The Issue The issue at hearing was whether the Orange County Parks Department is entitled to dredge and file permit #48-118375-4 for its public boat ramp and dock project in Trimble Park.
Findings Of Fact Trimble Park is one of thirteen public parks operated by the Orange County Parks Department. It is located in Orange County on a small peninsula protruding into Lakes Beauclaire and Carlton, two lakes in the Oklawaha chain. Orange County owns a portion of the park and leases the remainder of the park property from the State of Florida. The park shares the peninsula with approximately eight private residences located near the base of the peninsula along Trimble Park Drive. At present the only entrance road into the park, Trimble Park Drive, dead-ends with a cul-de-sac near the upper tip of the peninsula well within the park. S. J. Stephany and his wife live in one of the eight residences on Trimble Park Drive directly across from the berm constructed by Orange County in the park to serve as a buffer between the proposed project and the private residences. The Stephanys' backyard is on Lake Carlton. Trimble Park currently provides camping, picnicking, playground and boating facilities near the tip of the peninsula. The current boat ramp and dock are located in a wetland area on the shore of Lake Beauclaire. There are no established parking places for boaters to leave their cars and boat trailers, and the boaters park anywhere they can find space off the road, including under trees and within the playground and picnic area. Three oaks and a pine tree have died in recent years in the area where the boaters now park. Ginger Corless attributes the loss of trees to root damage caused by the vehicles. The project which is the subject of this proceeding seeks to move the boating facility (ramp and dock) from the current site to a small natural cove closer to the base of the peninsula also on the shore of Lake Beauclaire. The new site includes less than one-half acre of wetlands. The ramp is to be removed from the current site and the site will be allowed to revegetate. The new site will include 15 paved parking spaces for boaters and 15 more spaces on a stabilized surface, for a maximum of 30 boaters. A ranger will be on site seven days a week and the gate to the boating facility will be closed whenever the 30 spaces are full, thus limiting access to the ramp. A road separate from Trimble Park Drive is to be constructed for traffic to the ramp and dock. That road will divert boat traffic away from the front of all but two of the private residences. A six-foot berm has been constructed along Trimble Park Drive and will be landscaped with palm trees and pampas grass to shield the boat facility from the private property. The new ramp is not intended to accommodate larger boats and the new facility will not result in increased boating traffic as the current usage is already at least the 27 trailers observed by Ginger Corless in the Park on September 21, 1986. The Department of Environmental Regulation issued a permit (number 48- 097955-4) for this same project on March 13, 1985. The permit expired a year later, before Orange County could obtain the funds for construction. Since an extension was not timely requested, Orange County re-applied in April 1986. The application in 1986 is essentially the same as that approved in 1985: the construction of a boat ramp and docks, the dredging of 946.9 cubic yards of sand and the filling of 43.12 cubic yards of material. Dr. Stephany brought to the attention of the Parks Department an error in the latitude and longitude reference to the project location in the application. The application has been corrected and the error is deemed a non- substantive clerical error. No one claims to have been misled as to the actual location of the park. After review of the application, file documents and site, Department of Environmental Regulation staff concluded that the requirements of Section 403.918 Florida Statutes were met. Lake Beauclaire is not an outstanding Florida water. While Lake Beauclaire frequently does not meet class III water quality standards, the proposed project will not further degrade the quality. There are bald eagles, osprey and likely some otters on the site, but these species adapt to human pressures and adapted to the existing boat ramps. They will not leave the area. The site for the new dock and ramp is less significant from an environmental standpoint than the existing site. The area was previously cleared for agricultural purposes and noxious water hyacinths and cattails predominate. The site is not significant from an historical or archeological standpoint. S. J. Stephany received notice of the permit by mail, by copy of the June 6, 1986 cover letter and Notice of Permit addressed to the Orange County Parks Department. He availed himself of the point of entry by requesting and actively participating in this formal hearing. The Department of Environmental Regulation did not require the Orange County Parks Department to publish notice in a newspaper because this was a short form application. Dr. Stephany candidly conceded that he is not a water quality expert. His concerns about the project at hearing were limited to: a) lack of notice, b) an adverse impact on the value of his home, c) an increase in noise from the project from outboard motors and vehicles and d) zoning problems. His neighbors are also concerned about their property values and want the road to the park rerouted to avoid traffic past their property.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is therefore, Recommended that a Final Order be entered issuing Department of Environmental Regulation permit no. 48-118375-4 as described in the Department of Environmental Regulation Notice of Permit dated June 6, 1986. DONE AND RECOMMENDED this 21st day of October, 1986, in Tallahassee, Florida. MARY CLARK 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 21st day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2470 The following comprise my specific rulings on the proposed findings of fact submitted by the parties in this proceeding: Findings of Fact proposed by Petitioner, S. J. Stephany. Rejected as unsupported by the evidence in this proceeding. A prior permit had been issued and there was no evidence of controversy regarding that permit. Adopted in paragraph 7 as to absence of newspaper notice; otherwise rejected as immaterial. Rejected as immaterial. The nursery is not a party to this proceeding. Adopted in general in paragraph 1 as to the description of the Park. The "clouded jurisdiction" is immaterial in this permit proceeding. &6. Rejected as unsupported by evidence. 7.&8. Rejected as immaterial. Adopted in paragraph 6. Rejected as immaterial. The evidence in this case supports a finding that no increase will result from this project. Adopted in general in paragraph 4. Rejected as unsupported by evidence. 13.-20. Rejected as irrelevant and immaterial. 21. Rejected as contrary to the weight of evidence. 22.&23. Rejected as unsupported by evidence. Rejected as unsupported by evidence. Rejected as immaterial. The existence or appropriateness of an alternative site is not at issue. Adopted in paragraph 5, otherwise rejected as immaterial. Findings of Fact Proposed by the Department of Environmental Regulation and Concurred in and Adopted by the Orange County Parks Department 1.-4. Adopted in paragraph 5. Adopted in paragraph 7. Adopted in substance in paragraphs 1 and 3. 7.&8. Adopted in paragraph 3. 9. Adopted in substance in paragraph 1. 10.-13. Adopted in paragraph 4. Rejected as unsubstantiated by the weight of evidence. Adopted in paragraph 4. 16.-18. Adopted in substance in paragraph 6. Adopted in paragraph 8. Adopted in paragraph 7. COPIES FURNISHED: S. J. Stephany 105 Rockport Street Eustis, Florida 32726 Vivian Feist Garfein, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John Gehrig, Esquire Orange County Legal Department 201 South Rosalind Avenue DER 5th Floor Orlando, Florida 32802 Victoria Tschinkel, Secretary 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure and licensure status of motor vehicle dealers and enforcing the statutory and regulatory authority related to standards of business practice by such dealers. D.J.M. RV Center, Inc. (Respondent) holds recreational vehicle dealer license no. 5RV-1222 issued by the Petitioner. The Respondent's licensed place of business is located at 3635 Fowler Street, Fort Myers, Florida 33901. The Respondent is engaged in the business of buying, selling and trading recreational vehicles. It operates under the name D.J.M. RV Center, Inc. That name alone is depicted on the only exterior sign on the Respondent's place of business at the above address. For approximately a two-year period, one George Pieropan, with Respondent's permission, occupied an office in the building occupied by Respondent and bought and sold recreational vehicles at that same location as Respondent. Pieropan purported to be operating a separate recreational vehicle consignment dealer business named "Suncoast RV," a proprietorship. There was, however, no sign on the exterior of the Respondent's dealership building advertising Suncoast RV. Both businesses operated from the same location. There was no segregation of the recreational vehicle inventory of Suncoast RV and D.J.M. RV Center, Inc. The vehicles were intermingled on the display lot. George Pieropan was not a licensed motor vehicle dealer. George Pieropan and Suncoast RV had a separate checking account, but recreational vehicles purportedly being offered for sale by Suncoast RV were advertised in the newspaper as being offered for sale by D.J.M. RV Center, Inc., the Respondent. When individuals came to the sales lot to shop for are creational vehicle, they were shown vehicles by employees of both Suncoast RV and the Respondent, regardless of which entity the vehicle was being sold by or consigned to. Keys for the recreational vehicles purportedly being sold by Suncoast RV or Pieropan, were intermingled with the keys for vehicles being sold by the Respondent on a keyboard in the Respondent's office. Mr. Don Meyer, the President of the Respondent corporation, established that the Respondent purchased a 1978 "Honey" recreational vehicle from George Pieropan which George Pieropan had taken in trade from Mr. and Mrs. Leroy Kehrer. The Respondent sold that vehicle to one James Killem. The bill of sale to Killem for the vehicle was signed by George Pieropan on behalf of the Respondent corporation, D.J.M. RV Center, Inc. In approximately October of 1984, Mr. and Mrs. Kehrer had gone to the Respondent's location to shop for a recreational vehicle. While they were at the Respondent's dealership, Mr. and Mrs. Kehrer were shown a Yellowstone recreational vehicle by Howard Turner. Howard Turner was a salesman for the Respondent and also sold vehicles for Suncoast RV (Pieropan). During their initial visit, Salesman Turner advised the Kehrers that they would have to bring in their current recreational vehicle to have its trade-in value appraised. The Kehrers thus brought in their "Honey" recreational vehicle the next day and Mr. Turner discussed a price with them, with D.J.M. RV Center, Inc. ultimately purchasing the 1978 Honey vehicle. After Mr. Turner and the Kehrers agreed upon an appraised value for their Honey vehicle, which was to be a trade-in, they traded it in on a Yellowstone recreational vehicle which Mr. Turner showed them. The Yellowstone vehicle had been placed on consignment with George Pieropan by its owner, Marcus Heck. During this visit Mr. Turner introduced the Kehrers to George Pieropan, referring to him as "one of the owners of the business" or "his boss." The next day, Pieropan called Mr. Kehrer and shortly thereafter came to the Kehrer's home where a sales agreement was executed for purchase of the new Yellowstone recreational vehicle which had been shown them by Howard Turner, the Respondent and Pieropan's sales employee. As a result of the purchase agreement, the Kehrers issued a check and, at Pieropan's behest, made out the check to "Suncoast RV." At this same time, however, Pieropan told them that Suncoast RV was the branch of the Respondent's dealership that handled used recreational vehicles on consignment such as the subject Yellowstone vehicle. In any event, the Kehrer's paid George Pieropan $17,200 in cash and traded in their "Honey" recreational vehicle with an accompanying trade-in allowance of $13,542 to make up the purchase price for the Yellowstone recreational vehicle. Ultimately, D.J.M. RV Center, Inc. sold that Yellowstone vehicle to one James Killem and George Pieropan executed the bill of sale to Killem on behalf of the Respondent corporation, D.J.M. RV Center, Inc., after D.J.M. purportedly purchased that vehicle from Pieropan. The Kehrers have never received a title for the Yellowstone recreational vehicle they purchased through George Pieropan. Marcus Heck, the previous owner of that vehicle was contacted by Don Meyer, co-owner of the Respondent corporation and had been quoted a sales price for the Yellowstone vehicle by Meyer. Mr. Heck received a check for $15,200 from Pieropan, but that check was dishonored for insufficient funds. Sometime thereafter, Mr. Heck received another check for partial payment of the amount due him in the amount of $9,000. That check was drawn on the Respondent's account and signed by Richard E. Tessier, who was the Respondent corporation's sales manager at the time. Thus, although the Yellowstone vehicle was purportedly consigned by Marcus Heck its original owner to George Pieropan, George Pieropan was acting on behalf of the Respondent corporation in selling the vehicle to the Kehrers' with the assistance of Howard Turner, who was clearly the Respondent's salesman, as evidenced in part by the Respondent corporation's attempt to partially honor the check issued on insufficient funds by George Pieropan who had since left the state. Thus, although Pieropan purported to be operating a separate recreational vehicle dealer business named "Suncoast RV," his business and the Respondent's were so intermingled as to constitute one business entity for all practical purposes. This is borne out by testimony of Marcus Heck, who established that on one occasion when Don Meyer (owner of the Respondent) was on an extended vacation, the Respondent's entire business operation was run by Pieropan in his absence. The businesses were not segregated as to office space, office entrances, driveways, or fences and inventories were co-mingled. Marcus Heck had been contacted by Don Meyer, the co-owner of the Respondent corporation, and quoted the sales price for the Yellowstone vehicle which was to be sold to the Kehrers through Suncoast RV. Suncoast RV was described by Pieropan to Heck as being part of D.J.M. RV Center, Inc. Both Suncoast RV Center, Inc. and Pieropan paid office rent to the brother of Don Meyer, one of the co-owners of D.J.M. RV Center, Inc. Finally, it was established by Howard Turner, the salesman for both D.J.M. and Suncoast and Respondent's witness, that both entities used one common telephone line and that he, Turner, sold recreational vehicles for both Pieropan and Suncoast and D.J.M. RV Center and signed sales orders for both.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore RECOMMENDED: That the licensure of D.J.M. RV Center, Inc. be suspended for a period of one year and that Respondent pay to the Department of Highway Safety and Motor Vehicles a fine of $1,000, and it is further RECOMMENDED that the suspension may be abated at such time as the Respondent provides good and sufficient proof to the Department that the seller of the motor home in question has been reimbursed in full for the sale price of the subject recreational vehicle and that, concomitantly, title to the same has been effectively transferred to the purchasers, Mr. and Mrs. Kehrer. DONE and ENTERED this 18th day of October, 1985 in Tallahassee, Florida. _ P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1985. APPENDIX Petitioner's Proposed Findings of Fact 1. Accepted. 10. Accepted. 19. Accepted. 2. Accepted. 11. Accepted. 20. Accepted. 3. Accepted. 12. Accepted. 21. Accepted. 4. Accepted. 13. Accepted. 22. Accepted. 5. Accepted. 14. Accepted. 23. Accepted. 6. Accepted. 15. Accepted. 24. Accepted. 7. Accepted. 16. Accepted. 25. Accepted. 8. Accepted. 17. Accepted. 26. Accepted. 9. Accepted. 18. Accepted. 27. Accepted. Respondent's Proposed Findings of Fact Undisputed and accepted. Undisputed and accepted. Undisputed and accepted. This proposed finding is rejected as not being supported by the competent, substantial and credible evidence and testimony of record. This proposed finding is rejected as not comporting with the competent, substantial and credible evidence and testimony of record. This proposed finding is rejected as not supported by competent, substantial, credible evidence and testimony of record. This proposed finding is accepted, but is not dispositive in itself of any issue at bar. This proposed finding is accepted, but it in turn is not dispositive of any issue at bar. This proposed finding is rejected as not being in accord with the competent, substantial, credible evidence and testimony of record in its entirety. This proposed finding of fact is accepted. This proposed finding of fact is accepted. This proposed finding of fact is accepted. 12 COPIES FURNISHED: Michael J. Alderman, Esq. Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Gregory E. White, Esq. PAVESE, SHIELDS, GARNER, HAVERFIELD, DALTON & HARRISON Post Office Drawer 1507 Fort Myers, Florida 33902 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
