waiving a firearm about. Mr. Stills was then seated in an automobile. He was not waiving a gun about or threatening anyone. Officer Gonzalez approached him from the passenger side of the car, where he observed a revolver sitting on the passenger seat; the gun was loaded. He then arrested Mr. Stills. The charge of carrying a concealed firearm was dismissed by the court. Mr. Stills entered a plea of guilty to the misdemeanor of exhibiting a firearm on July 20, 1987. After exchanging correspondence with the Department, Mr. Stills amended his application, disclosing the charges and sending the necessary backup information required by the application form. He stated he had misread the question as requiring only information on felony convictions, and he had none. When the Department denied Mr. Still's application it gave these specific reasons: He had been charged with discharging a firearm within the City of Pensacola on September 17, 1973. He had been charged with second degree murder on May 21, 1984, but had been found not guilty on March 21, 1985. On April 15, 1987, he had been charged with carrying a concealed firearm and improper exhibition of a firearm, that he had pled guilty to the misdemeanor charge and been placed on three months probation yet Mr. Stills had failed to acknowledge any of these charges on his application. The Department relied on Section 648.32(2)(f), Florida Statutes, and 648.45(2)(e), Florida Statutes, to deny his application.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department enter a Final Order finding Mr. Stills eligible for licensure as a limited surety agent, and permitting him to sit for the licensure examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March 1993. APPENDIX The following constitute my rulings on findings proposed by the Department as required by Section 120.59(2), Florida Statutes. Adopted in Findings of Fact 1. Adopted in Findings of Fact 2. Adopted in Findings of Fact 3. Adopted, as modified in Findings of Fact 4. Adopted in Findings of Fact 5. Adopted in Findings of Fact 5. Adopted in Findings of Fact 5. Adopted in Findings of Fact 6. Adopted in Findings of Fact 7. Adopted in Findings of Fact 7. Adopted in Findings of Fact 9. COPIES FURNISHED: James A. Cassidy, Esquire 6121 Palm Beach Lakes Boulevard Suite 403 West Palm Beach, Florida 33409-0223 Daniel T. Gross, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL 11 Tallahassee, Florida 32399-0300
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Petitioner's Amended Notice of Specific Charges, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto and since 1980, Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract. She was assigned to Pine Lake Elementary School for the 1992-93 school year. She is familiar with the School Board's rules regulating employee conduct and prohibiting the use of corporal punishment. Prior to the 1992-93 school year and as a result of complaints from parents, Respondent was given written directives, reasonable in nature and given by and with proper authority, to desist from using abusive, sarcastic, and disparaging language with elementary school children. Those directives specifically reminded Respondent of her obligation as a teacher to not intentionally expose students to unnecessary embarrassment or disparagement and to avoid using abusive language in the presence of children. She was also cautioned against the use of intimidation and ridicule. Prior to the 1992-93 school year Respondent received another written directive, reasonable in nature and given by and with proper authority, to refrain from intimidating or being disrespectful to other employees. Respondent was further specifically ordered to stop directing profanity at members of the staff and to avoid situations that result in confrontations. In December of 1992 a fight broke out between Respondent's son and Tony, another elementary school student, while they were in the breakfast line in the school cafeteria. Frederick Collins, the route salesman for Velda Farms Dairy, was delivering milk to the cafeteria and saw the two boys fighting. He put down his milk so he could stop the fight. As he ran toward the two boys, he saw Respondent, whom he knew to be a teacher at that school, running toward the two boys. Respondent got to the boys first. Respondent grabbed Tony around the neck with both hands and began choking him and shaking him. Respondent was choking Tony so hard that his tongue was out of his mouth. She was hysterical and kept screaming at Tony over and over again about him "messing" with her son. Collins reached Respondent and tried to pull her away from the frightened child. By that time, Moses Holcomb, the head custodian at the school, had heard the noise and the other children calling to him to come help. He ran to where Respondent was choking and shaking the child, and together Holcomb and Collins were able to separate Respondent from Tony. Even after the two men were able to pull Respondent away from the child, she tried to get to him again. Holcomb had to physically get between Respondent and Tony, and Collins had to physically hold her to prevent her from grabbing Tony again. Tony did not kick at Respondent during the altercation. Further, Tony did not flail his arms at her and did not try to hit her. He was passive during the entire time that she was choking and shaking him and screaming at him. Holcomb took Tony to the principal's office and reported Respondent's conduct to the principal. When the principal spoke to Respondent about her attack, Respondent admitted hitting, choking, and shaking Tony. Respondent's attack on Tony was observed by students, parents, faculty, and staff members. Collins expressed his shock at seeing a teacher behave in such a manner. The incident became widely known. On January 20, 1993, Respondent's son and the son of Cynthia Williams, another teacher at Pine Lake Elementary School, fought with each other. After the fight, Mrs. Webb, the assistant principal, spoke to Williams and to Respondent and explained that she had investigated the circumstances of the fight, that Respondent's son had started the fight, and that the Williams boy had only defended himself. On the following day, Cynthia Williams waited for the school bus to bring her son from his nearby school to Pine Lake Elementary. When she saw Respondent also waiting for the bus, she knew there would be trouble based on Respondent's reputation and past behavior. Williams asked another teacher to wait with her. When the bus came, Williams and the other teacher walked over to the bus to get Williams' son. Respondent approached them and it was apparent that Respondent was very angry. She began grilling the Williams boy as to why he had been fighting with her son. Mrs. Williams calmly told Respondent that she would take care of it and would speak to her son after they got home. Respondent continued grilling the boy in a very threatening and intimidating manner and shaking her finger in Mrs. Williams' face. As Williams and her son began backing away from Respondent, the other teacher ran to get a principal. As a result of her aggressive behavior, Respondent was given another written directive ordering her to stop intimidating and abusing other faculty members and to conduct herself in a professional manner. Respondent was subsequently given an alternate assignment and was relieved of her teaching duties at Pine Lake Elementary School. In April of 1993 in the late afternoon Respondent returned to Pine Lake to pick up her personal belongings. When she encountered Williams, she told Williams "this isn't over" in such a threatening manner that Williams reported that incident to the principal at Pine Lake Elementary. The principal wrote a letter to Respondent ordering her to stay away from that school. During the week of November 9, 1992, Respondent was on jury duty. Although the courthouse was closed on November 11 and Pine Lake Elementary School was open, Respondent failed to report for work at the school. Instead, she falsely claimed that she had been on jury duty the day the courthouse was closed, in order to receive her regular pay from the School Board. When the principal discovered Respondent's false report, she instructed the staff to report Respondent as having taken a personal day rather than reporting Respondent as having been on leave without pay in order that they could avoid the expected confrontation by Respondent. Yet, in spite of the principal's attempt to be very fair with Respondent, Respondent thereafter kept harassing the attendance staff to pay her for that day. On March 1, 1993, a conference for the record was conducted with Respondent by Dr. Joyce Annunziata, the director of Petitioner's Office of Professional Standards. Because of Respondent's history while employed by Petitioner, she was placed in an alternate work assignment and referred for a medical evaluation to determine her fitness to carry out her duties. The clinical interview and psychological testing revealed that Respondent has difficulty handling stress, avoids dealing with problems, and blames others when problems occur. She has paranoid tendencies and is defiant of authority. Her personality structure is stable, and she is unlikely to change. She should not be in a teaching position but should be in a position where stress is unlikely to occur. Further, Respondent's difficulties with stress, with authority figures, and with co-workers existed well prior to the occurrence of Hurricane Andrew and are not attributable to stress following the hurricane.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Notice of Specific Charges filed against her in this cause, suspending her without pay up to the date of termination, and terminating her employment by the School Board of Dade County, Florida. DONE AND ENTERED this 21st day of December, 1993, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2452 Petitioner's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 12 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law and recitation of the testimony. Respondent's proposed findings of fact numbered 1, 16, 21, and 22 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-5, 8, 9, 11-15, 19, 20, and 23-29 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Respondent's proposed findings of fact numbered 6 and 10 have been rejected as being subordinate to the issues herein. Respondent's proposed finding of fact number 7 has been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 17 and 18 have been rejected as being not supported by the weight of the credible evidence in this cause. COPIES FURNISHED: James C. Bovell, Esquire 3211 Ponce de Leon Boulevard Coral Gables, Florida 33134 William Du Fresne, Esquire Du Fresne and Bradley, P.A. Suite One 2929 Southwest Third Avenue Miami, Florida 33129 Octavio J. Visiedo, Superintendent School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue is whether petitioners' development is entitled to a favorable determination by respondent under Subsection 380.0651(3)(e)1.c., Florida Statutes (1989), and thus is exempt from development of regional impact review.
Findings Of Fact PETITIONERS' EXCEPTIONS In its Exception No. 1., Petitioners take exception to the Hearing Officer's determination that there was no evidence in the record to support a finding that Lee County Sheriff's Office, or any other local law enforcement officials strictly enforce Lee County Ordinance No. 90-51. Petitioners' exception is not supported by the record. Lee County Ordinance No. 90-51, requires that a vessel must proceed at idle speed, no wake, within five hundred feet of a water oriented structure, such as a seawall or dock. If enforced, the ordinance would require that boaters on the channel who venture closer than five hundred feet to the seawall which fronts a part of the island's shoreline or a dock located several hundred yards south of the collector canal, which is the site of Petitioners' proposed project, be obliged to travel no faster than idle speed, no wake in those areas. The Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced was based on the testimony of Lt. Graylish of the Florida Marine Patrol. Lt. Graylish appeared as a witness for Respondent and testified as to his opinion as a law enforcement officer on the impact of Lee County Vessel Control Ordinance No. 90-51 on vessel speeds in Estero Bay. During Lt. Graylish's direct examination when asked whether the Marine Patrol enforced the ordinance he replied: Well, we have the power to do it. The hardest problem for us is what in fact is that 500 foot distance. It's really hard on the water to come up with that, and then we've got a lot of transient traffic that goes through that area from out of state during season and part-time residents, and it's very difficult to enforce that when you don't have an actual sign placement indicating what in fact the condition is. [Tr. p. 118, Ins. 15-24] The lieutenant's testimony was uncontroverted. Petitioners produced no competent substantial evidence to refute Lt. Graylish's testimony. Likewise in its exceptions, Petitioners have failed to present competent substantial evidence to demonstrate why the Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced should be rejected. Accordingly, Petitioners' Exception No. 1. is therefore rejected as being contrary to the evidence presented. In its Exception No. 2, Petitioners object to the Hearing Officer's determination that the parties stipulated that manatees now frequent the channel (i.e., Coon Key Pass). Petitioners state that the parties only stipulated that "Estero Bay is an area that is, at least, frequented by manatees" and cites to the Transcript in support of its position. [See Petitioners' Exceptions] However, a review of the statement in the record which Petitioners rely on and which was made by Petitioners' own attorney at the hearing demonstrates that the Hearing Officer was correct in finding that the parties stipulated that manatees frequent the channel. In pertinent part the passage states: At this time I would like to stipulate to one thing that was omitted in here [i e., prehearing stipulation], is that we do stipulate that the areas are Outstanding Florida Waters and Class II waters, Estero Bay, and they are waters that are at least frequented by manatees . . . (emphasis added)[Tr. p. 8, Ins. 18-24] The Hearing Officer's finding that the parties stipulated that manatees now frequent the channel, which is part of Estero Bay, is consistent with the parties' stipulation. The exception is therefore rejected as unnecessary. In its Exception No. 3, Petitioners take exception to the Hearing Officer's finding that since there was no evidence that Ordinance No. 90-51 would be strictly enforced, DNR could not reasonably determine that Petitioners' project would not have an adverse impact on manatees. The issue in this case was whether Petitioners were entitled to a favorable determination under Chapter 380, Florida Statutes, that their proposed project was located so that it would not adversely impact Outstanding Florida Waters or Class II waters an would not contribute boat traffic in a manner that would adversely impact an area known to be, or likely to be, frequented by manatees. It was Petitioners' burden to show by a preponderance of the evidence that they were entitled to a favorable determination. It was therefore incumbent upon Petitioners to present competent evidence regarding the enforcement of Ordinance No. 90-51. This Petitioners did not do. Therefore, Petitioners' Exception No. 3 is rejected as either irrelevant or not being based on competent substantial evidence. In its Exception No. 4, Petitioners allege that Respondent's committed two discovery violations. These allegations are beyond the scope of what is permitted under the rules which deal with exceptions to recommended orders; however they will be addressed. Petitioners claim they were prejudiced by improper testimony from the Respondent's expert witnesses, Pat Rose and Kipp Frohlich. Petitioners state that these witnesses "allegedly re-examine Petitioners' project area on the afternoon prior to the hearing and alleged the discovery of new observations and conclusions at the hearings." [See Petitioners' Exceptions] Petitioners claim that this alleged re-examination precluded any opportunity for discovery and that therefore, "no testimony relating to this site visit should have been admitted into the record." However, Petitioners raised no such objection at the hearing and by not doing so have waived any right to do so now. Furthermore, there is nothing in the Florida Rules of Civil Procedure that would preclude an expert witness from engaging in a review of information to be relied on at the hearing prior to the hearing. Additionally, for clarification only, it should be noted that there is no evidence in the record which would have led Petitioner to believe that Pat Rose visited the site prior to the hearing. In Exception No. 4, Petitioner further alleged that the Hearing Officer should have disallowed the testimony of Lt. Graylish, because his name "first appeared on the prehearing stipulation (not signed by Petitioners) approximately 48 hours before the hearing . . . ." However, Petitioners' did not object at the hearing to the testimony of Lt. Graylish and furthermore, stated on the record in reference to signing the prehearing stipulation: due to our, I guess you would say our geographic differences, the prehearing stipulation was submitted . . . without my signature; and at this time I would like to on the record confirm that I stipulate to that prehearinq stipulation that was jointly prepared and finally submitted by the Department. (emphasis added) [Tr. p. 4, Ins. 21- 25] In addition to having stipulated to Respondent's witnesses, which included Lt. Graylish, Petitioners had raised this very objection prior to the hearing and the Hearing Officer had conducted a telephonic hearing on the matter. The Hearing Officer ruled that the witness would be allowed to testify at the hearing subject to Petitioners' objections at that time. A review of the record of the hearing indicates that Petitioners made no further objections to the lieutenant's testimony. Exceptions as to alleged discovery violations are improper pursuant to the rules and in this case there is no competent substantial evidence to demonstrate the existence of any discovery violations. Exception No. 4 is therefore rejected as being improper. Finally, at Exception No. 5, Petitioners take exception to the Hearing Officer's application of law to the findings of fact to support a determination that Petitioners failed to sustain their burden of demonstrating that their proposed project would riot "contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees." Petitioners allegation that this conclusion be rejected is based upon Petitioners' argument, discussed above, that the Hearing Officer erred in finding that Ordinance No. 90-51 was not strictly enforced. As stated in Paragraphs Nos. 1. and 3., any such rejection of the Hearing Officer's finding in this regard is unsupported by competent substantial evidence. Petitioners allege that the Hearing Officer's "sole conclusion of possible manatee impacts from this project was based on what he determined to be a lack of evidence that Ordinance No. 90-51 would be strictly enforced. Petitioners have narrowly construed the Hearing Officer's ruling. There is ample evidence in the record to support the Hearing Officer's conclusion that the Petitioners had not met their burden. In fact, the Recommended Order demonstrates that the ruling was also based on competent substantial evidence presented by Respondent that this proposed project demonstrated a potential for harm to manatees. In that regard, the Hearing Officer's conclusion was based on testimony from both Pat Rose and Kipp Frohlich. It was their testimony which led the Hearing Officer to conclude that a "favorable determination for Petitioners would not lie." The record is replete with evidence the Hearing Officer could have reasonably relied upon to conclude that Petitioners failed to sustain their burden of proof. [See Tr. p. 118, Ins. 6-9; p. 156 p. 1; p. 158, Ins. 4-6; p. 158. In. 9; p. 159, In.18; p. 176, Ins. 20-23; ; p. 218, Ins. 20-24; p. 219, In. 40p. 316, Ins. 22-23; DNR Exh. 17J Accordingly, Petitioners' exceptions to Conclusion of Law No. 5., is rejected as being contrary to Florida law and the evidence presented. RESPONDENT' S EXCEPTIONS Respondent alleges that Finding of Fact No. 15., should be rejected in its entirety inasmuch as it is not supported by competent substantial evidence. At finding of fact No. 15, the Hearing Officer implies that the Petitioners were "somehow surprised" on June 7, 1991, while the parties were preparing the Prehearing Stipulation to be filed at hearing on June Il, 1991, to learn that DNR intended to take the position at hearing that the proposed project would likely contribute boat traffic in a manner that would adversely impact an area frequented by manatees. In support of this finding the Hearing Officer refers to a comment made by DNR employee David Trimble at his June 5, 1990, deposition, during which he advised Petitioners that based upon the October 17, 1990 memorandum from the Division of Marine Resources he assumed that the manatee issue was "resolved" in Petitioners' favor. However, a review of the record reveals that at no time subsequent to November 8, 1990 or the date on which the unfavorable letter of determination was issued, could Petitioners reasonably claim they believed the issue regarding manatees was resolved. Accordingly, the Hearing Officer's finding in this regard is not based on competent substantial evidence and is rejected. At his deposition Mr. Trimble was asked who was responsible for making the final determination decision, to which he replied: I evaluate them and make a staff recommendation to my superiors. (emphasis added) [Tr. 22, Ins. 24-25] Q. So you go with your feeling - from what the letters say and - A. Not from my feeling, I go with what the letters say. [Tr. p. 23, Ins. 8-11] Furthermore, Trimble's statement at the deposition that he believed the manatee issue was resolved was given only after Petitioners specifically asked Mr. Trimble his opinion on the matter. Furthermore, Trimble was qualified to give only his opinion as to whether the manatee issue was resolved, not the agency's position which was memorialized in the November 8, 1991, letter of determination. Petitioners' claim that they believed the manatee issue was resolved and the Hearing Officer's subsequent finding that Petitioners' claim was meritious can not be supported on the basis of Trimble's answer to the following question: Q. Was, in your opinion - - and this is your opinion as the reviewer of the request - - was the manatee issue resolved . . . (emphasis added) [Tr. p. 26, Ins. 8-10] Further, the letter that was issued under the Executive Director's signature did not indicate that the manatee issue was resolved, quite the contrary. In fact, the Prehearing Stipulation at page 17, stipulated to by both parties after, the deposition of Trimble listed the following disputed issue for determination at the hearing: 2. Whether the DNR correctly determined that the proposed 132 wetslips in conjunction with the existing 161 slips, will contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees. In order to find that Petitioners were somehow surprised by this "newly discovered revelation" (i.e., that manatees were going to be an issue at hearing) the Hearing Officer improperly attributed more weight to the deposition testimony of Trimble thanit was due. Trimble was merely the conduit through which information on the manatee issue from the Division of Marine Resources passed. As he himself stated, he was the reviewer of the information - - he was not the final decisionmaker. Once having reviewed the material sent to him from the other divisions, he merely drafted the unfavorable letter of determination for the Executive Director's consideration. The Executive Director then reviewed the material and issued the letter of determination under his signature.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order confirming its earlier determination of November 8, 1990, under Subsection 380.0651(3)(e)1.c., Florida Statutes. RECOMMENDED this 16th day of August 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991.
The Issue The issues to be determined in this proceeding are whether Respondent Prospect Marathon Coquina, LLC (PMC), is entitled to an environmental resource permit for the proposed expansion of a docking facility, and whether PMC is entitled to a modified sovereignty submerged land lease for the proposed project.
Findings Of Fact The Parties With the exception of Elizabeth Schuh, all Petitioners live in the Driftwood neighborhood, which is located across Big Bayou from the proposed project. All Petitioners use Big Bayou for various recreational purposes, including swimming and boating. Several Petitioners also use Big Bayou for nature observation. Petitioner Peter Pav owns waterfront property on Big Bayou. Respondents do not dispute Petitioners’ standing. The Department is charged with the responsibility to regulate construction activities in waters of the state. The Department has also been delegated authority from the Trustees of the Internal Improvement Trust Fund (Trustees) to process applications for submerged land leases for structures and activities that will preempt the use of sovereign submerged lands. PMC is a Florida limited liability corporation that owns 2,786 linear feet of upland shoreline contiguous to the state-owned submerged lands of Big Bayou. PMC is the developer of the multi-family residential condominium development on Coquina Key that the proposed project would serve, known as Coquina Key North. The Affected Waterbody Big Bayou is near the southern end of the St. Petersburg peninsula. The mouth of the bayou opens to Tampa Bay. Big Bayou is part of the Pinellas County Aquatic Preserve, which includes most of the coastal waters of Pinellas County. Like all aquatic preserves in Florida, the Pinellas County Aquatic Preserve is also designated as an Outstanding Florida Water.1 Florida Administrative Code Rule 18-20.001 states that the aquatic preserves in Part II of Chapter 258 (which include the Pinellas County Aquatic Preserve) “were established for the purpose of being preserved in an essentially natural or existing condition so that their aesthetic, biological and scientific values may endure for the enjoyment of future generations.” The term “essentially natural condition” is defined as “those functions which support the continued existence or encourage the restoration of the diverse population of indigenous life forms and habitats to the extent they existed prior to the significant development adjacent to and within the preserve.” Fla. Admin. Code R. 18-20.003(24). In the 1960s and 1970s, development activities throughout Tampa Bay caused the loss of about 80 percent of its seagrasses and significant degradation of water quality. The seagrasses and water quality in Big Bayou were also adversely affected by filling and other development activities, including the filling and bulkheading of Coquina Key where the proposed project would be located. In more recent years, the water quality in Big Bayou has improved. Although trash sometimes washes up on the shoreline and one can sometimes see a sheen on the water surface caused by gasoline or oil, the water quality in Big Bayou is generally good, with high dissolved oxygen and low nutrient concentrations. The seagrasses have also recovered to a large extent. A variety of seagrasses grow in Big Bayou, including shoal grass, manatee grass, turtle grass, widgeon grass, and a relatively uncommon species, palm grass. Seagrasses are the foundation for the marine food web. They also serve as a nursery for small fish and invertebrates, stabilize sediment, and improve water quality. Manatees regularly enter and use Big Bayou because it provides good habitat. The manatees in this area are part of the Southwest Florida manatee subpopulation. Based on data collected through 2001, that subpopulation is either stable, or possibly declining. Pinellas County is not one of the 13 Florida counties that were required to develop and implement manatee protection plans. There are two areas of Pinellas County that the Florida Fish and Wildlife Conservation Commission (FWCC) has identified as needing additional manatee protection measures, but Big Bayou is not one of them. The Proposed Project The proposed authorizations would allow PMC to expand an existing multi-family, residential docking facility on the north end of Coquina Key, along an existing seawall and adjacent to the Coquina Key North condominiums that PMC converted from a former apartment complex. The proposed project would add 60 boats slips to the existing 30 boat slips at the project site. The new slips could accommodate boats up to 25 feet in length. PMC would restrict use of the boat slips to Coquina Key North condominium owners. In converting the former apartment complex to condominiums, PMC retained ownership of a strip of land immediately upland of the submerged lands on which the proposed project would be constructed. The ground for Petitioners’ Motion for Summary Order is that the ownership retained by PMS, because it does not include ownership of the upland residences, does not entitle PMS to obtain a submerged land lease for the proposed project. That legal argument is addressed in the Conclusions of Law. Direct Impacts An earlier plan for the proposed project was to place 30 new boat slips on the north side of the existing docks and 30 new slips on the south side. However, to avoid direct impacts to seagrasses, the plan was modified to avoid an area of seagrasses on the south side. The proposed project now would add 38 boat slips on the north side and 22 slips on the south side. The over-water dock structures would be placed waterward of the seagrasses that currently grow along the seawall. The seagrasses adjacent to the proposed project are not likely to be harmed by wave action or turbulence from boating activity around and in the slips because of the distance between the slips and the seagrasses. The proposed authorizations include specific conditions that prohibit numerous activities that could cause adverse water quality impacts at the proposed project site, such as the discharge of trash, human or animal waste, or fuel; fish cleaning stations; boat repair facilities; fueling facilities; hull cleaning, painting or other external boat maintenance; and boat maintenance or repair activities requiring removal of a boat from the water, or removal of major portions of the boat for purposes of routine repair or maintenance on site, except where removal is necessitated by emergency conditions. No liveaboards would be allowed at the proposed project. PMC intends to incorporate these conditions into its agreements with the condominium owners who use the boat slips. Because Big Bayou is an Outstanding Florida Water, PMC is required to provide reasonable assurances that the project will not result in the lowering of existing ambient water quality. Florida Administrative Code Rule 62-4.242(2)(c) defines “existing ambient water quality” as the better water quality of either what existed on the date that the water body was designated an Outstanding Florida Water or what existed in the year prior to the permit application. Because the current water quality is better than it was in 1972 when the Pinellas County Aquatic Preserve was created, the current water quality is the standard to apply in this case. Although some incidental non-compliance with the conditions of the proposed authorizations could occur, such incidental non-compliance would not likely result in significant2 degradation of the existing ambient water quality in Big Bayou. Secondary Impacts – In General Petitioners’ primary concerns with the proposed project are with the secondary impacts that would be caused by increased boating activity in Big Bayou. Petitioners contend that the additional boats using the 60 new boat slips would adversely affect water quality, seagrasses, manatees, and other natural resources. Petitioners also assert that the additional boating activity would cause erosion of the north shoreline of Big Bayou and impair Petitioners’ recreational uses of the bayou. It is reasonable to assume that there would be more boat trips on Big Bayou if the proposed project were built than if it were not built. However, it is impossible to say how many more boat trips would be generated by the proposed project. It cannot be assumed that because there would be 60 more boat slips, there would be 60 more boats on Big Bayou each day, each week, or even each month. Moreover, the number of boats on Big Bayou on any given day fluctuates because it depends not only on the whims of the boat owners who have boat slips in Big Bayou, but also on the whims of the boat owners who anchor their boats in the open waters of Big Bayou, launch their boats from the public boat ramps on Big Bayou, or enter Big Bayou from Tampa Bay or more distant waters. Secondary Impacts - Erosion Petitioners did not present competent evidence to support their claim that the proposed project would cause erosion of the north shoreline of Big Bayou. Secondary Impacts – Water Quality The Department has adopted by reference the Southwest Florida Water Management District’s Basis for Review for Environmental Resource Permits (Basis of Review) to apply to applications for environmental resource permits for projects over which the Department retains permitting authority. For docking facilities, Section 3.2.4.3 of the Basis of Review requires the applicant to provide hydrographic information to demonstrate that the “flushing time” (the time required to reduce the concentration of a pollutant) is sufficiently short to prevent the accumulation of any pollutants to the point of violating water quality standards. PMC’s hydrographic analyses indicate that Big Bayou is well-flushed. The water of the bayou moves a half mile to a mile during a normal tide. The fact that the current water quality in Big Bayou is good indicates that contamination associated with the current level of boating activity in the bayou is not accumulating. Incidental discharges of contaminants from boats using the proposed project would likely be rapidly dispersed and diluted. Petitioners argued that PMC’s hydrographic analyses did not address every part of Big Bayou. The rule requires hydrographic characterization of “the project site and surrounding waters.” As the challengers, Petitioners needed to rebut PMC’s prima facie case regarding the hydrographic characteristics in the bayou with competent evidence showing PMC’s findings were inaccurate, or show that the scope of PMC’s hydrographic analyses did not conform with any reasonable interpretation of the applicable rule. Petitioners presented no such evidence or showing. Some additional, incidental contamination can be expected to occur as a result of the operation of the boats that would use the proposed project. However, PMC provided reasonable assurance that the addition of these contaminants would not significantly degrade the existing ambient water quality of Big Bayou nor cause any other applicable water quality standard to be violated. Secondary Impacts - Seagrasses The maximum water depth at which most seagrasses can grow is between five and six feet because of their need for light. When boaters attempt to cross shallow areas where seagrasses are located, they sometimes damage the grasses with the boat propellers, leaving areas of torn grass and “prop scars,” furrows in the bottom. Even when boat propellers do not touch the bottom, but come close, they can disturb the loose sediments and cause turbidity. It can be especially harmful when boats run aground, because the boater will sometimes grind away at the seagrasses in an attempt to move the boat to deeper water, causing holes 10 or 12 feet in diameter. Different seagrasses recover from such damage at different rates. In some cases, it can take years for a prop scar to become re-vegetated. A 1995 study of prop scars by the Florida Marine Research Institute found that the Tampa Bay area is one of four areas of Florida with the greatest acreage of moderate and severe scarring. There are prop scars visible in the bottom of Big Bayou and Petitioners testified about seeing boats run aground in Big Bayou. The main navigation channel on the north side of Big Bayou ranges in depth from slightly less than 8 feet to over 17 feet. There are channel markers to help boaters find and stay in this channel, but some of the original markers are missing. In addition to the main navigation channel, there is an area along the north side of Coquina Key that is used by the residents living along that shoreline to get to and from Tampa Bay. This second route, which is not marked, is much shallower than the main channel and its use by boaters at low tide is a threat to seagrasses in the area.3 If more boaters in Big Bayou stayed in the main navigational channel, there would be a decreased threat to the seagrasses. However, the evidence shows that boaters often travel out of the main channel, either by inadvertence or to take a shortcut, and cross shallow areas where the seagrasses are located. It was the opinion of David Crewz, a plant ecologist who specializes in seagrasses, that increased boating activity in Big Bayou could decrease the habitat quality of the bayou. He said that one can expect more prop scarring and more turbidity caused by stirring up the bottom sediments. He was most concerned about boats larger than 16 feet in length that do not stay in the marked navigation channel. The 1995 Florida Marine Research Institute study of prop scarring, which Mr. Crewz co-authored, recommended a four- point approach to reduce prop scarring: (1) boater education, (2) channel marking, (3) enforcement, and (4) speed zones. The conditions contained in the proposed authorizations would implement two of the four points recommended by the study. PMC would install informational signs about seagrasses at the proposed project and at Grandview Park so that boaters using the proposed project and boaters using the boat ramp at the park would be less likely to operate their boats in a manner harmful to seagrasses. PMC would replace all missing markers along the main navigation channel. The current distance between some of the channel markers may be causing some boaters to stray from the channel. PMC would mark the location of seagrasses adjacent to the navigation channel. The operation phase of the environmental resource permit would not become effective until the channel markers and seagrass markers have been installed. The proposed educational displays, channel markers, and seagrass markers would probably reduce boat traffic across seagrass areas, but they would not eliminate it. However, because the displays and markers would be viewed by boaters using Big Bayou other than just the 60 boaters who would use the slips at the proposed project, the “net” effect of the proposed project would likely be no significant increase in prop scars or related adverse impacts to seagrasses in Big Bayou due to the proposed project. Therefore, PMC provided reasonable assurance that the proposed project would not result in significant adverse impacts to seagrasses. To go further, however, and contend as PMC does that, even with the addition of 60 boats, the effect of the proposed project would be to significantly reduce the current incidents of prop scarring, boat grounding, and other adverse impacts to seagrasses, is mere speculation without a statistical analysis of boater behavior or other evidence that was not presented in this case. PMC would also limit the use of its boat slips to vessels with a draft that would provide at least a twelve-inch clearance between the vessel’s draft in a motor-down position and the top of submerged resource at mean low tide. This condition appears to been intended to track similar wording used in Florida Administrative Code Rule 18-20.004(5)(b)8., but because the condition leaves unstated the depth of the submerged resources and the water level of Big Bayou at mean low tide, a prospective renter of a boat slip would not know whether his or her boat would comply with the condition. The rule cannot be more specific because it applies to all waterbodies, but the specific condition in the proposed authorizations can and should be more specific to provide for adequate notice and enforcement. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to seagrasses. Secondary Impacts – Manatees In Florida, between 25 and 30 percent of the annual manatee deaths are caused by collisions with boats. From 2002 to 2006, in Pinellas County waters, 41 percent of the manatee deaths of a known cause were watercraft-related. That percentage exceeds the state average and corresponds to an average of 3.2 deaths per year caused by boats. However the study area from which these statistics were compiled does not include Big Bayou. Dr. John Reynolds, a marine mammal expert, believes that boat speed is the primary factor in manatee deaths from boat collisions. At higher speeds, boaters and manatees have less time to avoid a collision and the severity of the injury to a manatee is generally greater when the manatee is struck by a boat moving at higher speeds. There are no boat speed zones currently established in Big Bayou. Thirty-three years of data collected by the Florida Fish and Wildlife Conservation Commission (FWCC) indicate that there are no known boat-related manatee deaths within two and a half miles of the project site. There have been two dead manatees discovered in Big Bayou, but their deaths were not attributed to boat collisions. Increasing the number of boats in an area used by manatees increases the potential for boat/manatee collisions. To minimize the potential for boat/manatee collisions, PMC would implement the standard manatee protection measures that apply during the construction of the proposed docks. PMC would also implement and maintain a manatee education program approved by the FWCC, including informational signs regarding manatees at the proposed project. Although reducing speeds by establishing, posting, and enforcing idle speed or slow speed zones in the bayou would probably be the most effective measure for the protection of manatees, PMC cannot be required by the proposed authorizations to control boat speeds because boat speed zones must be established by Pinellas County and the Florida Marine Patrol. The proposed authorizations incorporate the conditions recommended by the FWCC for the protection of manatees. Tom Logan, the former FWCC endangered species coordinator and now a consultant who focuses on endangered species and their habitat, believes that the special conditions included in the proposed authorizations provide adequate protection for manatees. The U.S. Fish and Wildlife Service also concluded that the proposed project is not likely to adversely affect manatees. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to manatees. Secondary Impacts – Recreation Petitioners claim that their recreational uses of Big Bayou for fishing, swimming, canoeing, kayaking, and windsurfing would be diminished by the proposed project. However, Big Bayou is large enough to accommodate the additional boat trips associated with the proposed project and Petitioners’ recreational uses. A public water body like Big Bayou must be shared by persons living along or near its shores with all other citizens of Florida. Although some Petitioners would prefer that the bayou had the feel of a more remote or wild place, the Pinellas County Aquatic Preserve is recognized to have a “highly developed, urban nature.” Fla. Admin. Code R. 18-20.019. It already has the attributes of an urban preserve. PMC provided reasonable assurance that the proposed project would not prevent or significantly impair the existing recreational uses of Big Bayou. Cumulative Impacts Florida Administrative Code Rule 18-20.006 and Section 3.2.8 of the Basis of Review require that cumulative impacts be evaluated in determining whether to issue, respectively, a submerged lands lease or an environmental resource permit. PMC and the Department state in their Proposed Recommended Orders that the consideration of cumulative impacts is limited to projects that are existing or under construction, but Florida Administrative Code Rule 18.006(1) also requires, for a sovereignty submerged lands lease, consideration of “the number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve.” Because the principal source of potential adverse impacts associated with the proposed project is boating activity, the existing docking facility at Coquina Key North, the other docks in Big Bayou, and the boat ramp at Grandview Park are existing structures generating boating activity that must be taken into account in the cumulative impacts analysis. Although the proposed project, with the conditions on its construction and operation, would, alone, have no significant adverse impact on water quality, seagrasses, manatees, or recreational uses in Big Bayou, the cumulative impacts to Big Bayou from all similar activities in the preserve have created significant (material) adverse impacts to Big Bayou in the form of trash, water contamination, damage to seagrasses, and prop scars. Public Interest Criteria Section 258.42(1)(a), Florida Statutes, requires that a lease of sovereignty submerged lands within an aquatic preserve by the Trustees must be “in the public interest.” Florida Administrative Code Rule 18-21.003(46) defines “public interest” in this context as “demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action.” Florida Administrative Code 18-20.004(2) sets forth the public interest criteria to be considered and balanced by the Trustees in determining whether to issue a submerged land lease or other authorization to use sovereignty submerged lands. The Rule identifies public boat ramps and “marking navigation channels to avoid disruption of shallow water habitats” as examples of public benefits. These benefits, however, must “clearly exceed” the “costs,” such as degraded water quality, degraded natural habitat and function, harm to endangered or threatened species and habitat, and adverse cumulative impacts. For issuance of the environmental resource permit, a determination is required that the proposed project is “clearly in the public interest,” because Big Bayou is part of an Outstanding Florida Water. Fla. Admin Code R. 62-4.242(2). This determination requires the consideration and balancing of a number of criteria set forth in Section 3.2.3 of the Basis of Review: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity.4 As explained in the Conclusions of Law, the “clearly in the public interest” test does not require the applicant to demonstrate that the intended activity would have a net public benefit. The counter-intuitive result is that, to meet the “in the public interest” test for the sovereignty submerged land lease, PMC must demonstrate a net public benefit, but to meet the “clearly in the public interest test” for the environmental resource permit, PMC does not have to show a net public benefit. The measures that PMC has agreed to undertake to meet the public interest criteria for the proposed authorizations are as follows: Contribute $300,000 to the construction of a second boat ramp at the current Sutherland Bayou Boat Ramp project in Palm Harbor; Install and maintain navigational aides marking the main channel in the bayou; Install markers indicating the location of seagrass beds; Install and maintain an informational display at the public boat ramp in Grandview Park, relating to the protection of seagrasses and natural resources within the bayou; and Install and maintain an aerial map at the Grandview Park boat ramp depicting the location of the navigation channel and the seagrass beds in the bayou. The $300,000 contribution for the boat ramp was based on a similar contribution ($5,000 per slip) that was made previously by the developer of another docking facility in Pinellas County. The Department had originally suggested that PMC contribute to a spoil island restoration project to satisfy the public interest criterion. However, due to the Trustees’ and/or Department’s concern about the reduction in the number of boat slips available to the general public,5 the Department proposed that PMC contribute $300,000 to Pinellas County’s Sutherland Bayou Boat Ramp project in Palm Harbor. The definition of “mitigation” in Florida Administrative Code Rule 18-20.003(35) states that, “Cash payments shall not be considered mitigation unless payments are specified for use in a previously identified, Department endorsed, environmental or restoration project.” No evidence was presented to show that the Sutherland Bayou Boat Ramp project is an “environmental or restoration project,” and it does not appear to qualify as such. Implicit in the boat ramp contribution proposal is the view that the public interest in providing more recreational boaters with access to Pinellas County waters outweighs the negative impacts to marine resources that are associated with increased boating activity. No evidence was presented, however, to explain or support this view. The strange result here is that PMC would be mitigating for the adverse impacts associated with increasing the boating activity in Big Bayou by helping to increased boating activity in other county waters where seagrass losses have been greater, prop scarring is a bigger problem, and more manatees are being killed by boat collisions.6 Dr. Reynolds stated that the Sutherland Bayou Boat Ramp project in Palm Harbor could be a benefit to Big Bayou if the boat ramp project took boat traffic away from the bayou, but he did not know whether it would. A reasonable inference can be made that, being so far away, the Sutherland Bayou Boat Ramp project is unlikely to add to or subtract from boat traffic in Big Bayou. As found above, the adverse environmental impacts of the proposed project, taking into account the proposed conditions, would be insignificant. However, because the record evidence shows that the Sutherland Bayou Boat Ramp project would put boats into county waters (and aquatic preserve waters) where there has been greater seagrass losses, more prop scarring, and more manatees killed by boat collisions than in Big Bayou, PMC’s $300,000 contribution to the boat ramp project actually increases the secondary impacts and cumulative impacts of PMC’s proposed project and causes it to fail to meet the public interest criteria. Without the $300,000 contribution to the Sutherland Boat Ramp project, PMC would meet the “clearly in the public interest” test for the environmental resource permit because the other mitigation offered by PMC would offset the secondary and cumulative impacts of the proposed project. However, a different result would occur in the case of the sovereignty submerged land lease. Eliminating the $300,000 contribution to the Sutherland Boat Ramp project would result in a situation where the public benefits of the proposed project do not “clearly exceed” the costs of the project and, therefore, PMC would not meet the “in the public interest” test. Although the record in this case is insufficient to demonstrate that PMC’s contribution to the boat ramp project would cause the benefits of the project to clearly exceed its costs, the record evidence is sufficient to support issuance of the lease modification if PMC were able to get the appropriate government authorities to establish a boat speed zone in Big Bayou, or if PMC contributed to the enforcement of boat speed zones in the aquatic preserve. As restated in the Conclusions of Law, whether the proposed mitigation is sufficient to offset the adverse impacts of the proposed project is a determination that rests exclusively with the Trustees and the Department, based on the record evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order denying Environmental Resource Permit No. 52-0258984-001 and the modification of Sovereignty Submerged Land Lease No. 520224543. In the event the Trustees determine to issue the submerged land lease, it is recommended that the lease be modified to add a condition that the boat slips shall only be subleased or sold to residents of Coquina Key North condominiums. DONE AND ENTERED this 21st day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2008.
The Issue Whether Petitioner's furlough should be revoked based on his failure to comply with the terms of the furlough agreement which he executed on April 6, 1981. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.
Findings Of Fact Petitioner, Samuel Grant, is a seventeen (17) year-old male who was furloughed to the Department of Health and Rehabilitative Services, Youth Services Division, on April 14, 1981. At that time he agreed to abide by a furlough agreement which required, inter alia, that he (1) obey all laws; (2) not change or leave his residence, employment, or school, or leave the county without the consent of his counselor or other authorized HRS representatives; (3) that he keep in contact with his counselor and (4) that all instructions of his counselor be carried out. Additionally, he agreed to abide by a 9:00 P.M. curfew on week days and an 11:30 P.M. curfew on weekends; attend community mental health for counseling; attend school or find gainful employment and make weekly contact with his counselor on Wednesdays of each week. (Petitioner's Exhibit 2.) On September 8, 1981, the Youth Services Division revoked Petitioner's furlough agreement based on the following facts: (1) Petitioner failed to obey laws and he gambled for his income; (2) failed to follow instructions of his parents and counselor; (3) continuously violated his curfew and (4) failed to attend school or maintain employment. (Petitioner's Exhibits 1 and 3, and Testimony of Jesse Morris, Petitioner's counselor while furloughed at the Belle Glade Youth Center.) The evidence herein also reveals that Petitioner was expelled from school because he possessed marijuana and his mother testified herein that he violated his curfew on numerous occasions. Petitioner's mother indicated that he spent nights away from home on a number of occasions and that he was afforded an opportunity to work with his father, a contractor, who extended a job offer to Petitioner. Petitioner has repeatedly run afoul of criminal laws from December, 1978, through October, 1980, including, but not limited to: (1) unauthorized use of a motor vehicle; (2) malicious mischief; (3) resisting arrest with violence; (4) possession of burglary tools, night prowling, and (5) burglary and grand larceny. Petitioner does not dispute the above findings; offered that he felt that he was not breaking the law and that he did not consider that it was "right" for him to attend school. He offered no explanation as to his failure to accept the offer of employment extended by his father.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's Order of September 8, 1981, revoking Petitioner's furlough, and ordering him to be reassigned to another program or facility as soon as practical, be SUSTAINED. RECOMMENDED this 1st day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1982. COPIES FURNISHED: Samuel L. Grant c/o Florida School for Boys Route 7, Box 250 Okeechobee, Florida 33472 K. C. Collette, Esquire Department of HRS 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401
The Issue The issue presented for decision in this case is whether Orange County should be granted Environmental Resource Permit (“ERP”) No. 940519-1 for the Keene’s Park and Boat Ramp project (also referred to herein as the "R.D. Keene boat ramp") to be located on Lake Isleworth, part of the Butler Chain of Lakes, an Outstanding Florida Water (“OFW”), pursuant to the permitting criteria of Chapter 373, Part IV, Florida Statutes, Chapter 40E- 4, Florida Administrative Code, and the Basis of Review for Environmental Resource Permit Applications of the South Florida Water Management District (the “District”).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: THE PARTIES Petitioner Alicia O’Meara and Intervenor Regina Gibbs are the owners of waterfront property on Lake Isleworth. Petitioner James E. Slater is the trustee and legal owner of waterfront property on Lake Isleworth. Orange County is the owner of waterfront property on Lake Isleworth. The Orange County Parks and Recreation Department, which prepared and submitted the ERP application, administers a budget in excess of $36 million and employs more than 425 persons. The District is a public corporation initially established under Chapter 25270, Laws of Florida, 1949, and currently operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code. The District is statutorily responsible for issuance of ERP permits. THE CURRENT SITUATION The Butler Chain of Lakes is a series of interconnected lakes in Orange County, covering in excess of 5,000 acres, and including Lake Down (the northernmost lake in the Butler Chain), Lake Butler, Wauseon Bay, Lake Louise, Lake Isleworth (also known as Lake Palmer), Lake Chase, Lake Blanche, Lake Tibet-Butler, Lake Sheen, Pocket Lake, Little Fish Lake, and their connecting canals. The Butler Chain drains south into the Upper Kissimmee River Basin. The Butler Chain of Lakes is a Class III water body, and has been designated as an OFW since 1984. The Butler Chain of Lakes is surrounded by exclusive residential communities. There are approximately 1,400 docks on the Butler Chain of Lakes, providing private access to at least that many motorized watercraft. At all relevant times, there has been one boat ramp open to the general public on the Butler Chain. That public ramp is located in the southeastern portion of Lake Down, and is immediately adjacent to vehicular traffic on Conroy-Windermere Road. The ramp was deeded to Orange County by a private owner in the 1950s. The Lake Down ramp is an inclined cement or concrete slab that leads down into the shallow water and allows boat trailers to be backed to water’s edge and boats to be unloaded into Lake Down. The ramp has no dock, floating dock, buoys, or any other structure that would provide ease of access to handicapped or disabled persons. The ramp has no mooring facility in its vicinity. Should there be a need to moor a boat, the operator must do so in the shoreline vegetation. The Lake Down ramp has no adjacent parking lot. Orange County leases a vacant lot on the other side of Conroy-Windermere Road for boat ramp parking. This lot is approximately 1,900 feet from the boat ramp. Boaters must unload their boats at the ramp, moor the boats, drive to the lot to park their vehicles and trailers, then walk the 1,900 feet along Conroy-Windermere Road back to the place where they left their boats. The sidewalk along Conroy-Windermere Road does not extend the full 1,900 feet between the Lake Down ramp and the vacant lot. For about 300 feet of the trek to and from the ramp, people must walk on the roadside grass. Orange County leases the vacant lot from Windermere Property Holdings. The term of the lease expires on January 15, 2001. The lease also provides that either party may terminate it by providing 60 days written notice. Absent this lease, Orange County would have no provision for parking vehicles and boat trailers anywhere remotely near the Lake Down ramp. A further problem with the public ramp at Lake Down is that the only access channel from Lake Down to the remainder of the Butler Chain is through Wauseon Bay. The Wauseon Bay channel runs under a low vehicular overpass, which prevents access for all but the smallest boats from Lake Down to the other lakes in the chain when the water level is too high or too low. Thus, there are times when the general public has boating access only to Lake Down, the northernmost lake in the Butler Chain. There are other boat ramps on the Butler Chain, but none of these is available to the general public of Orange County. The Orlando Utility Company owns a private ramp on Lake Down. The Town of Windermere owns a public ramp, but allows its use only by residents of the Town of Windermere. The Sportsman’s Club owns a ramp on Lake Sheen, but access is limited to club members. There is a private ramp on Lake Tibet-Butler at the Bay Hill Lodge, with a fueling system, a marina, and a mooring facility. The Isleworth Country Club owns a recently permitted ramp on Lake Tibet-Butler. THE KEENE'S PARK AND BOAT RAMP SITE The limited public access to the Butler Chain led the Orange County Board of County Commissioners to pursue a policy of obtaining multiple access sites on the Butler Chain. The Keene's Park site, on approximately 52 acres of property owned by Orange County, was the Board’s first choice. The site of the proposed R.D. Keene boat ramp is located within an abandoned citrus grove. While the site was being used as a citrus grove, a canal was constructed from Lake Isleworth to the adjacent uplands to provide a source of water for irrigation. The proposed ramp would be located within this previously excavated canal, which is deep enough to permit navigation out into the lake without running over shallow areas and with minimal potential for turbidity. Also on the site was a pump house for a diesel powered pump that was used for irrigating the citrus grove. A site inspection indicated that there was soil contamination caused by a fuel leak from the pump house. At the request of the Florida Department of Environmental Protection (“DEP”), Orange County removed the pump house and performed environmental remediation on the site, including the removal, incineration and replacement of 21 tons of soil. DEP issued a Site Rehabilitation Completion Order on February 15, 1995, indicating that Orange County had fully remediated the on-site contamination. On May 19, 1994, Orange County submitted to the District a Joint Application for Works in the Waters of Florida. The Surface Water Application was numbered 940519-1, and the Dredge and Fill Application was numbered 940519-1-D. The District sent Requests for Additional Information as to both permits to Orange County on August 24, 1994, and Orange County submitted its responses to December 6, 1995. The District sent further Requests for Additional Information to Orange County as to both permits on January 12, 1996, and Orange County responded to both requests on November 6, 1996. On or about November 7, 1996, Orange County converted its Surface Water and Dredge and Fill Permit Applications to an ERP Application. The District issued an ERP Staff Review Summary on December 26, 1996; an Amended ERP Staff Review Summary on October 30, 1997; and a Second Amended ERP Staff Review Summary on February 13, 1998. In each of the Staff Review summaries, District staff recommended that the proposed permit be issued, subject to attached general and special conditions. THE PROPOSED BOAT RAMP The proposed R. D. Keene boat ramp consists of a 30-foot wide boat ramp, two 6-foot wide concrete walks, one floating dock designed to accommodate the handicapped or anyone else who has difficulty getting in or out of a boat, and a mooring system allowing boats to queue for use of the ramp. No boat slips or fueling facilities are proposed for the boat ramp. The installation of the boat ramp will utilize the Tedder Boat Ramp System, which minimizes the amount of dredging and filling required during construction by placing a factory precast concrete slab directly onto the lake bottom, eliminating the need for dewatering during installation. The ramp will be a double ramp, allowing two boats to load or unload simultaneously. The Tedder System is the latest technology in boat ramps. The ramp will be beneath the boats as they get on and off the trailer, minimizing turbidity even if boats “power load,” i.e., use their engines to push the boats on and off the trailer, as opposed to manually cranking the boat on or off the trailer. In any event, power loading will be prohibited at the R.D. Keene boat ramp. This proposal contrasts with the public ramp at Lake Down, where there is no prohibition on power loading and where the boats load and unload directly over the lake bottom, creating the potential for turbidity. During construction of the R.D. Keene ramp, hay bales and a silt fence will be used to protect against erosion, and two turbidity barriers will be used to isolate turbidity caused by the construction. The erosion control devices will be placed landward of an average 25-foot upland buffer zone. The queuing system will be approximately 230-feet long to prevent shoreline mooring and to provide temporary facilities for waiting boats if the ramp is in use. A post and cabling system will be run along the line of vegetation on the northeast side of the proposed ramp, allowing boats to moor in the vicinity of the ramp. Petitioners correctly state that this queuing system, located on the west side of the ramp, will not prevent shoreline mooring on the east side of the ramp. However, Orange County more credibly contends that there is no reason for boaters to moor in the vegetation on the east side. The queuing system will permit 20 to 30 boats conveniently to moor in the vicinity of the ramp. The queuing system is on the west side of the ramp, as is the parking lot. Dale Mudrak of Orange County credibly testified that the queuing system is sufficient for the anticipated use of the ramp, and there will be no need for boaters to moor in vegetation, as they are forced to do at the Lake Down ramp. Boaters have been forced to improvise at the Lake Down ramp due to the paucity of amenities. Petitioners are wrong to assume that boaters will continue these improvised behaviors at the R.D. Keene ramp, a facility that will provide such basics as a place to moor and to park boat trailers. Pursuant to the special conditions of the District’s Staff Review, absorbent booms will be installed on each side of the boat ramp to absorb oils, greases, and petroleum-based byproducts. Each section of the boom is 10 feet long, five inches in diameter, and, according to the manufacturer’s specification, capable of absorbing six to nine gallons of petroleum-based liquid. Between six and eight booms will be in place at any given time, enough to contain small oil spills at the boat ramp. Randall Armstrong of Phoenix Environmental opined that these booms will be inadequate because they will absorb only those pollutants, particularly hydrocarbons, which they come in contact with on the surface of the water. Mr. Armstrong testified that pollutants farther down in the water column will not be absorbed by the booms, rendering the booms ineffective. Mr. Armstrong’s opinion is not credited, because it assumes that Orange County must guarantee that the booms will absorb all water-borne pollutants in the vicinity of the proposed boat ramp. Having the booms in place will obviously be preferable to not having them in place. If the booms work well, as Orange County has credibly testified they will, it is unreasonable to criticize them because they will not work perfectly. Pursuant to the special conditions of the District's Staff Review, an oil-spill emergency response kit will be maintained at the ramp site at all times. Park staff will be trained in proper use of the emergency kit. Contact numbers will be posted at the site for use by the public, should a spill occur when park personnel are not present. In case of a fuel or oil spill, park personnel are required to take immediate measures to notify the appropriate emergency response agency. The construction of the proposed boat ramp utilizes suitable technology for all stationary installations, including those created for drainage, flood control, or by dredging or filling. The parties agree that the storm water management system and the surface water management system for the project meet all applicable criteria for issuance of the ERP, and that the facility will have no adverse wetland impact. Deed restrictions between Orange County and the predecessor title holder of the property limit the number of boat trailer parking spaces to fifty (50) or fewer at all times for the entire 52-acre site. A total of 50 parking spaces are proposed for construction: 47 regular vehicle trailer spaces, two (2) handicapped spaces, and one space for staff. Posts with cabling will be constructed along the entrance roadway and parking areas to prevent parking of boat trailers in undesignated areas. Signage will also indicate that parking along the driveway and main access road is prohibited. Access to the proposed ramp will be limited to daylight hours. The R.D. Keene Park will be locked at night to prevent public access. Petitioners assert that Orange County has not and cannot guarantee that only 49 boats will enter Lake Isleworth from the ramp at any one time, citing the fact that Orange County does not control access to the ramp by way of Chase Road, which is the access road to the R.D. Keene Park. Petitioners speculate that boaters may park their trailers along Chase Road, causing an excess of 49 users of the ramp at a given time. Absent more than speculation, Petitioners’ assertions cannot be credited nor can Orange County be held at fault for failure to anticipate these remote possibilities. Petitioners are once more observing the improvised behaviors at the Lake Down ramp and assuming they will carry over to the R.D. Keene ramp, even though the latter will have adequate parking adjacent to the ramp. Petitioners also cite the fact that Orange County’s construction plans do not include fencing on the south side of the park to prevent pedestrian access from the Keene’s Pointe subdivision. Petitioners speculate that boaters will put their boats in at the R.D. Keene ramp, park their trailers somewhere in that subdivision, then walk back to the ramp to take their boats out on the lake. Again, Petitioners contend this operates to negate Orange County’s assurances there will be only 49 users of the ramp at a given time. Again, these speculations cannot be credited as facts nor can Orange County be found at fault for failure to anticipate these remote possibilities. Petitioners provided no evidence that this ramp will be so overwhelmed with boaters that the overflow will pour out into the nearby neighborhoods. The boat ramp will be staffed by personnel from the Orange County Parks and Recreation Department. Orange County staff will not be present at all times the boat ramp is open. Orange County has made no commitment to have staff present during all hours of weekend operation. Christi Flood, Manager of the Orange County Parks and Recreation Department, testified that full-time staff will be present on predictably busy weekends. Petitioners contend that the lack of staff present at the ramp during all hours of operation means that Orange County cannot prevent: power loading or unloading; draining, cleaning or washing; discharging of bilge pumps or popping of drain plugs into the water; shoreline mooring or disturbance of shoreline vegetation; fueling at the ramp; watercraft over 27 feet; boats with antifouling paint; or use of the facility by watercraft without permits. However, Petitioners failed to offer hard evidence that the patrols proposed by Orange County will not reasonably enforce the park rules, or support for their assumption that users of the boat ramp will ignore the park rules when staff is absent. Orange County could not guarantee perfect compliance with every rule, even with the full-time staff that Petitioners seek. Orange County staff will be empowered to enforce the park rules with citations, which would include fines or revocation of the privilege to use the boat ramp. Parking restrictions will be enforced by the Orange County Sheriff’s Department. The Butler Chain of Lakes is patrolled by other agencies, including the Florida Game and Fresh Water Fish Commission, Orange County’s Environmental Protection Department, the Windermere Navigational Board, and the Marine Patrol. The special conditions of the District’s Staff Review require Orange County to implement an Operational Plan, the terms of which have been specifically set forth by Orange County in its submissions to the District. To use the ramp, a boater must fill out a Day Use Permit stating that the boater will abide by the park’s rules, and pay a fee. All conditions of the Operational Plan are included in the Day Use Permit. Permitting will be done on the honor system when Orange County staff persons are not actually present. Blank permit forms will be left at the ramp. Boaters will fill out the forms, place their money in an envelope to be deposited in a secure tube provided at the site, then display the permits on their car dashboards while parked at the ramp. Ms. Flood testified that no more than 49 permits will be issued at a given time. A trailer carrying multiple watercraft will be required to obtain a permit for each watercraft. Ms. Flood conceded that more than 49 permits could be issued over the course of a day, as boats come and go from the ramp. As stated in the Operational Plan and the Day Use Permit, the following rules will apply to all watercraft launching at proposed boat ramp: No power loading or unloading. No draining, cleaning or washing at the ramp. No discharging of bilge pumps and opping of drain plugs at the ramp or in the water. No anchoring or parking along shoreline and no disturbance of shoreline vegetation. Use designated queuing system while waiting for ramp availability. No littering. All "No wake" areas must be obeyed (including the No Wake Zone within 100 feet of shoreline, as mandated by Orange County ordinance). No fueling allowed at the ramp for any watercraft. No watercraft over 27 feet will be permitted. No boats with antifouling paint will be permitted. No overnight mooring. The R.D. Keene Park will be closed if the water level falls below 97-feet. Dale Mudrak, the Program Development Supervisor in the Planning and Design section of the Orange County Parks and Recreation Department, testified that 97 feet was chosen to ensure that boats would not use the ramp when the water is too low. Mr. Mudrak stated that when the water elevation is at 97 feet, there is 5-feet of water at the ramp, but only 3-feet of water in the shallow canals leaving Lake Isleworth. He testified that the Windermere Navigational Board recommended closing the ramp when the level reaches 96 feet, but that Orange County conservatively decided to add 1-foot to the recommendation. WETLAND IMPACTS AND MITIGATION The project is expected to result in 0.07 acres of secondary wetland impacts (removal of littoral zone vegetation) above that required for construction. A total of 0.14 acres of wetland impacts will occur from direct construction and secondary wetland impacts. Mitigation for the 0.14 acres of wetland impact includes 0.56 acres of wetland creation. The wetland creation areas are divided into three separate zones (A, B, and D). Both forested and herbaceous species will be planted in each area. The forested species include cypress, red maple, sweet bay, water oak, swamp bay and dahoom. The herbaceous species include soft rush, maidencane, cordgrass, sawgrass, duck-potato, pickerel-weed, and buttonbush. Approximately 1.61 acres of wetland preservation is also provided as mitigation. Pursuant to the special conditions of the District's Staff Review, Orange County will provide a conservation easement. The conservation easement will be placed over the preserved wetlands, mitigation area, and upland buffer zones and deeded to the District. A total of 2.90 acres will be placed under this conservation easement. Elimination and reduction of wetland impacts has been demonstrated. Adverse impacts to aquatic dependent species from wetland impacts are not expected, because the values and functions provided by the proposed mitigation outweigh the wetland loss. AMBIENT WATER QUALITY Orange County has an extensive water quality monitoring program, and has accumulated historic water quality data for over thirty years, including a broad range of physical, chemical and biological parameters, for the Butler Chain of Lakes. In its application, Orange County provided site- specific water quality, sediment, and macroinvertebrate samples. The water quality parameters sampled include four categories: physical properties, inorganics, organics, and microbiology. Orange County also provided historic water quality data for a period of ten years (1984-1994) for Lake Isleworth, Lake Louise (the immediate upstream waterbody), and Lake Tibet-Butler (the immediate downstream waterbody). This data included the year Lake Isleworth was designated as an OFW in 1984 and the year prior to submission of the ERP application. Linda Jennings, the Laboratory Supervisor for the Orange County EPD, testified that the historical data demonstrated that the water quality in the Butler Chain of Lakes has been excellent since at least 1983 and remains so today, even with development and boating steadily increasing over that period. The historical data show some small variances attributable to seasonal and cyclical fluctuations, but no long- term deterioration of water quality in the Butler Chain, despite the heavy recreational use of those lakes during the period in question. The historical water quality data provided by Orange County in this case is far better than is usually submitted to an agency during the application process, even for those projects located in OFWs. This historical data allowed the District to make a more informed decision than usual regarding the long term status of the water quality of the Butler Chain. Orange County provided water quality data for those parameters showing the general water quality, and for those parameters specifically related to boat ramp activity, such as Polynuclear Aromatic Compounds, discussed in more detail below. The historic water quality data demonstrates there have been no major changes in water quality over the ten-year period of record and that, if there is any trend at all, it is a trend toward improved water quality. The water quality of Lake Isleworth and the Butler Chain of Lakes is excellent and has maintained its superior quality since 1983. ORANGE COUNTY’S PAH DATA Orange County provided water quality data from October 1997 and January 1998 for Lake Sheen, Lake Isleworth and Lake Down. Orange County collected and analyzed numerous water and sediment samples for Polycyclic Aromatic Hydrocarbons (“PAHs”), also called Polynuclear Aromatic Compounds, which are compounds found in gasoline and other petroleum products. The presence of PAHs in the water indicates the presence of petroleum products in the water. Starting on October 14, 1997 and continuing through October 20, 1997, Orange County EPD took 84 water samples on seven consecutive days at twelve stations: at the ramp, east edge, and center of Lake Down; at the west edge, center, and east edge of Lake Isleworth; at the ramp, center, and west edge of Lake Sheen; and at the ramp, center, and east edge of Lake Conway, a heavily used Orange County lake outside of the Butler Chain. Orange County EPD also took 28 sediment samples, representing a total of 84 sediment samples, at each of the twelve stations for seven consecutive days, taking composites of the three sites in each of the four lakes: Lake Down, Lake Isleworth, Lake Sheen and Lake Conway. An independent laboratory, Bottorf Associates, Inc., analyzed each of the 84 water samples and the 28 composite sediment samples for 16 different PAH parameters, including naphthalene. This represents a total of 112 samples and a total of 1,792 different PAH tests. Environmental testing laboratories are required by the Florida Department of Environmental Protection to file a comprehensive quality assurance plan (“QAP”) for all field and lab procedures they perform. Among the data included in the filed QAP is a statement of the method detection limit ("MDL"), the lowest level of a particular compound that the laboratory can report on a continuing basis using a particular form of test and a particular piece of equipment, with 99 percent confidence that the value is above zero. The MDL is arrived at by assessing the U.S. Environmental Protection Agency (“EPA”) testing method being used, in conjunction with the particular instrument and the abilities of the analyst, with the goal of stating an MDL that can be achieved on a daily basis in the ordinary operations of the laboratory. The MDL can also be described as that level below which the laboratory cannot be certain whether it is reporting accurate values or whether it is reporting background noise in the sample. The laboratory results reported by Bottorf Associates, using EPA Test Method 610 for PAHs, indicated that every reading for every parameter tested was below the MDL for the following array of PAHs (MDLs are stated in micrograms/liter): Acenaphthene 1.4 Acenaphylene 3.4 Anthracene 4.2 Benzo(a)anthracene 4.0 Benzo(a)pyrene 0.2 Benzo(b)fluoranthene 3.9 Benzo(ghi)prylene 10.0 Benzo(k)fluoranthene 4.0 Chrysene 4.0 Dibenzo(a,h)anthracene 6.8 Fluoranthene 1.7 Fluorene 3.0 Indeno(1,2,3-cd)pyrene 7.5 Naphthalene 1.4 Phenanthrene 1.2 Pyrene 2.4 Orange County’s test results indicated that, as a practical matter, there were no PAHs at any of these locations on the days of testing. In January 1998, Orange County EPD took additional water samples at the following 10 sites: the ramp, east edge, and center of Lake Down; the west edge, center, east edge, and future ramp site on Lake Isleworth; and the ramp, center, and west edge of Lake Sheen. The 10 water samples were tested for 13 different PAH constituents, including naphthalene. All of the constituents tested in January 1998, were below the MDL, confirming the testing done in October 1997. Orange County EPD’s result sheets from the January 1998, sampling included qualifier identifier codes to show that the data was being reported at a level below the MDL. Essentially, the codes indicate that no PAHs could be detected even at a level of one-half the MDL on file with DEP. Orange County’s data indicates that neither the water nor the sediments at Lake Down, which has had a public boat ramp for decades, show any reliably detectable levels of PAHs. Orange County’s data indicates that neither the water nor the sediments from Lake Sheen, which has a boat ramp for a membership club with a fueling facility and dock, show any reliably detectable levels of PAHs. Orange County’s data indicates that neither the water nor the sediments from Lake Conway, which has a heavily used boat ramp, show any reliably detectable levels of PAHs. PETITIONERS’ PAH DATA Petitioners introduced a study performed by Mote Marine, a state certified research laboratory, assessing the levels of hydrocarbon contamination associated with boat launching and loading activities at the Lake Down and Lake Sheen boat ramps. Specifically, Mote Marine sampled for naphthalene, one of the PAHs that is an indicator of petroleum discharges into the water body. Mote Marine collected water samples at the boat ramp, the opposite shoreline, and the center of Lake Down and Lake Sheen. Mote Marine also collected water samples at the site of the proposed boat ramp and near a canal on Lake Isleworth. All of these samples were taken during Labor Day weekend, between August 31 and September 4, 1995. Mote Marine’s QAP indicates that its MDL for naphthalene under either EPA Method 625 for Base/Neutrals and Acids or EPA Method 610 is two micrograms per liter. Mote Marine employed EPA Method 625. Orange County used EPA Method 610. The values for naphthalene reported by Mote Marine were expressed not in terms of micrograms, but in terms of nanograms. A nanogram is one-thousandth of a microgram. Of the 72 individual water samples collected by Mote Marine at Lake Down, Lake Sheen, and Lake Isleworth over the 1995 Labor Day weekend, only one registered a naphthalene concentration above the two micrograms per liter MDL in Mote Marine’s QAP. The majority of the measurements were reported as less than 10 nanograms per liter. Dr. Richard Pierce, the Director of Research at Mote Marine, testified that the QAP on file at DEP is a broad based plan encompassing all the various analyses performed by the laboratory, in effect a “worst case scenario” setting a high MDL that is easy to meet in all cases. Dr. Pierce also testified that DEP and the U.S. EPA allow a laboratory to vary from its filed MDL on specific projects, and that his laboratory was able to establish an MDL of six nanograms per liter for this particular project. Dr. Pierce testified that three major factors are involved in establishing a project specific MDL. The first factor is how “clean” the sample is, i.e., how many interfering compounds are present that may elicit a response from the detector being used. The second factor is the quality of the instrumentation, and the third is the skill of the analytical chemist performing the analysis. Dr. Pierce’s factors coincide with the factors listed by Ms. Jennings of Orange County as to the considerations involved in establishing a comprehensive MDL. Mote Marine did not file a Quality Assurance Project Plan for this project. Dr. Pierce testified that such a filing was not required in order to apply a lower MDL for this project. Orange County contended that such a filing was necessary, but offered no specific reference to a rule that would have required Mote Marine to file a Quality Assurance Project Plan under these circumstances. The undersigned could discover no DEP rule that unequivocally would require the filing of a Quality Assurance Project Plan for the activities conducted by Mote Marine. Thus, Dr. Pierce’s expertise as Director of Research is credited and it is accepted that Mote Marine could establish a project specific MDL in this instance, and properly did so. A chart in the Mote Marine report, purporting to show the average naphthalene concentrations in the subsurface water as determined by Mote Marine’s sampling, contained several inaccuracies. The chart stated that the measurements were being reported in terms of micrograms, when in fact the numbers represented nanograms. In two places, the average concentrations were miscalculated, either because the correct factors were not included or due to simple mathematical error. The Mote Marine report also provided no information on the actual locations of the testing sites in terms of latitude and longitude, thus making it difficult if not impossible to check or repeat the sampling. The problems with methodology and with simple calculations make it difficult confidently to rely on the Mote Marine report as regards naphthalene. However, even if the Mote Marine report had been impeccably accomplished, its results would not establish a definite correlation between naphthalene contamination and boating activities. Petitioners assume that the concentrations of naphthalene that Mote Marine found in the vicinity of the Lake Down and Lake Sheen boat ramps are attributable to boating activity, ignoring the fact that neither of these boat ramps has a storm water management system. Both the Lake Down and Lake Sheen ramps directly adjoin roads, and have no buffering system whatever for storm water runoff from those roads. There was rain on the Butler Chain during the Labor Day weekend of 1995, when Mote Marine took its samples. In fact, a tropical depression had only recently passed through the Orlando area. Dr. Pierce could not determine the relative input of contaminants from automobiles and from boats. Dr. Pierce had no opinion on whether the amount of naphthalene found by his laboratory is environmentally or ecologically significant. Dr. Pierce had no opinion as to whether hydrocarbon contamination is degrading the water quality of Lake Down. Randall Armstrong, a consultant with Phoenix Environmental, opined that the reported naphthalene levels would degrade the water quality, but admitted that he was not an expert in chemistry and was ignorant of Mote’s methodology. Even accepting all of Petitioners' assertions as accurate, it cannot be found that the proposed R.D. Keene ramp and its surface water management system would lead to the introduction of petroleum products into the water column in amounts sufficient to degrade the water quality. Dr. Douglas Durbin, a Senior Ecologist with Biological Research Associates and an expert in lake ecology, defined degradation of water quality as a negative and permanent change in the ecological or recreational status of a water body. Dr. Durbin testified that, even if the Mote Marine data were accurate and reliable, those levels of naphthalene were lower by at least two orders of magnitude than levels that could potentially affect even the most sensitive organisms, as those affective levels have been established by the United States EPA. This is not necessarily the standard for determining degradation, but is indicative that the levels of naphthalene under discussion are infinitesimal. Mr. Armstrong of Phoenix Environmental contended that the impact to water quality by an activity need not be permanent in nature or even ecologically significant in order to violate the water quality standards of the District. Mr. Armstrong's rationale is that any "measurable" lowering of the water quality of the OFW violates the rules, even if that measurement must be accomplished in nanograms and cannot be shown to have any effect whatever on any of the biota of the water system. This rationale would essentially shut down all new activities on OFWs, and is at odds not only with the District's interpretation but with the views expressed by Mr. Armstrong himself on other projects. Dr. Durbin's opinion regarding the nature of degradation is credited over that of Mr. Armstrong. WATER QUALITY MODELING AND IMPACT OF THE PROJECT After establishing the ambient water quality, Orange County performed water quality modeling to determine if the ambient water quality would be lowered by the construction and operation of the boat ramp. The number of boat ramp users will vary based on various factors including temperature and day of the week. The ramp is sized for 144 launch events per day, meaning that a maximum of 72 boats could use the ramp on a given day. Mr. Mudrak testified that the ramp was sized so that parking, not the size of the ramp, will be the limiting factor in ramp usage. The ramp will have 50 parking spaces, one of which will be reserved for Orange County staff use and two of which will be designated for handicapped use. Robert Robbins, the District’s permitting expert, testified that the District’s analysis generally concerns a determination of the amount or rate of input of pollutants that a lake can assimilate without exceeding its assimilation threshold, i.e., lowering the ambient water quality. Mr. Robbins further testified that this determination was unnecessary here because the District found a negative answer to a threshold question: would a boat ramp and 50 boat parking area under any circumstances exceed the assimilation threshold? As part of a grant project that involved a water quality model and water management study, Parsons Engineering Science, Inc., collected data on the geometric characteristics of the lakes, the topographic and ecological characteristics of the basins, and the existing land uses to develop a hydrodynamic and water quality model of the Butler Chain of Lakes, hereafter referred to as the “BCL model.” The BCL model provided a conservative hydrodynamic analysis of the rate of input and dilution of pollutants, and indicated that there is no potential for the accumulation of pollutants in the Butler Chain of Lakes as a result of the project. Parsons Engineering considered the chemical and physical properties of the gasoline constituents and ran the BCL model using the pertinent chemical and physical parameters. The BCL model took into consideration volatilization and adsorption of hydrocarbons from the water. In an effort to reach a conservative result, the BCL model did not include the loss of gasoline constituents through biodegradation or photolysis, processes in which the hydrocarbons dissipate over a longer period of time. The BCL model predicted that no accumulation of gasoline constituents, including naphthalene, would occur in Lake Isleworth at a level equivalent to the expected daily usage of the proposed boat ramp, an average of 25 boats per day. The BCL model predicted that no accumulation of gasoline constituents, including naphthalene, would occur at a constant level of 77 boats using the proposed ramp every day, triple the expected daily usage and five boats more than the capacity of the proposed ramp. At a level equivalent to the expected daily usage, the BCL model predicted that the daily concentration of the PAHs benzene, toluene and naphthalene, would be below the laboratory detection limits. At a level that is triple the expected daily usage, the BCL model predicted that the daily concentration of the PAHs benzene, toluene and naphthalene would be below the laboratory detection limits. In summary, the BCL model predicts that even if the proposed ramp had a capacity of 77 boats per day rather than 72, and if 77 boats were served by the ramp every day of the year, rather than the actual anticipated average of 25 boats, there would be no degradation of water quality caused by introduction of hydrocarbons into the water of Lake Isleworth. Dr. Kenneth Echternacht, a consultant engineer with Phoenix Environmental, also performed a hydrographic study to determine flushing patterns for Lake Isleworth in the vicinity of the proposed boat ramp. Dr. Echternacht testified that, without good flushing, continuous loads of pollutants will build in the water body, lowering water quality. “Flushing” is the time required to reduce the concentration of a “conservative” pollutant to ten percent of its original concentration. A conservative pollutant is one that does not erode, decay, or go through any biological update process. Dr. Echternacht testified that standard engineering practice in Florida is to assume that a flushing time in excess of four days will result in the accumulation of materials. Section 4.2.4.3 of the Basis of Review states that a four day flushing time is “desirable” for docking facilities. The project at issue is not a "docking facility" as that term is used in Section 4.2.4.3, hence there is no requirement or preference in law for a four-day flushing period. Dr. Echternacht’s study concluded that the minimum flushing time for the proposed boat ramp on Lake Isleworth will be 26 days. Dr. Echternacht’s study was limited to a strict one- dimensional appraisal of the physics of Lake Isleworth. Dr. Echternacht professed no expertise in chemistry, and he did not take into account the chemical properties of the pollutants at issue in this proceeding. He assumed that the pollutants would be “conservative,” when in fact petroleum constituents are volatile, and will disappear through volatilization, adsorption, biodegradation, and photolysis. Petitioners failed to establish any connection between Dr. Echternacht’s flushing analysis and the Mote Marine study on PAHs. Dr. Echternacht’s analysis is thus of little practical significance, because no evidence was adduced to show that a 26-day flushing time will result in the accumulation of PAHs and a degradation of water quality, when the PAHs are introduced in the nanogram amounts reported by Mote Marine. The Lake Down ramp has been heavily used by the public for many years, directly adjacent to a reasonably busy road and without any surface water management system, and still the only traces of naphthalene found by any laboratory were measured in nanograms, with no indication that these pollutants will accumulate when introduced in those trace amounts. In summary, the evidence regarding naphthalene concentrations is insufficient to establish that the proposed R.D. Keene ramp will have any adverse effect on the water quality of Lake Isleworth specifically or the Butler Chain generally as regards petroleum contamination. TURBIDITY At the same time they collected water samples regarding PAHs, both Orange County and Petitioners collected turbidity samples. Turbidity is a means of quantifying particular matter in water that absorbs light or otherwise keeps light from passing through the water. It may have natural causes, such as phytoplankton cells or erosion after a storm, or it may be caused by human activity in or adjacent to water bodies. Turbidity is measured in nephelmetric turbidity units, or “NTUs.” The historical water quality data shows a turbidity range of 0.3 NTUs to 2.2 NTUs for Lake Isleworth. These are low levels of turbidity, indicating very clear water in Lake Isleworth. Dr. Durbin testified that natural turbidities can run into the hundreds or even thousands of NTUs, depending on what is happening in the watershed, and that turbidity is not considered a problem until it reaches levels at which there is some effect on the organisms that live in the system. Both Dr. Durbin and Ms. Jennings testified that, in assessing measurements in NTUs, the numbers to the right of the decimal are unreliable; in other words, a measurement of 2.0 NTUs should be considered as virtually identical to a measurement of 2.40 or 2.80 NTUs. In the period from October 14 through October 20, 1997, Orange County took turbidity samples from Lake Down (east edge, center, and boat ramp area), Lake Isleworth (west edge, east edge, and center), Lake Sheen (west edge, center, and boat ramp area), and Lake Conway (east edge, center, and boat ramp area). Seven samples were taken at each location, making a total of 84 turbidity samples. The highest individual measurement was 5.40 NTUs, measured at the Lake Down boat ramp on October 15. This is itself a low level. Dr. Durbin testified that no concerns are raised until turbidity measurements reach 30 NTUs, and that short-term measurements in the hundreds or even thousands of NTUs may cause no harm to the biota of a system. Further, in fewer than 24 hours this measurement of 5.40 NTUs had settled out to a measurement of 1.60 NTUs. None of the other 83 measurements even reached the level of 2.0 NTUs, all within the historical background turbidity range for the Butler Chain of Lakes. No increase in turbidity can be traced to boating activity in the October 1997 sampling. The samplers’ field notes indicate whether and how much boating activity was occurring as the samples were being taken, and no causal connection can be drawn between boating activity and turbidity. Orange County EPD took further turbidity samples on January 23, 1998. These samples were taken in the Wauseon Bay canal, and were an effort by Orange County to deliberately follow in the wake of boats and obtain the maximum possible amount of turbidity. None of the 8 measurements taken in this sampling showed turbidity in excess of the background turbidity, considering Ms. Jennings undisputed testimony that NTUs may be reliably measured only in whole numbers. The measurements taken in the wake of boats ranged from 1.18 NTUs to 1.71 NTUs, as compared with background measurements ranging from 1.05 NTUs to 1.13 NTUs. Phoenix Environmental, in conjunction with Mote Marine, took turbidity samples at the Lake Down boat ramp during the Labor Day weekend of 1995. These samples indicated background turbidity from 1.2 NTUs to 2.5 NTUs, and showed turbidity spiking to levels as high as 29.0 NTUs during extensive launching activity, particularly when the boat operators used the “power loading” technique discussed above. “Power loading” will be prohibited at the proposed R.D. Keene ramp. Further, the Tedder system would minimize turbidity even if boat operators violated the prohibition, because it would eliminate prop dredging directly on the lake bottom. As notable as the turbidity spikes in the Phoenix/Mote samples is the rapidity with which the turbidity diminished. The aforementioned measurement of 29.0 NTUs had diminished to 2.8 NTUs within eight minutes. This is consistent with the testimony of Ms. Jennings that the nature of the sediments in the Butler Chain is such that turbidity settles out very quickly. Michael Henry, a senior chemist at Mote Marine, concurred that three minutes is enough time for boat ramp sediments to clear on Lake Down. The turbidity sampling by Phoenix/Mote over the Labor Day weekend of 1995 was not conducted with an approved quality assurance and control plan. Mr. Armstrong thus made the decision that further turbidity sampling should be done, using the proper protocols. The second turbidity sampling by Mote Marine, performed on October 26, 1997, and corrected on February 13, 1998, showed values much closer to those found in the Orange County sampling. The highest properly recorded value was a reading of 6.54 NTUs at the Lake Down boat ramp, and this value settled to 1.5 NTUs within eight minutes. As to this second Mote Marine study, Orange County contends that Mote Marine used bottles for taking samples that were not laboratory cleaned, did not properly calibrate the equipment, used a blank test sample which their records indicated had expired, and improperly influenced the results of the sampling by wading out to the sample area. None of these contentions is supported by the evidence. Mote Marine ran out of laboratory cleaned bottles before it had completed sampling, and thus was required to field clean and reuse 15 bottles. The weight of the evidence is that Mote Marine properly field cleaned those bottles in accordance with the section of its filed QAP dealing with cleaning procedures for equipment not being used for trace analyses. Orange County’s criticisms might have been well taken had Mote Marine been collecting samples for naphthalene testing, but not for collection of turbidity samples. Mote Marine’s turbidity meter was bench calibrated by a senior chemist at Mote Marine about four days prior to the actual testing. Continuing calibration verification (“CCV”) was performed in the field. Mr. Henry testified that the meter was performing perfectly, and that it is acceptable practice to use a meter over several days without a bench calibration, provided it has not malfunctioned during a CCV. The weight of the evidence supports a finding that Mote Marine properly calibrated its turbidity meter. In calibrating the meter, the senior chemist employs a formazin standard, which is diluted to a specific concentration, placed in the meter and read, generating a calibration curve to which the rest of the unknown samples are calibrated. The calibration was performed on October 23, 1997, but the report prepared by the chemist indicates that two of the formazin standard dilutions used had expiration dates of April 23, 1997. Orange County contends that the use of these apparently expired formazin standards compromised the calibration and rendered unreliable the turbidity sampling conducted by Mote Marine. Mr. Henry testified that the formazin standard in question was purchased and received via express delivery on October 23, 1997, the day the calibration was conducted. The chemist performed the dilutions, which at the levels in question had a six month expiration date. Thus, these dilutions would have had an expiration date of April 23, 1998. Mr. Henry testified that the chemist simply made an error in writing down “4/23/97” rather than the correct date of “4/23/98.” Mr. Henry’s explanation is plausible and is accepted. Mote Marine did not use expired calibration blanks. Mr. Henry testified that the sampling was accomplished by wading into the water to about shin height, opening the lid to the sample bottle, stepping forward, rinsing the bottle, stepping forward again, then collecting the sample. Mr. Henry stated that this was an acceptable procedure. His presence in the water did not itself cause turbidity because sediments do not kick straight up from the bottom, and his reaching out to collect the sample eliminated any potential for collecting samples influenced by his presence. Ms. Jennings correctly pointed out that the better sampling method would involve standing on shore or in a boat and using an extension pole to take the sample, eliminating any remote possibility of taking a sample tainted by sampler-caused turbidity. However, the weight of the evidence, including the essential similarity of results for all the reliably conducted turbidity samplings introduced in this case, is that the method used by Mr. Henry did not influence the results of the October 1997 sampling conducted by Mote Marine. However, Petitioners failed to establish that the minor and very short-term elevations in turbidity found around the Lake Down boat ramp constituted a degradation of water quality, or would be repeated at the proposed R.D. Keene boat ramp. There are many distinctions between the existing Lake Down ramp and the proposed R.D. Keene ramp. The Lake Down ramp has no surface water management system. The storm water runoff from the adjacent Conway- Windermere Road and from the boat ramp itself flows directly into Lake Down in the vicinity of the boat ramp. In contrast, the proposed R.D. Keene boat ramp will provide dry retention for up to a 25-year, 24-hour storm event, so that unfiltered storm water will not reach the lake system. The Lake Down ramp has no accessory dock, which can reduce turbidity caused by boaters stirring up the bottom when climbing into the boat. The proposed R.D. Keene facility will have such a dock. The Lake Down ramp does not have a concrete ramp extending beneath the launching point to minimize dredging the bottom. The proposed R.D. Keene facility will have such an extended concrete ramp. At the Lake Down ramp, boaters must moor their boats along the shoreline while taking their vehicles and trailers to the parking lot. The proposed R.D. Keene facility will have a queuing system to prevent the erosion and turbidity caused by shoreline mooring, which will be prohibited. There is no prohibition on power loading at the Lake Down ramp, which also is not deep enough to allow boats to float easily on and off their trailers. Power loading will be prohibited at the proposed R.D. Keene ramp, and in any event will not be necessary because the depth of the water and the design of the ramp will enable boats to float on and off their trailers. In conclusion, it is found that none of the samplings taken by any of the parties in this proceeding establishes that the water quality of Lake Isleworth specifically or of the Butler Chain generally will be degraded or lessened by turbidity caused by boating activity around the proposed R.D. Keene boat ramp. SECONDARY AND CUMULATIVE IMPACTS Based on the Operational Plan, the design, the water quality sampling and modeling, the District determined that there will be no adverse secondary impacts from the proposed boat ramp or associated activity. After considering all existing boat ramps, marinas and other projects on the Butler Chain of Lakes, the District concluded that the proposed R.D. Keene boat ramp will not have an accumulation of impacts and pollutants in its home lake system and does not have the potential to contribute any cumulative impacts throughout the Butler Chain of Lakes. At the R.D. Keene Park, Orange County owns 1,780 feet of shoreline. Existing rules provide an exemption that would allow one boat dock for every 65 feet of shoreline, meaning that up to 27 exempt docks could be placed along this 1,780 feet of shoreline if it were in private hands and not subject to the conservation easement that is being granted by Orange County. 166. The water quality sampling performed in this case demonstrated that existing projects and activities have not resulted in an accumulation of impacts to the Butler Chain of Lakes. The historic water quality data demonstrate there have been no major changes in water quality over the 10-year period of record and that the trend is, if anything, toward improved water quality. The water quality is excellent and has maintained its superior quality since 1983, even though residential development and boat usage on the Butler Chain of Lakes has steadily increased over the last ten years. There is no boat ramp currently located at the property owned by Orange County on Lake Sheen. The Lake Sheen site has three homes and two docks on it at present. The District has no applications pending for similar projects that would be considered as part of the cumulative impact review. No applications for a boat ramp at Lake Sheen have been submitted by Orange County nor is there a boat ramp currently under construction at that site. No applications for a public boat ramp, other than the one at issue in this proceeding, have been submitted to the District by Orange County. The east side of the Butler Chain of Lakes is fully developed. There is no evidence of any Development of Regional Impact that would include a boat ramp for the west portion of the Chain. The zoning and land use designations of the property owned by Orange County on Lake Sheen are rural country estate on part of the property and low density residential on the other part of the property. There is no evidence that the Lake Sheen site is under review, vested or approved as a Development of Regional Impact. PUBLIC INTEREST TEST As further described in the Conclusions of Law below, an applicant for a project located in an OFW must provide reasonable assurances that the project is clearly in the public interest. The public interest test weighs and balances seven factors, as listed in the subheadings below. Extensive testimony was elicited from several expert witnesses who offered their applications of the public interest test. Anna Hacha-Long, Manager of Orange County EPD, and Pamela Thomas, Senior Environmental Specialist of Orange County EPD, both concluded that the proposed project was clearly in the public interest. Dale Mudrak, Orange County’s construction, design and project management expert, concluded that the proposed project is clearly in the public interest. Dr. Douglas Durbin, Orange County’s expert in limnology, ecology, water quality and permitting, concluded that the proposed project is clearly in the public interest. Robert Robbins, Director of the Natural Resource Management Division of the District, concluded on the District’s behalf that the proposed project is clearly in the public interest. The only expert who concluded that the project is not in the public interest was Randall Armstrong of Phoenix Environmental. PUBLIC HEALTH, SAFETY, WELFARE OR PROPERTY OF OTHERS The parties stipulated that the proposed boat ramp facility will not adversely affect the public health. The proposed ramp will improve public safety as follows: The proposed ramp, centrally located in the Butler Chain, will provide quicker access for emergency rescue in the case of injuries to boaters or skiers. The proposed ramp should somewhat alleviate the traffic concern at the Lake Down ramp by shifting some traffic away from the Lake Down ramp. The proposed ramp will enhance public welfare by: increasing the recreational opportunities to the Butler Chain of Lakes; allowing access to the Butler Chain of Lakes by handicapped and disabled individuals; and the clean up of diesel fuel contamination that Orange County has already performed on the site. Orange County EPD performs extensive aquatic plant management activities on the Butler Chain, including spraying for harmful exotic plants. If Orange County were to lose access to the Butler Chain -- a real possibility should the proposed project not be built and the lease for parking at the Lake Down ramp expire -- it could also lose public grant money for aquatic plant management. The proposed project will not impact the property of others because: Orange County owns the land on which the ramp will be built, and the State of Florida owns the water into which the boats will be launched. Orange County EPD has received no complaints from property owners related to the existing use of the Butler Chain of Lakes by boaters. No-wake zone regulations prohibit high speed boating activities within 100 feet of the shoreline, protecting boaters and the property of adjacent landowners. The area is extensively regulated by both the Butler Patrol and full-time Orange County EPD staff. The canals connecting the lakes are wide enough that there will be no safety problems related to boating through the canals. CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS Orange County is providing 0.56 acres of mitigation by way of wetland creation, which offsets not only the 0.07 acres of direct wetland impact from construction and 0.07 acres of secondary impacts caused by removal of littoral zone vegetation, but also the District’s doubling of the usual two-to-one mitigation ratio for wetlands impacts. The District doubled the usual mitigation ratio as a conservative measure to account for the slight possibility of boats disturbing the area in the vicinity of the boat ramp. The parties have stipulated that the proposed boat ramp facility will not adversely affect the conservation of endangered species or their habitats, will not affect the conservation of threatened species or their habitats, and will not adversely impact gopher tortoises. The proposed project benefits the conservation of fish and wildlife or their habitats. Some habitat will be impacted by the construction of the boat ramp, but Orange County is providing mitigation many times larger than the area being developed, and is placing 1.61 acres of wetlands under a conservation easement to ensure that the land cannot be altered from its natural state. A total of 2.90 acres of wetland preservation, wetland creation, and upland buffer areas will be placed under conservation easement. Thus, habitat will enjoy a net enhancement from the project. Multiple evaluations of plant and animal parameters in the ecosystem led the District reasonably to conclude that the increase in habitat and habitat diversity due to the mitigation and conservation easements will provide net benefits to wildlife. The proposed boat ramp and associated activity will not cause any negative impacts on fish and wildlife and their habitats, except for the unavoidable immediate impacts caused by the footprint of the ramp itself. As described above, these impacts are addressed in Orange County’s mitigation plan. Orange County EPD has not seen a decline in fish populations, nor any fish kills, nor any type of damage due to increased turbidity from natural or man-made causes in the Butler Chain of Lakes. It is reasonable to find that this project is unlikely to lead to such impacts. NAVIGATION OR FLOW OF WATER OR HARMFUL EROSION OR SHOALING The parties have stipulated that the proposed boat ramp and associated activities will not adversely affect the flow of water. There is no evidence of harmful erosion or shoaling from the existing boat traffic, even though the traffic has steadily increased over the years. Orange County EPD has not seen sand bar formation or erosion at first hand, nor has it received complaints about erosion. Orange County has not been required to dredge the canals interconnecting the lakes since the 1980s. The proposed project will not cause harmful erosion or shoaling because the dimensions of the canals are sufficient for boats to pass, and the edges of the canals are well vegetated. Mr. Armstrong's contrary testimony, based on a single visit to the Butler Chain over the past ten years, is not credited. It is reasonable to believe that the ramp will reduce traffic through the canals by providing a public point of access that is more centrally located than the current one at Lake Down. Boaters will be able to enter the Butler Chain at a point nearer their intended destination. At the very least, the flow of boating traffic should be more evenly distributed, as all boats entering the Butler Chain will no longer be forced to proceed through the canals connected to Lake Down. The main cause of harmful erosion on the Butler Chain is residents’ failure to use turbidity or erosion barriers when they pull up aquatic or semi-aquatic plants along the shoreline. This project is thus unrelated to the true causes of turbidity in the Butler Chain. The proposed project is designed and will be managed to minimize the potential for dredging or erosion from boat propellers, as follows: The boat ramp itself is designed to accommodate two boats launching simultaneously. The boat ramp has adjacent docks and structures so that boats can raft to these structures during launching and loading, rather than running into the shoreline or tying to vegetation. The proposed project will also have a 230-foot long queuing system for mooring boats on the west side of the ramp. The queuing system will also act as a barrier to prevent boaters from using the shoreline to access their vehicles. The Operational Plan prohibits power loading and unloading, minimizing the potential for erosion at the ramp. Officer Jeffrey Hudson of the Florida Game and Fresh Water Fish Commission and the Windermere Water and Navigational Control District, regularly patrols the Butler Chain of Lakes. He foresees no navigational problems arising from the placement of the boat ramp, because of the no-wake zones and because people will be launching from a cove that gives them a good view of traffic in the lake before they enter. Because of the size of the Butler Chain of Lakes, there is a natural timing factor that will regulate the sequence of boaters returning to the proposed ramp. Even if a large storm arose suddenly, all the boats in the water would not arrive at the proposed R.D. Keene ramp at once because of the differing amounts of time it would take boats to arrive from their dispersed positions on the Butler Chain. The only expert witness who testified that the third factor weighed negatively against the public interest was Mr. Armstrong of Phoenix Environmental. Mr. Armstrong’s testimony that the connecting canals are too narrow for boats to comfortably pass each other is rejected as unsupported by the weight of the documentary and other testimonial evidence. Mr. Armstrong’s characterization of the potential for increased boating traffic in the southern portion of the Butler Chain as a negative factor is likewise rejected. Providing increased recreational access for the general public is one of the chief positive aspects of this project. Mr. Armstrong also expressed concern that the ramp’s location on a small, pass-through lake, and its placement therein, would mean that boats coming into or away from the ramp would be crossing directly into the path of boats passing through. Officer Hudson’s contrary testimony that the placement of the new ramp will not cause navigational or safety problems is accepted as based on superior knowledge of the Butler Chain of Lakes and greater expertise in boating and navigational safety. Mr. Armstrong testified that boat wakes would cause erosion. He testified that on his visit to the Butler Chain, he saw banks in canals undercut and roots exposed in areas where the vegetation was not heavy. As noted above, Mr. Armstrong has been on the Butler Chain once in the past ten years. Pamela Thomas of Orange County EPD, who has spent hundreds of hours studying the Butler Chain and regularly boats on the lakes in connection with her job, testified that the main cause of erosion is the clearing of vegetation by residents who wish to have beaches. Boat wakes cause few problems, particularly in the canals, because of the no-wake zones and their strict enforcement. Ms. Thomas’ testimony is accepted as based on superior knowledge and expertise regarding erosion in the Butler Chain of Lakes. FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY The January 1984 DEP report recommending designation of the Butler Chain of Lakes as an OFW cited the need for increased public access to the Butler Chain. The report specifically noted the fact that there was only one public boat ramp on the Butler Chain and that this ramp had limited parking. This situation has remained unchanged in the intervening 14 years. The Lake Down ramp remains the only point of access for the general public to the Butler Chain of Lakes, and provides only limited access to the entire chain during the periods when Lake Down is waterlocked by the low bridge over the Wauseon Bay canal. The proposed boat ramp will enhance the fishing and recreational value by providing increased and easier public access to the Butler Chain of Lakes for fishing and recreational purposes. Even though "marine” productivity is typically applied to saltwater rather than freshwater systems, the proposed project will actually enhance productivity due to the amount of mitigation. Mr. Armstrong of Phoenix Environmental contended that this factor should be viewed negatively because there will be less opportunity for fishing in the cove immediately adjacent to the proposed boat ramp, due to the launching and loading activity. It may be true that providing greater public access will inconvenience those who already have access to the Butler Chain by other means, but it is implausible to suggest that improved public access be considered a negative aspect of the proposed project. TEMPORARY OR PERMANENT The proposed boat ramp facility will be permanent. The increased mitigation, conservation easement and public access are also permanent. HISTORICAL AND ARCHAEOLOGICAL RESOURCES The proposed boat ramp facility will neither adversely affect nor enhance significant historical and archaeological resources. CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY The proposed ramp will be placed in a section of the lake shoreline that was previously dredged out as a canal. Thus, Orange County has chosen an area already impacted by development rather than an environmentally pristine location for the boat ramp. The site was originally used as a citrus grove and will be enhanced by the wetlands creation. When Orange County acquired the site, it had a pump house with a leaking diesel fuel pump that was contaminating both the soil and Lake Isleworth. Orange County performed environmental remediation on the site preparatory to installing the proposed boat ramp. The removal of 21 tons of contaminated soil is a positive factor in terms of fish and wildlife. Petitioners attempted to minimize this aspect by arguing that Orange County, as the owner of the contaminated property, would have been required by law to perform the remediation regardless of whether the boat ramp is ever built. This argument is rejected, because the weight of the evidence is that Orange County purchased this property for the express purpose of placing a park and boat ramp on it. Orange County’s ownership of the property, and the consequent duty to remediate the contamination, are inextricably linked with Orange County’s plans to build a boat ramp on the site. The mitigation associated with the proposed ramp will increase wetland habitat and thus improve the ecological value of the site, another positive factor under this heading. In summary, every judgmental factor in the public interest test weighs in favor of a finding that this project is clearly in the public interest. ALTERNATIVE SITES Subject to the relevance objections of the District and Orange County, on which a ruling was withheld at the time of hearing, Petitioners offered evidence regarding Orange County’s consideration of boat ramp sites other than the R.D. Keene site. Orange County owns property on Lake Sheen, a large lake on the southern end of the Butler Chain of Lakes. Orange County intends to construct a boat ramp on this property, as part of its strategy to enhance public access to the Butler Chain by way of offering public ramps in the northern, central, and southern portions of the lake system. The District is and has been aware that Orange County eventually plans to build a boat ramp on Lake Sheen, though the formal permitting process has yet to commence. Orange County EPD has estimated the cost of developing the R.D. Keene boat ramp at $1,068,000, and the cost of developing the Lake Sheen ramp at $560,000. Orange County has prepared a scope of services for the design of the proposed Lake Sheen ramp, selected a design firm, issued a notice to proceed with design. The design firm is currently designing the Lake Sheen ramp. Petitioners assert, and the District admits, that the District did not consider the planned Lake Sheen ramp as an alternative to the R.D. Keene site. For reasons explained in the Conclusions of Law below, the District was not required to consider alternatives to the proposed R.D. Keene ramp. The evidence presented by Petitioners regarding the planned Lake Sheen ramp is irrelevant insofar as Petitioners seek to establish an obligation on the part of the District to review alternative project sites to the one proposed by Orange County and/or to require Orange County to modify its ERP application to propose a different site.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Governing Board of the South Florida Water Management District enter a Final Order issuing Environmental Resource Permit No. 940519-1 to Orange County, subject to the general and special conditions set forth in the District's Staff Review Summaries. DONE AND ENTERED this 29th day of June, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: R. Duke Woodson, Esquire Mary A. Doty, Esquire Foley & Lardner Post Office Box 2193 Orlando, Florida 32802-2193 Linda Brehmer Lanosa, Esquire Assistant County Attorney LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1998. Orange County Attorney’s Office 315 East Robinson Street, Suite 650 Orlando, Florida 32801 William Palmer, Esquire Palmer & Palmer, P.A. 3117-B Edgewater Drive Orlando, Florida 32804 Julie Kendig-Schrader, Esquire John Fumero, Esquire Douglas MacLaughlin, Esquire Office of Counsel, South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406
Findings Of Fact Petitioner is a child assigned to Respondent's Youth Services Program. He was attending the Palm Beach Marine Institute/Florida Ocean Science Institute (FOSI) and living at home prior to January 13, 1983, when he was transferred to the Youth Development Center (YDC) in Okeechobee, a more restrictive facility. Petitioner was charged with violating his supervision agreement with Respondent by failing to attend classes at FOSI on January 4, 5, 6 and 7, 1953. A hearing before Respondent's program specialist was held where Petitioner was found guilty of the alleged violation and ordered to be transferred to the YDC. Petitioner concedes he was absent without cause in November, 1982. He had further absences in December due to illness where the required medical excuse was not timely furnished. As a result of the absences and apparent personality conflict with his instructor, Petitioner was told not to return to FOSI by an official of that facility on January 3, 1983. Therefore, Petitioner's absences on January 4, 5, 6 and 7, 1983, were not in violation of his supervision agreement.
Recommendation In consideration of the foregoing, it is RECOMMENDED: That Respondent enter a Final Order correcting Petitioner's record to reflect that his transfer to the Youth Development Center was not based on violation of his supervision agreement or other misconduct. DONE and ENTERED this 13th day of April, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1983. COPIES FURNISHED: Ms. Joan Solomini 3017 Grove Road Boynton Beach, Florida 33435 K.C. Collette, Esquire District IX Legal Counsel Department of Health and Rehabilitative Services 111 Georgia Ave., 3rd Floor West Palm Beach, Florida 33401 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether respondent discriminated against petitioner on account of his race in terminating his employment as a glass bottom boat captain at Silver Springs? Whether Emma Hawkins should be allowed to intervene? If so, whether respondent discriminated against intervenor on account of her race in failing to promote and ultimately in discharging her?
Findings Of Fact On January 1, 1989, FLAC acquired Silver Springs and Wild Waters, an adjacent tourist attraction dating to 1977 or 1978. In or near Ocala, Florida, both properties had belonged to Florida Leisure Acquisitions, Inc., who had acquired them from American Broadcasting Company some five years earlier, in a "leveraged buyout." FLAC also acquired Weeki Wachee in 1989. T.449. Thomas Cavanaugh, who started as a vice-president and general manager in 1973, survived both changes in ownership, and had effective control over a unified personnel system until his departure in 1990. As late as 1973, everybody who worked at Silver Springs as a glass bottom boat captain was black. When FLAC acquired Silver Springs, five of twelve glass bottom boat captains were black. At the time of petitioner's discharge on June 21, 1989, seven of the boat captains were black. The number had fallen to three by November of 1990. Hiring Patterns Most of the jobs at Silver Springs require little or no skill, and this has been true at all pertinent times. Boat captains needed only to be able to deliver a spiel or learn a script and handle a boat. Maintenance and food service positions were predominantly unskilled. In all these areas, there were also some positions for managers or supervisors. Between December 7, 1987, and May 6, 1991, inclusive, respondent or its predecessor hired 104 boat captains or guides, and offered jobs as boat captains or guides to 20 others who did not accept. None of those who refused offers and only one who accepted was black. Nine of 520 persons who applied for these positions during this time period were black. In late 1989 and early 1990, blacks applying for other positions at Silver Springs comprised a significantly higher proportion of the applicants for these other positions. In the early part of 1990, blacks accounted for 6.95 percent of applicants for all jobs at Silver Springs, up from the latter part of the year before. Treating the population between 15 and 64 as a proxy for the civilian labor force, the civilian labor force in the area was, according to 1980 census data, 14.7 percent black, a percentage that had fallen by 1990 to 12.7 percent. Blacks comprised 11.1 percent of the Marion County population 15 and older in 1990, and 16.8 percent of those who found work through the Florida State Employment Service in the period from July of 1990 through June of 1991. A labor economist called by petitioner testified that the discrepancy between the percentage of blacks in the flow of applicants for work as boat captains or guides and the percentage of blacks in the work force in Marion County permitted an inference "that there is . . . probably some barrier to entry for individuals to apply," Fresen Deposition, p. 21, for those positions. The same witness was also willing to speculate, id. at 54, that the discrepancy between the percentage of blacks in the flow of applicants for boat captain or guide positions and the percentage of blacks in the flow of applicants for other positions at Silver Springs "may be . . . [attributable to t]he channelling of applicants for navigational positions into other positions." Id. at 55. Respondent attributed the conceded decline in black applicants for work at Silver Springs to better opportunities increasingly available elsewhere in Marion County, including positions at a Martin-Marietta plant with 1800 employees, at Certified Grocers with 800 employees, at Energy One and at Federal Motors, each with 1100 employees in the community, and at a K-Mart Distribution Center with two or three hundred employees. T.440-1. Glass Bottom Boats For several years, perhaps since 1957, U.S. Coast Guard regulations have required that passengers on glass bottom boats at Silver Springs be told about life jackets on board, and boat captains have been responsible for doing this, before setting out. Otherwise, until a few years ago, each glass bottom boat captain had broad discretion about what he did or did not say to passengers on board. On July 1, 1957, when petitioner David Faison, who is black, began work for one of respondent's predecessors in interest as a glass bottom boat captain (or driver), each captain was required to compose a talk to deliver to glass bottom boat passengers. As a new recruit, Mr. Faison read the book "Eternal Springs" and rode with other captains, before leading his own boat tours, pointing out flora and fauna and sharing information about the springs. An Easter Outing Jim Schorr, then FLAC's new chief executive officer, took his family for their first ride on a glass bottom boat at Silver Springs on Easter Day 1989. They "went down on the glass bottom boat dock, and they took the first boat that was available and that happened to be Riley Williams' boat." T.526. Afterwards Thomas Cavanaugh summoned Riley Williams, a black boat captain with more than 30 years' experience, and Michael Jacobs, respondent's director of operations, to his office. "Riley, what happened? What happened with your trip, Riley?" he asked. "We just talked to Jim Schorr. He said it was a terrible trip." T.526. Surprised and visibly shaken, Mr. Williams reported that "Mr. Schorr even told me my trip was good," (T.527) but allowed that he had been nervous. Mr. Cavanaugh told him to take the afternoon off and said, "Riley, we're going to go ahead - we're going to help all the drivers. We're going to hire a drama coach, and it will help everybody out." Id. Standardization David London, the new drama coach, prepared the first version of a script the boat captains were asked to commit to memory, or at least to follow closely as a guide when giving tours. As requested, petitioner, along with other boat captains, made suggestions for improving the script. T.251, 521. At a meeting on or after May 2, 1989, a revised script was distributed to assembled boat captains, and Mr. Schorr announced "that he wanted them to learn the script, and if they chose not to learn the script, that they could find work elsewhere." T.484. No deadline was given. T.44, 429. Whether petitioner Faison was in attendance is unclear. T.294. Riley Williams now works on the grounds at Silver Springs, landscaping and gardening. His pay is no less than if he had remained a boat captain. He asked for a transfer because he felt he "really wasn't coming up to par of what they wanted . . . [from boat captains] and the time was closing in " T. 581. Dockmaster A black man, Willie Barr began as a glass bottom boat captain at Silver Springs in 1974. Except for a hiatus that began in 1980 and ended in 1981, he continued in respondent's employ (or that of a predecessor in interest) until November 18, 1989, when he retired as dockmaster, a salaried position he first assumed in 1982. As dockmaster, Mr. Barr reported directly to Mike Jacobs, the white man who worked as respondent's director of operations. Mr. Barr had overall responsibility for both jungle cruise and glass bottom boats; and particular responsibility for scheduling glass bottom boat captains' work and for maintenance of the glass bottom boats. A separate maintenance department actually did the work. He also piloted, loaded, unloaded and tied up glass bottom boats. Mr. Barr retired at age 52 at least partly because of high blood pressure, a malady of which both he and Mr. Jacobs had become aware in early 1989. T.299, 481. During the months before he stepped down, Mr. Barr came to Mr. Jacobs on several occasions, and told him "about the stress he was under at the boat dock, the problems he was having with the drivers, a new company taking over and all the changes that were taking place." T.481. In May of 1989, Mr. Jacobs asked Mr. Utz, a decorated Navy veteran who had worked at Silver Springs longer than Mr. Barr, "to give Willie a hand." T.371, 481-2. At the time of this request, Mr. Utz, who is white, was "at the jungle cruise most of the time running the jungle cruise operation," (T.298) as lead or "manager of the jungle cruise." T.368. Mr. Barr viewed Mr. Utz, before May of 1989, as his assistant, as did every glass bottom boat captain who testified on this point. But management witnesses insisted that Mr. Utz's position "at the jungle cruise" was equal in rank to that of glass bottom boat dockmaster, the position Mr. Barr held. T.472. Although Mr. Utz worked for an hourly wage before (and, initially, after) the change in May of 1989, Mr. Utz's remuneration exceeded Mr. Barr's salary significantly. In addition to supervising jungle cruises, Mr. Utz trained boat captain recruits. Respondent gave Mr. Utz no pay raise in May of 1989, when his broader responsibilities seemed to most to entail greater authority. The company's chief executive officer acknowledged that a change in the pecking order occurred. T.455. Mr. Barr began reporting to Mr. Utz in May of 1989. T.275. On May 7, 1989, Mike Sentman took over as lead for jungle cruise operations. Response to Petitioner's First Set of Interrogatories, No. 16. Glass bottom boat drivers considered Mr. Barr their supervisor before, but not after, the time Mr. Utz undertook his new role in glass bottom boat operations. T.42, 53- 4, 57. Ultimately Mr. Utz assumed a new title, supervisor of boat operations (T.295, 372), and filled a newly created position, which respondent never advertised, even to other employees. He continued to train all new boat captains before they took a test the U.S. Coast Guard required, drawing on his long experience with boat handling. Only in January of 1990, after Mr. Barr had retired, however, did Mr. Utz acquire his present title and become a salaried employee. T.372. We Are Not "Edutained" On Tuesday, June 20, 1989, the day David Faison returned from a two- week vacation, David London rode on his boat and listened to what petitioner said to the tourists. Unfavorably impressed, he told Donald Utz afterwards, "Wow, that was terrible. That was the wors[t] yet." T.378. That afternoon Donald Utz and Michael Jacobs sent Robert Sinkler, Jr., at the time employed in respondent's "Edutainment" program, on a boat ride with petitioner, with instructions to videotape petitioner's performance. Virtually without interruption, petitioner (who mistook Mr. Sinkler for a tourist) was videotaped for the duration of the trip. Received in evidence as Respondent's Exhibit No. 1, the videotape records petitioner's remarks, delivered in a sometimes unintelligible singsong. They bear scant resemblance to the prescribed script, and include no reference to life jackets. On other occasions, however, petitioner did advise passengers of the life preservers on board. T. 278. David Faison was asked the next day to join Messrs. Jacobs and Utz, in viewing at least a portion of the videotape. In the discussion that followed, petitioner, who was said to be good-natured ordinarily, expressed resentment at having to use the script, which Mr. Jacobs took as a refusal to do so. Petitioner is "a person that would tell you what he thought." T.451. He terminated petitioner's employment on the spot, although Mr. Faison was generally seen by his superiors in the organization as not the type of person to be insubordinate. T.450-451. The day Mr. Faison was discharged Willie Barr, the dockmaster, asked to see the videotape, after he learned from other boat captains that petitioner had been sent home. Mr. Barr watched part of it in the company of Don Utz, who told Mr. Barr that petitioner had been discharged for failure to use the assigned script. T.295. Mr. Utz "didn't really indicate that" (T.295) respondent had refused to use the script. Before petitioner's discharge, Mr. Utz had told Virginia Phillips that he did not know how the black boat captains were going to do because they were difficult to understand. T.51. He also told her he did not want her going to "that area of the city," (T.47) which she took to mean the black residential area. She had recently travelled there when she drove a black boat captain, Alphonso Sears, home. Insubordination was (and remains) a recognized ground for dismissal. T.293, 303. But a white glass bottom boat captain was not dismissed despite refusing to be "cross-trained" as a boat captain for two of the three other rides offered by FLAC, even though he had originally been told that "cross training" for all three was mandatory. T.108. The white employee did train as a boat captain for one of the three other rides. He was told, three weeks before the hearing, that training for the other two was not required. T.109. Another boat driver, Virginia Ferguson, testified that she "was told recently all boat drivers needed to be cross-trained" (T.175) to act as guides on all four rides. T. 176. A second white boat driver also refused cross- training with impunity. T.420. But nobody else was shown to have insisted on giving the glass bottom boat tour his own way, without using the prescribed script. Respondent's newly installed chief executive officer had personally decided and publicly announced that all glass bottom drivers were to use the script. Recruitment Efforts Four times petitioner tried unsuccessfully to get in to see Mr. Cavanaugh in an effort to regain the job he had held for more than three decades. At hearing, Mr. Cavanaugh characterized his failure to talk to petitioner about his discharge as an "error" (T.452) that he attributed to the emotional drain of having himself to terminate the employment of so many people he had worked with for a long time. David Faison was one of approximately twenty employees FLAC discharged in 1989, most of whom were managers. "The new management was making a sweep." T.449. Like his brother David, Roosevelt Faison has worked as a boat captain at Silver Springs for many years. He began on May 4, 1956, and worked full-time until 1989, when he chose to cut back to two days a week. An average or above average employee (T.276), his evaluations have been consistently "good" or "excellent." In May of 1989, he told Anne Dansby, a white woman who worked for respondent that "the few blacks . . . [still employed] felt like they w[ere] not really wanted in the park." T.125. She apparently relayed the substance of this conversation to Tom Cavanaugh, who later brought up the subject with Mr. Roosevelt Faison, agreeing that the number of black employees had dropped. Mr. Cavanaugh told Mr. Roosevelt Faison that he "was dead on the money, but it wasn't done intentionally." T.126.36. On the third or fourth day after his arrival at Silver Springs, Thomas Cavanaugh ordered an end to racially segregated bathrooms at Silver Springs. He personally included a sledge hammer in an attack on a urinal reserved, until its destruction, for the use of black men. Within months of his arrival, he "retired" the white supervisor of glass bottom boats and replaced him with a long-time black employee. He sought to recruit black employees through the school system and enlisting the assistance of black community leaders. These efforts antedated his discussion of the situation with Roosevelt Faison, and intensified after their discussion. Lay-Off On a Monday in July of 1989, when Mr. Roosevelt Faison reported to work, he found a note with his paycheck, which said, "Roosevelt, you are off until notified to come back to work." T.127. When he spoke to Ms. Dansby about the note, she called Mike Jacobs, but he was reportedly too busy to talk to Mr. Roosevelt. Ms. Dansby then called Mr. Utz, who did speak to Mr. Roosevelt Faison, first telling him, "It's just slow business, and we're just cutting back," (T.129) then referring him to Willie Barr, who was not at work that day. The next day, when Roosevelt Faison spoke to Mr. Barr by telephone, Mr. Barr rescinded the lay-off. Although he had not recommended the lay-off, (T.277) Mr. Barr had written the note to Mr. Faison ("on Roosevelt's time card" T.305) at Mr. Utz's behest. T.307. Mr. Roosevelt Faison did not work that week, but he was paid for a half day (presumably because he had come in Monday.) He resumed working his wonted Mondays and Tuesdays the following week. McCants Charlie McCants, who is black, went to work for respondent or a predecessor in interest in 1959 in the deer park, feeding and otherwise taking care of the animals there. He also mended fences and did other maintenance, until his transfer in 1985 to the wildlife section of the attraction. There he did much the same thing, although for different animals, among them giraffes, to whom he had to give shots. He was paid the same thing in the wildlife section as he was making in the deer park before the transfer, although he never supervised anybody in the wildlife section, as he once did for a while in the deer park, without actually holding a supervisor's position. He and Bill White, who is white, were relocated at the same time. Management felt they had both become too often hard to find in the deer park. Emma Hawkins Emma Hawkins began work at Silver Springs in the food and beverage department in May of 1974. In September of 1976, she resigned to go to junior college, but she returned to her job in November of 1977, and was promoted the following month to lead. She was promoted a second time -- to unit coordinator -- in March of 1979, and a third time -- to supervisor -- in August of the same year. She viewed her transfer in February of 1990 to the food and beverage department at Wild Waters as a fourth promotion. T.185, 198. She did not, however, receive every promotion for which she applied. She was passed over in favor of another black person for a job "managing the warehouse," (T.188, 489) and lost out, again to another black applicant, when she applied for an administrative position in the front office. T.188, 489. In January of 1989, she received the last in a series of merit pay raises. More than once, she applied unsuccessfully to become assistant manager of the food and beverage department. The last time she applied to be assistant manager of the food and beverage was the spring of 1989. T.188. The position remained open until Shari Wynkoop, a white woman who had not previously worked at Silver Springs, began as assistant manager of the food and beverage department on June 28, 1990. T.479. At the time of her transfer to Wild Waters, Ms. Hawkins had charge of a restaurant at Silver Springs, The Outback, where she supervised some 20 employees, more in the summertime. T.299-301. At Wild Waters, she had responsibility for five food facilities and up to 50 employees. Id. She had "charge of hiring, firing, inventory purchasing, schedules, supervising, cooking, [and] cash control." T.186. At least after the transfer, many of the assistant manager's duties devolved on Ms. Hawkins, until Ms. Wynkoop took over. A few months before the transfer, Robert Santillana, the food and beverage director, had given Ms. Hawkins a written reprimand because Tina Balboni, whom she supervised, had been permitted to work with "NO HAT, SCARF OR NAME TAG." Petitioner's Exhibit No. 8. On a "CAST MEMBER COUNSELING FORM," Mr. Santillana warned that another such dereliction would result in further counseling. Id. Money Bags The Wild Waters operations manager's morning routine included a trip from Silver Springs to Wild Waters with locked bags full of cash for the various Wild Waters cash registers. He put the money bags needed for the operations Ms. Hawkins supervised in a milk crate in his office. She usually took the crate herself from there to her office in the back of the Surf's Up restaurant, before distributing the money to cashiers. Ms. Hawkins had a door lock installed -- there was none when she started at Wild Waters -- but she did not always lock her office door. An electronic timing device for one of the water slides at Wild Waters was located in her office, and the operations manager needed access to reset the timer. She spent a certain amount of time out of her office but in close proximity. Ms. Hawkins was told on her return (after two days off) to work on or about August 10, 1990, that $98.16 had not been accounted for on or about the evening of August 8, 1990, and that a cashier had quit the day after the loss was discovered. She relayed this information to Mr. Santillana, who did not seem particularly concerned at the time. But Mr. Santillana gave her a written reprimand when, sometime within a few days of August 8, 1990, approximately $400 was taken from an unlocked money bag a cashier left in her unlocked office, in violation of prescribed procedure and apparently without Ms. Hawkins' knowledge. This loss occurred on a Friday. Mr. Santillana, who did not learn of it until the following Monday, was angry that Ms. Hawkins had not succeeded in reaching him over the weekend. She had standing instructions to report major losses to him as soon as possible. On August 16, 1990, he and Ms. Wynkoop went to Ms. Hawkins' office and found it unlocked. Nobody was in the office, but a milk crate full of money bags was in plain sight. He went straight to the front of the restaurant and asked Ms. Hawkins to come to his office the following day. Later he wrote a memorandum, memorializing his findings on August 16, 1990, recounting the loss a week or so before of $98.16, and terminating her employment. August 16, 1990, was the last day Ms. Hawkins' worked for respondent. Ms. Hawkins was not the first to lose a job with respondent for (apparent) failure to abide by prescribed cash handling procedures. On occasion employees were discharged for a single (apparent) breach of such procedures. Ms. Hawkins (who had not yet clocked in when Mr. Santillana accosted her on the morning of August 16, 1990) noticed that a trusted employee had a good view of her office door, but did not bother to check whether it was locked, before going to help elsewhere in the facility, where she was needed.
Recommendation It is, accordingly, RECOMMENDED: That FCHR enter a final order denying the petition for relief. That FCHR enter a final order denying the petition to intervene. DONE and ENTERED this 30th day of November, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1-10, 15, 16, 17, 18, 21, 24, 25, 32, the first two sentences of No. 33, Nos. 34, 35, 57, 58, 63, 64, 65, 69- 74, 77-82, 84, 86, 87, 90-93, 95, 98, 99, 100, 105-112, 115, 116, 117, 120-124, 127, 129, 130, 131, 132, 134, 138 and 139 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 11, the CEO was Jim Schorr. Petitioner's proposed findings of fact Nos. 12, 13, 14, 20, 22, 26, 28-31, 59-62, 66, 67, 68, 76, 83, 85, 88, 89, 94, 102, 103, 104, 118, 119, 126, 128, 135, 136, 140, 143 and 144 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 19, the weight of the evidence established that petitioner did not give the warning on June 20, 1989. With respect to petitioner's proposed findings of fact Nos. 23, 36, 37, 96, 97, 101, 125 and 142, the witnesses testified as reported. Petitioner's proposed findings of fact No. 27, the last sentence, of No. 33, Nos. 75, 113 and 141 have been rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed findings of fact Nos. 36-56, the case has been decided on the assumption, pro hac vice, that race discrimination did take place at some point. With respect to petitioner's proposed finding of fact No. 114, the transfer occurred in February. With respect to petitioner's proposed finding of fact No. 137, she had not been performing as assistant manager for ten years. Respondent's proposed findings of fact Nos. 1 through 5 pertain to the procedural posture of the case, apart from evidence adduced at final hearing. Respondent's proposed findings of fact Nos. 6-8, 12-15, 17-20, the first sentence of No. 21, Nos. 25, 27, 28, 31-34, 36, 37, 39-47, 49-56, 60, 61, 62, 64, 67, 69-75 and 76 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 9, 10 and 11, it is not clear whether Faison was present and heard Mr. Schorr's remarks, or that he was ever told of any deadline. With respect to respondent's proposed finding of fact No. 16, it is not clear whether FLAC intended not to hide the fact that one of its employees was videotaping petitioner. With respect to the last sentence of paragraph No. 21 and Nos. 22, 23 and 24, petitioner was fired for perceived refusal to use the script, whether or not he had time enough to learn it. Respondent's proposed findings of fact Nos. 26, 29, 30, 35, 38, 48, 58, 63, 77, 78 and 79 pertain to subordinate matters. Respondent's proposed finding of fact No. 57 is interally inconsistent. With respect to respondent's proposed finding of fact No. 59, it is unnecessary to decide this question in order to decide the case. With respect to respondent's proposed finding of fact No. 65, the position was filled on June 28, 1990. With respect to respondent's proposed finding of fact No. 66, see paragraphs 46-51 the findings of fact. With respect to respondent's proposed finding of fact No. 67, the evidence was in equipoise on the question of where Ms. Hawkins was when the loss was discovered. COPIES FURNISHED: Mary C. O'Rourke P. Kent Spriggs Spriggs and Johnson West College Avenue Tallahassee, FL 32301 Loren E. Levy Bruce Kaster Cove, Green and Kaster P.O. Box 2720 Ocala, FL 32678 Margaret Jones, Clerk Commission on Human Relations John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Lewis E. Shelley 117 S. Gadsden Street Tallahassee, Florida 32302
