The Issue The issue presented is whether the Respondent, David Hirshberg acted as a yacht salesman without being licensed in accordance with Chapter 326, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was not licensed as a yacht broker or as a yacht salesman in accordance with Chapter 326, Florida Statutes, commonly referred to as the "Yacht and Ship Broker's Act". The Division is the state agency statutorily authorized to regulate yacht and ship brokers and salesmen. At all times material to this proceeding, the Respondent was employed by Tampa Bay Marine Repossession Center (Center). Respondent's main responsibility was the sale of new Chris Craft boats and occasionally used boats. However, other than giving directions or explaining procedures at the boat show as set out in Finding of Fact 11 the Respondent was not involved with the sale of yachts. The Center is a division of Hirsh Marine, Inc., and acts as the showing agent between banks owning the repossessed boats and the boat buyer. At all times material to this proceeding, Center was not licensed as a yacht broker in accordance with Chapter 326, Florida Statutes, but was licensed as a boat dealer. On Sunday, March 10, 1991, the Center maintained a display booth at the Ninth Annual Suncoast Boat Show (Show) at Sarasota, Florida. The Center's display booth at the Show on March 10, 1991 contained listings offering boats for sale which had been repossessed by banks. One of those listings was for a 34-foot Mainship Trawler (Trawler). Listing of boats on a display board at boat shows is a common method of offering brokerage boats for sale. At the time Center was offering the Trawler for sale on March 10, 1991, the Center did not own, hold title to or have a secured interest in the Trawler. On March 10, 1992, the Trawler was owned by a lending institution that had foreclosed its security interest in the Trawler. The Trawler had been delivered to the Center by the lending institution to be offered for sale. The Trawler was held for sale by the Center for the owner in expectation of compensation for the sale. Ron Hirshberg testified that after the Center negotiated the sale of a repossessed boat with a buyer, the Center paid the lending institution off and title to the boat was transferred to the Center which in turn transferred title to the buyer. Based on material available at Center's display booth, this does not appear to be the procedure used by the Center in handling a sale. The material available at the Center's display booth advises the potential buyer, among other things, that: (a) Center acts as the showing agent between the boat owner (bank) and buyer; (b) certain guidelines are imposed by the bank; (c) no offers will be submitted to the bank without a 10% refundable deposit on initial offer; (d) offers are subject to bank's acceptance; and (e) if repairs are needed, this will be negotiated between bank and buyer. Respondent had his business cards on the table at the display booth which indicated he was associated with the Center. Also, on the display board was a notice that read "Any questions, come out to Chris Craft in-water display and ask for Dave". Dave is the Respondent herein. Upon inquiry, Respondent would direct the person to the marina where the repossessed boats were stored and explain the procedure on how to make an offer or purchase a repossessed boat. There was insufficient competent substantial evidence to establish facts to show that the Respondent was employed by the Center as a yacht salesman or that the Respondent acted as a yacht salesman on behalf of Center as the term "salesman" is defined in Section 326.082(4), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, accordingly, RECOMMENDED: That Petitioner, Department of Business Regulation, Florida Land Sales, Condominiums and Mobile Homes enter a final order dismissing the order to show cause. DONE and ENTERED this 14th day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 14th day of January, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in substance as modified in Findings of Fact 6 and 7. Adopted in substance as modified in Finding of Fact 8. - 5. Adopted in substance as modified in Finding of Fact 9. Adopted in substance as modified in Findings of Fact 3 and 11. Rejected as not being supported by competent substantial evidence in the record. Adopted in substance as modified in Finding of Fact 11. Adopted in substance as modified in Findings of Fact 1 and 5. Adopted in substance as modified in Finding of Fact 1. Adopted in substance as modified in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any Proposed Findings of Fact. COPIES FURNISHED: Mark Henderson, Esquire Department of Business Regulation Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1007 David R. Hirshberg 6035 30th Avenue West Bradenton, Florida 34209 Henry M. Solares, Director Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent engaged in the activities of a yacht broker without a license in violation of Chapter 326, Florida Statutes.
Findings Of Fact The Department is charged with licensing and regulating yacht and ship brokers and salespersons pursuant to Chapter 326, Florida Statutes. In May 1993, the Department issued a yacht and ship salesman's license to Davis. In 1995, after a formal hearing, the Department revoked Davis' license for misrepresentation in entering false answers on his license application. Davis had been a licensed stock broker with the Securities and Exchange Commission between 1971 and 1991. He failed to tell the Department on his application that the National Association of Securities Dealers had censured him, imposed a fine of $20,000, and suspended his license for two years. Davis attended a Department workshop on yacht and ship brokerage laws during the time he held a license. The workshop covered Chapter 326, Florida Statutes, brokerage activities, and administrative rules. In June 1997, Davis approached Don Gilman of Gilman Yachts with an offer to co-broker the purchase of the Princessa del Mar by his client, William Bond Elliott (Elliott). Davis suggested that Gilman split the commission on the purchase with him on a 50/50 basis. Gilman is a licensed yacht and ship broker. Gilman, who knew Davis personally and knew that Davis had been licensed by the Department, agreed to co-broker the transaction. Gilman was unaware that Davis' license had been revoked. Davis had an office in Palm Beach, Florida, with a local telephone and facsimile machine number. Diana Harvey, an employee of Gilman Yachts who handled the closing and paperwork associated with the sale of the Princessa del Mar, thought that Davis had represented himself to her as a licensed broker. The Princessa del Mar is a 105-foot Broward yacht built in 1984. Throughout the negotiations for Elliott's purchase, the Princessa del Mar was moored at docks in West Palm Beach, Florida. The listing broker for the Princessa del Mar was Richard Betram Yachts, Inc. Gary Fisette (Fisette) was the licensed broker handling the listing. Davis requested that Fisette send him the listing specifications on the Princessa del Mar. Fisette sent the specifications to Davis by facsimile transmission and by mail to Davis' Palm Beach office. Davis and Gilman met with Elliott onboard the Princessa del Mar in June 1997 for Elliott to view the yacht. The two discussed the yacht, including the purchase of the yacht, with Elliott. Davis also discussed placing the yacht into charter service to cover some of the costs of the purchase, operation and maintenance of the yacht. Davis met with both the buyer and seller alone and with Gilman and Fisette. On July 3, 1997, Elliott signed an initial purchase contract, offering $1.5 million for the Princessa del Mar on the condition of a sea trial and survey satisfactory to him. Davis signed the contract on the witness line. On July 16, 1997, Fisette sent a letter by facsimile transmission to Davis at his Palm Beach office with information on the engine rebuild on the Princessa del Mar that Davis had discussed with him. Fisette also wrote that the owner would sign and return the agreement by facsimile transmission. Davis arranged for William Seger to conduct the survey. Davis also arranged for the sea trial, which was conducted along the Intracoastal Waterway in Florida. Davis, Gilman, and Elliott attended the sea trial. Captain John Lloyd piloted the yacht. Davis arranged for some engine repair to the yacht. On August 5, 1997, Diana Harvey sent the executed purchase agreement and addendum to Davis at his Palm Beach office. On the same day, Gilman advised Elliott by facsimile transmission with a copy to Davis at his Palm Beach office that the yacht should be hauled for an inspection of the bottom. Gilman and Elliott met to negotiate the final offer. The closing was scheduled in the Bahamas. On September 3, 1997, Gilman confirmed his conversation with Davis about their agreement to reduce their commission by $4,000 toward the seller's request of an additional $12,000 to close the transaction. At the conclusion of the transaction, Gilman received a commission check from the attorney handling the closing. Davis directed Gilman and Harvey to pay his share of the commission, $19,500, in five separate checks: $5,000 to himself as his commission, $1,000 to Foley Law Office for legal fees for the yacht, $1,000 to A. Stokes and $9,500 to Peter Gollsby for reimbursement for expenses for the yacht, and $3,000 to Bill Seger for the survey. A check for $2,850 was also given to Davis for repairs to the yacht. Davis picked up the checks in person from Ms. Harvey at Gilman Yachts. Davis claims that any brokering activities that he may have done were not done in the State of Florida. He claimed that calls to his Palm Beach office were forwarded to Rhode Island, and that only conversations between him and Elliott concerning chartering services and assisting with Elliott's due diligence activities took place in Florida. Davis' claims are rejected as not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered requiring Thomas I. Davis to cease and desist from engaging in yacht and ship brokerage activities in Florida and imposing a civil penalty of $5,000. DONE AND ENTERED this 19th day of October, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland 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 19th day of October, 2000. COPIES FURNISHED: Janis Sue Richardson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Ashley R. Pollow, Esquire Atrium Financial Center 1515 North Federal Highway, Suite 300 Boca Raton, Florida 33432-1994 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Ross Fleetwood, Director Division of Florida Land Sales, Condominiums, and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact At all times relevant hereto, David E. Rabren was licensed as a Tampa Bay state pilot and was president of the Tricounty Pilot's Association (TRICO). At the time the movement of the OCEAN LORD occurred, there was only one state licensed pilot who was a member of TRICO. That was David E. Rabren. Other members held only federally issued pilot's licenses. Prior to the movement of the VOMAR, a second state licensed pilot joined TRICO. At present, there are four licensed state pilots and one deputy pilot associated with TRICO. The vessel OCEAN LORD arrived in Tampa Bay February 18, 1986, and was piloted by Captain Rabren to its berth at C. F. Industries (CFI). After taking on cargo, the OCEAN LORD was moved the same date to Gadsden Anchorage. During this move, Captain Murphy, a federally licensed, but not state licensed, pilot was on board. Captain Murphy is associated with TRICO. On February 21, 1986, the OCEAN LORD was moved from Gadsden Anchorage to the CSX Transportation dock at Rockport. Again, Captain Murphy was the pilot. On September 21, 1986, the vessel VOMAR was moved from Rockport to a dock at Big Bend with Captain Murphy as the pilot. Anita Rabren determined that the movement could be accomplished with a federally licensed pilot on board. On October 5, 1986, the vessel ASPEN, an American flag vessel, arrived at Tampa Bay, and the ship's agent requested TRICO provide a pilot. Due to a misunderstanding of the agent's statement that the ASPEN was coming from the west coast, Anita Rabren assumed this was from the west coast of the United States. Actually, the ASPEN's last port of call was in Korea. Had the vessel come from a west coast of the United States port, the voyage would have been a coastwise trip, and a federally licensed pilot would be required. A federally licensed pilot was assigned to pilot the ASPEN. The last port of call of the ASPEN was ascertained after the pilotages up Tampa Bay commenced, and the fact that an improperly licensed pilot was used was reported forthwith. TRICO paid a double pilot fee to the Tampa Bay Pilot's Association. Tampa Port Authority has jurisdiction over all of Hillsborough County and establishes rules and regulations for that area. They do not regulate pilotage of vessels. Many of the terminals in Hillsborough County are owned by the Port Authority, but some are privately owned such as Big Bend and Rockport, both of which are in the port of Tampa. The Port Authority controls the allocation of berths at all terminals owned by the Port Authority, but does not control the berths at privately owned terminals. The CFI terminal is owned by the Port Authority who establishes wharfage rates and docking rates at this terminal. The berths at Rockport and Big Bend are privately owned, and tariff rates are not set by the Port Authority. CSX Transportation owns a dock at Rockport where phosphate is loaded onto vessels. No wharfage or dockage charge is levied, but such charges are included in charges for the commodity loaded. Ships can clear customs at any of the terminals above noted. The Big Bend facility is under the jurisdiction of Gulf Coast Transit Company. Vessels bring coal to Big Bend for use by Tampa Electric Company. The AGRICO terminal at Big Bend is used for loading phosphate rock. All of these privately owned terminals are licensed by the Tampa Port Authority to whom they pay a fee and submit reports of their activities. The Tampa Port Authority charges a fee to vessels who load or unload cargo at the Gadsden Anchorage which is also in the port of Tampa. Section 310.002(4), Florida Statutes, defines "port" to mean, any place in the state in which vessels enter and depart. For Tampa Bay, this section lists Tampa, Port Tampa, Port Manatee, St. Petersburg and Clearwater as ports. Of those listed ports, Tampa and Port Tampa are in Hillsborough County and come under the jurisdiction of the Tampa Port Authority. No evidence was submitted showing the areas encompassed by the Port of Tampa and Port Tampa. The Port of Tampa's Terminal and Facilities Map (Exhibit 5) showing the port facilities at Tampa, Florida, does not show the facilities at Port Tampa; it shows only those facilities on the east side of the Tampa peninsula, and does not reach as far south as Big Bend. Presumably, if there are only two ports in Hillsborough County that portion of Hillsborough County west of the Tampa peninsula would comprise Port Tampa, and that portion of Hillsborough County east and south of the Tampa peninsula would comprise the Port of Tampa. If so, all of the movements here complained of occurred in the Port of Tampa. Exhibit 5 supports this conclusion. Finally, no credible evidence was presented that Respondent assigned a federally licensed, but not a state licensed, pilot to the OCEAN LORD, VOMAR and ASPEN as alleged, except Exhibit 3 which states the assignment of a federally licensed pilot to the Aspen was due to an error on the part of Captain Rabren. The direct testimony presented in this regard is that Anita Rabren assigned federally licensed pilots to those ships. Further, this determination that use of a federally licensed pilot for those movements of foreign flag vessels within the Port of Tampa was proper was made by Anita Rabren after receiving legal advice regarding the in-port movements of foreign flag vessels that can be piloted by a federally licensed pilot.
The Issue The issue is whether the Respondent is entitled to the issuance of a state license as a yacht and ship broker.
Findings Of Fact Ronald DeMarco is 52 years old, and a resident of Coral Springs, Florida. He is a co-owner of International Yacht Brokers, Inc., in Miami Beach. The company which was opened approximately six or seven years ago, is owned by Mr. DeMarco and a co-owner, Angela Chiarello. Mr. DeMarco moved to South Florida from New York in 1986 and, in May 1991, became a licensed ship and yacht broker. The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Department) is the state agency which administers the Yacht and Ship Brokers' Act, Sections 326.001-326.006, Florida Statutes. Mr. DeMarco was hired, by Anthony Galgano, as an employee of Hidden Harbour Marina. Mr. Galgano was Mr. DeMarco's wife's cousin's brother. After Hidden Harbour Marina was sold, Mr. DeMarco continued to work for the new owner. Mr. Galgano moved to another office at the end of the same yard. Mr. DeMarco entered into a plea agreement signed by a United States District Judge for the Northern District of Ohio, dated April 29, 1996. In the agreement, which was received as Petitioner's Exhibit number 3, Mr. DeMarco acknowledged that the government could prove, beyond a reasonable doubt, that he conspired with Anthony Galgano and Lauren Freidman to steal and obtain by fraud, alter the hull identification number, and sell a 28' Regal boat. In June 1990 Mr. DeMarco notarized false documents purporting to transfer title to the 28' boat. In the plea agreement, Mr. DeMarco also acknowledged his involvement, with Angela Chiarello, Anthony Galgano, and others, in a conspiracy to steal, alter the identity of, and sell in interstate and foreign commerce a 36' Regal Commodore boat. According to the affidavit, Mr. DeMarco directed his co- defendant, Ms. Chiarello, to notarize documents related to the transfer of the 36' boat, in June 1991. Mr. DeMarco testified that he was 45 years old when he notarized the document at issue. Despite the description of his activities in the plea agreement, Mr. DeMarco also testified that he was only charged with one count of notarizing a fraudulent document, that related to the 28' Regal, and that he only pleaded to that one count. (T. 192.) As a result of the plea agreement, in 1996, Mr. DeMarco was placed on probation for three years and fined $2,000. The Judgment, dated April 29, 1996, was received in evidence as Petitioner's Exhibit number 2. On June 24, 1998, Mr. DeMarco's probation was terminated early. According to Mr. DeMarco, he accepted the plea agreement because he did not have money for an attorney, although he did have a public defender. He also testified that he spoke to Peter Butler, the head of the section of the Department which regulates ship brokers, while he was considering accepting the offer of a plea. Mr. Butler told Mr. DeMarco that his license would be the subject of a Notice of Intent to Revoke as a result of a plea. According to Mr. DeMarco, Mr. Butler also told him that he would get his license back " . . . as soon as all my commitments were done, probation and community service and stuff like that . . . ." (T. 188.) Mr. Butler testified, refreshing his memory with contemporaneously taken notes of their telephone conversation on June 29, 1998, that he told Mr. DeMarco that anyone could apply but he should review applicable rules and statutes, and that the Department would review his application. He denied telling Mr. DeMarco that he would be eligible to get his license back when his probation was terminated. Mr. Butler testified that some convicted felons are licensed by the state as yacht and ship brokers. Of approximately 3,800 licenses issued, with 1,700 currently active, Mr. Butler would guess that fewer than 100 of those licenses are issued to persons with felony convictions. By error, Mr. Butler issued a license to a convicted felon who was living in a halfway house at the time. After Mr. DeMarco brought that matter to Mr. Butler's attention, the Department issued a Notice of Intent to Revoke the license. (T.62-6 and 95.) Under the Yacht and Ship Brokers' Act, the Department does not regulate the selling and buying of new boats of any size or used boats equal to or smaller than 32 feet or in excess of 300 gross tons. The buying or selling of one of the vessels described in Mr. DeMarco's plea agreement would not be regulated under the Act. In his cross-examination of Peter Butler, the Respondent's counsel also established that Mr. Butler did not check Mr. DeMarco's letters of reference, and could not refute their representations concerning Mr. DeMarco's good moral character and integrity. Five of the eight letters of reference submitted to the Department by Mr. DeMarco were dated prior to the date of his conviction. Mr. Butler noted, in his testimony during cross- examination, that Rule 61B-60.003(3)(a)7., Florida Administrative Code, provides in pertinent part: Except as provided in sub-sub-paragraph 6.d. of this rule, no information relating to criminal, administrative or civil actions shall be considered if more than 5 years has elapsed from the satisfaction of the terms of any order, judgment, restitution agreement, or termination of any administrative or judicially-imposed confinement or supervision of the applicant, whichever is more recent. Any action, proceeding, or grievance filed against the applicant, individually or otherwise, which relates to the applicant's prospective duties, responsibilities, and obligations of licensure under chapter 326, Florida Statutes, may be considered with no limitation as to time. In reviewing Mr. DeMarco's application, Mr. Butler determined that the application failed to demonstrate that the applicant is of good moral character. He also determined that not more than five years have elapsed subsequent to the completion of his "penalty phase" and that his crime was "industry-related". (T. 66.) Following a review by a staff investigator, Mr. Butler's recommendation to deny a license is reviewed in the Department by someone on the legal staff, the bureau chief, and ultimately signed by the Division Director. (T. 52, 53 and 93.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying the Respondent's application for a yacht and ship brokers' license. DONE AND ENTERED this 22nd day of July, 1999, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 22nd day of July, 1999. COPIES FURNISHED: William Oglo, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Fred C. Bamman, III, Esquire Bamman and Guinta Post Office Box 399 Pompano Beach, Florida 33061 Philip Nowick, Director Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Respondent is now, and has been since November 2, 2006, a Department-licensed state pilot. Respondent's license (License No. SP177), which is current and active, authorizes him to pilot vessels in and out of the Port of Palm Beach (Port). The Port has 17 berths at which vessels can dock. The navigable portions of the Port consist of an inner and an outer channel, two turning basins, and three slips. To aid mariners traversing the Port, there are navigation markers (herein referred to as "Beacons"), which are sequentially numbered in ascending order from east to west with odd-numbered markers to the port side and even-numbered markers to the starboard side of inbound vessels. The Tropic Carib (Ship) is a foreign-flagged container ship owned by Tropical Shipping (Tropical). With an overall length of 525 feet and a gross registered tonnage of 10,825, it is the largest vessel regularly accommodated at the Port. It is equipped with bow and stern thrusters and a Becker rudder and is otherwise designed to handle well in harsh conditions. At 12:50 p.m. on August 3, 2011, at around high water slack, the Ship was offshore, just to the east of the entrance to the Port's outer channel, drawing 21 feet four inches forward and 23 feet aft, when Respondent boarded and took command of the vessel from the Ship's captain for the final leg of its journey. The Ship was bound for the Port's Berth 7 (Assigned Berth) to offload its cargo. The Assigned Berth is a 464-foot, north-south oriented marginal wharf that lies directly on the western end of the Port's main turning basin (Main Turning Basin), into which the inner channel flows.2/ As the Ship, with Respondent on the bridge and in command,3/ entered the outer channel heading west to the Assigned Berth following the much smaller, 31-foot pilot boat (Pilot Boat) that had carried Respondent out to the Ship, there was no evidence of any storms in the area.4/ Precipitation, in the form of a light drizzle, was first encountered as the Ship was travelling in the inner channel between Beacon 8 and Beacon 10. Respondent, at this time, also observed lightning in the distance. He saw one bolt that struck a Port transformer5/ and another bolt that struck approximately one-half mile north of the Port causing a small explosion. After seeing these lightning strikes, Respondent decided to inquire as to whether the lightning had impacted the availability of Tropical's Port-based line handlers to assist with the mooring of the Ship at the Assigned Berth. He did not have the capability of communicating directly with Tropical's Port-based personnel, so he radioed the pilot of the Pilot Boat (Boatman), who did have such capability, and asked her to make this inquiry on his behalf. Respondent did not hear back from the Boatman until the Ship had passed Beacon 10 and was approaching Beacon 12, beginning its turn to the southwest toward the Assigned Berth. The Boatman informed him that the line handlers had been ordered to take cover, as a precautionary measure, due to the lightning in the area and therefore were not at the Assigned Berth waiting for the Ship to arrive. Respondent, however, did not receive any report from the Boatman, who was in front of him on the Pilot Boat, that there were any squally conditions ahead about which Respondent needed to be concerned in navigating the Ship to its ultimate mooring position. By the time Respondent heard back from the Boatman, the intensity of the rain had increased somewhat, but weather conditions had not worsened to the extent that Respondent's ability to maneuver the Ship was impacted. Visibility was still good and the winds, which were predominantly westerly, did not present a problem. The Ship was about ten minutes away, under ordinary circumstances, from its intended destination to the southwest alongside the Assigned Berth. Respondent had the Ship continue on course, in a southwesterly direction, toward the Assigned Berth, a decision that was reasonable under the circumstances that existed at the time. That line handlers might still be unavailable when he arrived did not make heading toward the Assigned Berth a foreseeably more risky or imprudent choice than any other option that Respondent may have had at the time. Respondent had no reason to believe that, if there no line handlers at the Assigned Berth to catch and secure the Ship's mooring lines, the Ship, equipped as it was, would not be able to hover in the water alongside the Assigned Berth and wait for the line handlers to appear. Moreover, even if there were stronger than anticipated westerly winds and the Ship, for some reason, were unable to hold its position, it would be blown, not toward, but away from the Assigned Berth, in the direction of the center of the Main Basin. A few minutes later, as the Ship was approaching the Assigned Berth, it ran into a sudden and unexpected rain squall, with west-southwesterly wind gusts over 30 knots and blinding rains which reduced visibility to zero. Radio communications from the boatswain at the bow of the Ship, who was providing Respondent with needed information concerning the Ship's position in relation to the Assigned Berth, became garbled and unreliable. Reasonably fearing an allision if the Ship continued its forward motion under these conditions, Respondent prudently ordered that the port anchor be dropped, with 1.5 shots (135 feet) on deck,6/ and that the Ship's engines be put astern, orders that were followed. After determining, from the prop wash that he saw on the starboard side of the vessel, that the Ship was no longer closing on the Assigned Berth, Respondent ordered slow ahead, but the Ship's bow thrusters were overcome by the wind, causing the bow of the Ship to swing and the anchor to drag. As a result, the Ship's starboard stern corner touched the sandy bottom approximately 30 feet west of Beacon 12 in the northern part of the Main Turning Basin, where recorded water depths are from 13 to 15 feet and, at high water slack, are generally three to four feet higher. The grounding produced minor, cosmetic damage to the Ship's rudder. No other damage to the Ship was sustained. The squally conditions lasted a mere two minutes. When the weather cleared, Respondent ordered engines ahead. The Ship proceeded to its mooring position alongside the Assigned Berth, where it was serviced by the Tropical line handlers, who had emerged from the shelter they had sought from the lightning. Thereafter, at the recommendation of the Ship's captain, Tropical had divers inspect the underbody of the Ship. The inspection revealed the damage to the rudder caused by the grounding of the Ship during the rain squall (Grounding Incident).7/ Respondent was notified by Tropical of the outcome of the divers' inspection at around 3:30 p.m. on August 3, 2011, and, within a matter of minutes of receiving such notification, he telephonically reported the Grounding Incident to the United States Coast Guard (USCG) and to the Department's Pilot Consultant/Investigator, Lieutenant Commander Galen Dunton, USCG (Ret.).8/ The following day, Respondent provided Commander Dunton with a written report of the incident, as required by section 310.111 and Florida Administrative Code Rule 61G14-15.002. On August 30, 2011, Commander Dunton issued his Investigative Report concerning the Grounding Incident. It contained the following "Conclusions" and "Recommendation": Conclusions: It is concluded that Captain Hansen was operating under the auspices of his state license and therefore subject to disciplinary action by the State of Florida. The proximate cause [of the grounding of the Ship on August 3, 2011] is unknown. The most probable cause was the failure of the pilot to seek a better position within the [Main] Turning Basin to anchor instead of trying to come alongside the intended berth. The pilot made an error in judgment in deciding to approach the berth without any line handlers to assist versus seeking a better position within the [Main] Turning Basin to anchor and ride the storm out. Had the pilot proceeded further to the SW in the [Main] Turning Basin and then anchored,[9] he may not have grounded or at least bought more time to ride out the storm. The anchor began to drag once the bow started to swing with the wind, and as a result the stern quickly touched bottom near Beacon #12. There is evidence of a violation of FS 310.101(1)(a) on the part of the pilot, in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin. There is evidence of a violation of FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin, (2) [a]ttempted to approach the berth knowing that there were no line handlers available, practices not in keeping with the acceptable standards of safe piloting. Recommendation: It is recommended that 1. This case be forwarded to the Probable Cause Panel and that probable cause be found to exist for the following violations: FS 310.101(1)(a) on the part of the pilot in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin. FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin, (2) [a]ttempted to approach the berth knowing that there were no line handlers available, practices not in keeping with the acceptable standards of safe piloting.[10] The probable cause finding Commander Dunton recommended was made, and an Administrative Complaint, based on this finding, was thereafter filed. Respondent subsequently requested a "formal hearing" on the allegations against him. This administrative proceeding ensued, with the final hearing being held on February 27, 2012. Ultimate Finding The evidence presented at the final hearing did not clearly and convincingly establish that, in having the Ship approach the Assigned Berth and anchor where it did during its inbound journey through the Port on August 3, 2011, Respondent failed to exercise the care a reasonable and prudent Department- licensed pilot would have exercised under the same or similar circumstances or otherwise violated some professional standard of care or safety he was obligated to follow as a Department- licensed pilot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pilot Commissioners dismiss the Administrative Complaint against Respondent in its entirety. S DONE AND ENTERED this 29th day of March, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order DENYING Cape Island's application for a special liquor license 4-COP-SPX. RECOMMENDED this 25th day of September, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1984.
Findings Of Fact Thomas A. Baggett, Respondent, is a Tampa Bay Pilot licensed by the State of Florida and holds license number 000045. He was so licensed at all times relevant to the charges here involved. On December 13, 1985, the United States Coast Guard held a hearing concerning the Coast Guards charge of negligence against Baggett for his piloting of the T/B Bulkfleet Pennsylvania. At that hearing Baggett pleaded guilty to and was found guilty of the charge that he was negligent while piloting the T/B Bulkfleet Pennsylvania on November 19, 1985, which resulted in this vessel running aground in the vicinity of Cut "C" Channel, Hillsborough Bay, Florida. At the time of the grounding of the T/B Bulkfleet Pennsylvania, Baggett was acting under the authority of his Coast Guard license number 486856 and was subject to the jurisdiction vested in the Coast Guard under 46USC 7703 or 7704.
The Issue Whether Broward County should issue an Environmental Resource Permit (the "ERP" or "Permit") to Palm Beach Polo Holdings, Inc., for the construction of five finger piers as sized, configured, located and approved by Broward County's Proposed Permit issued in 2007?
Findings Of Fact The Port Laudania Property Port Laudania is a privately-owned marina basin (the "Marina Basin" or the "Basin") in Broward County. Located just off the Dania Cut-off Canal south of Port Everglades, the Marina Basin is not far from the Atlantic Ocean and the Intra-coastal Waterway that lies along all of Florida's east coast. There are no fixed bridges or other impediments to the passage of large sea-going boats and ships between the Basin and the Atlantic. The Marina Basin is an ideal spot to berth large vessels such as yachts and those used in the ocean-freight shipping business. PBPH owns the submerged lands in the western approximate two-thirds of the Basin as well as adjacent uplands. Together, these submerged lands and uplands constitute the parcel located at 750 N.E. 7th Avenue in the City of Dania (the "PBPH Parcel"). Immediately adjacent is a parcel owned by C-Term, a Florida general partnership. Located at 760 N.E. 7th Avenue in Dania, the uplands at the address and the approximate eastern one-third of the Marine Basin (the part not owned by PBPH) comprise the "C-Term Parcel." The PBPH Parcel and the C-Term Parcel make up the Port Laudania Property. Prior to a conveyance in 1987 that divided the Port Laudania Property into two parcels, the property had been under common ownership. The entire property was owned in fee simple by Dennison Marine, Inc. ("DMI"). Just prior to the division of the property into two parcels, DMI conveyed an easement that would ensure that owners and lessees of both parcels would have unhindered access from the Dania Cut-off Canal to their respective parcels: a Cross-use Easement of Ingress and Egress (the "Cross-use Easement"). The Cross-Use Easement for Ingress and Egress On June 29, 1987, DMI executed the Cross-Use Easement.2/ Earlier, DMI had divided the Port Laudania Property into two parcels (Parcel I and Parcel II in the Cross-use Easement, referred-to in this order mainly as the C-Term Parcel and the PBPH Parcel, respectively) and had entered into an Agreement for Deed and Lease with Port Denison, Inc., for the purchase and sale of one of the two parcels. The transaction subject to the agreement had not yet occurred so that DMI remained the sole owner of the Port Laudania Property on the date the Cross-Use Easement was established. The Cross-Use Easement contains the following: WHEREAS, both Parcel I and Parcel II share an inlet off of Dania cut-off Canal, . . . WHEREAS, it is to the mutual advantage of the present and future owners, tenants, invitees, etc. of both Parcel I and Parcel II that the entire inlet be available to the owners of the other parcel for the purposes of ingress and egress; NOW THEREFORE, . . . Denison Marine, Inc., with the consent of Port Denison, Inc., does hereby for itself and its successors and assigns, give and grant to the future owners, tenants and future tenants of all or any portion of the Property, their respective customers, employees, agents, invitees, successors and assigns, a non-exclusive easement for ingress and egress over and across the inlet as described in Composite Exhibit "C" hereto. This non-exclusive easement shall run as a covenant with the land and constitute [sic] an appurtenance thereto. Petitioners' Ex. 1 at 0164-0165. Composite Exhibit "C" of the Cross-Use Easement contains sketches and descriptions of both the "Easterly Portion of the Marina," see id. at 170-171, (the C-Term Parcel) and the "Westerly Portion of the Marina," see id. at 172-173 (the PBPH Parcel.) The descriptions include the entire Basin except for that occupied by the boat lift in the northern end of the Basin.3/ Neither the legal descriptions nor the surveys attached to the Cross-Use Easement depict any finger piers, docks or pilings in the Basin. Under the Cross-Use Easement, the ability of the parties to amend the rights granted therein is governed by the following: This Agreement may be altered, amended or terminated by written document executed by all the then fee simple title holders of all portions of the Property and then record holders of any first mortgages then encumbering any of said lands and recorded in the public records of Broward County, Florida. Petitioners' Ex. 1, second page, BK 1490 PG0165. C-Term has not agreed to amend the Cross-Use Easement to permit construction of the docks contemplated by the 2007 Notice of Intent and Proposed Permit. The rights conferred by the Cross-Use Easement are property rights that govern the use of the Basin. The Basin and the Cut-off Canal The Basin is man-made and frequently referred-to in documents that relate to it as an "inlet" off the Dania Cut-off Canal. Small and medium-sized pleasure crafts, large yachts, mega-yachts,4/ and commercial cargo vessels, some of which are as lengthy as 250 feet regularly pass through The Dania Cut-off Canal in the area of the Basin immediately south of its mouth. Aerial photographs show that the Basin was excavated in the early 1960's. Shortly after excavation, the Port Laudania Property was used as a commercial cargo terminal. Since at least 1967, the Basin has accommodated cargo vessels with lengths up to 250 feet give or take 15 feet. Petitioners' Exhibit 145 is an aerial photograph that shows vessels of approximately 250 feet on both sides of the Basin. For the approximately 250-foot vessel on the east side of the Basin (the C-Term side), the margin of error in measuring the vessels from the aerial is "[p]robably 10 feet, plus or minus." Tr. 1049. G&G has operated numerous vessels in the Basin at lengths of over 200 feet. Of the seven vessels that G&G owned or operated at the time of hearing the maximum length is 234 feet. From April 1999 to March 2006, vessels owned or operated by G&G have struck finger piers or docks on the PBPH side of the Basin "a handful of times." Tr. 893. None of the details of these collisions was produced at hearing. Standard procedure for such incidents would have been to file an internal report or a captain's report, but Mr. Ganoe could not remember whether a report was filed.5/ For his part on the PBPH side of the Basin, Mr. Straub is not aware of any G&G vessels hitting boats moored at the finger piers on the PBPH side of the Basin, indicating that the collisions were not serious. In contrast to evidence that collisions have occurred is evidence from one frequent navigator of the Basin, Jim Steel of Steel Marine Towing. With the exception of the years in college, Mr. Steel has towed vessels in the area of Broward County consistently since 1988 when he began towing with his father at the age of 12. The range in length of the vessels, both commercial and private, that Mr. Steel has towed is from 120 to 250 feet. Mr. Steel has towed hundreds of vessels in and out of the Basin. During those times, he has observed various dock and finger pier configurations. He never collided with the docks on the PBPH side of the Basin with his tugboat or the vessels he towed even when the fifth finger pier was 150 feet long during the time period from 1995-96. Mr. Steel described the Dania Cut-off Canal in the vicinity of the Basin as a congested area with a number of facilities that cater to marine traffic. Large motor yachts (100 feet to 150 feet in length), mega-yachts (longer than 150 feet), commercial vessels (up to 250 feet), smaller pleasure craft as well as other smaller boats comprise the traffic seeking access to facilities along the canal. The facilities include Harbortown Marina across the canal from the Basin, which has some spots for large motor yachts and berths for hundreds of smaller boats up to 90 feet. Facilities in the area that serve mega- yachts are Director's Shipyard, Powell Brothers, and Playboy Marine. In the last five years, new facilities have been opened along the canal for smaller pleasure craft: American Offshore, Dania Beach Club and Dusty's. Mr. Steel described their function, "[t]hey are . . . what you would call rack and stack," (tr. 1562) storing boats sized from 20 to 40 feet pulled in an out of the water and stacked with a forklift. There are eight or nine such facilities west of the Basin. Mr. Steel estimated each of these facilities house at least several hundred boats. Mr. Steel summed up the traffic in the canal: "Some bright sunny days, it is extremely congested, some days it is not as congested, but there's always traffic there." Tr. 1550. 2001: The Delegation Agreement On May 22, 2001, an agreement was entered by three parties. Entitled "Delegation Agreement Among the Florida Department of Environmental Protection, The South Florida Water Management District and Broward County" (the "Delegation Agreement"), it delegated to Broward County's EPD "the authority for permitting, compliance, and enforcement on behalf of the Florida Department of Environmental Protection and the South Florida Water Management District programs." Joint Pre-hearing Stipulation, para. 1, at 11, 12. "Section 11E. of the Delegation Agreement provides that permits issued by the County under the Delegation Agreement 'shall consolidate in a single document the permit under part IV of Chapter 373 of the Florida Statutes, and any required Environmental Resource License' ("ERL") required under Chapter 27 of the Broward County Code of Ordinances ("BCC" or "Code").[']" Joint Pre-hearing Stipulation, para. 2, at 12. In April of 2002 or thereabouts, Broward Yachts submitted an after-the-fact application to EPD for an ERP and an Environmental Resource License (the "Dock Application"). "The Dock Application sought approval to install six total docks [finger piers] comprised of five [finger piers composed of] floating docks in the Basin, with lengths ranging from 150 feet to 190 feet, and one dock, in the canal parallel to the seawall, with a length of 240 feet." Joint Pre-hearing Stipulation, para. 4, at 12. Although the docks were on the PBPH Parcel of the Port Laudania Property, the application was not PBPH's, the owner; instead it was submitted by Broward Yachts, a PBPH tenant. PBPH and C-Term Tenants From November of 1998 to March of 2005, Broward Yachts, Inc. ("Broward Yachts")6/ leased the PBPH Parcel from PBPH for the purpose of manufacture and sale of private yachts and boat dockage. Broward Yachts sold certain of its assets to Lewis Property Investors, Inc., under an Asset Purchase Agreement dated March 2, 2005. On March 8, 2005, Lewis Property Investors' assigned its interest in the Asset Purchase Agreement to Broward Marine. Broward Marine is a Florida limited liability company, formerly engaged in the business of manufacturing, selling and servicing private yachts and activities that constituted operation of a marina on the PBPH Property. Broward Marine leased the PBPH Property starting in March of 2005. It continued to occupy the property under a lease-purchase option agreement with PBPH until June of 2009. C-Term's Property is the subject of a tenancy with G&G, an ocean-freight shipping company. G&G, therefore, has shared the Marina Basin with Broward Marine in recent years. Broward Marine's Departure In March 2009, Broward Marine signed an early termination of its lease with PBPH caused by Broward Marine's failure to pay rent. Broward Marine has not been a tenant or otherwise in possession of the PBPH Property since approximately November, 2009.7/ The termination of Broward Marine's lease was effective on June 15, 2009. After termination of the Broward Marine lease, the PBPH Property was re-let to Broward Shipyards, Inc., an entity that is not a party to this proceeding. At the time of the termination, Broward Marine's interests in the 2002 Dock Application and a revision of the application in 2003 (the "2003 Revised Application") were assigned to PBPH.8/ In the meantime, PBPH has pursued the application which had its origin in a complaint about the unpermitted structures and a warning notice issued by the County in 2002. See paragraph 35., et seq., below. The application for the license and permit was for floating docks. Floating Docks The floating docks used by Broward Yachts and others on the PBPH side of the Basin generally come in sections of 8-10 feet. They are secured to existing pilings in the Basin by a collar which slides up and down the piling or, as Mr. Lewis put it at hearing, "[t]hey float up and down . . . as the tide comes in and goes out." Tr. 204. The top of the piling emerges from the water and the rest of the piling extends downward generally into the bedrock at the bottom of the Basin. A series of floating docks make up a finger pier. Finger piers, the structures authorized by the Proposed Permit, can be lengthened or shortened by adding or removing floating docks based on business needs.9/ The ability to easily lengthen or shorten a finger pier in response to the business needs of PBPH or its tenants accounts for one of the main evidentiary features in this proceeding: the many finger pier configurations that appear in aerial photographs over the years and, in particular, since 1998 when PBPH came into ownership of the PBPH Parcel. The floating docks have been constructed of wood and Styrofoam. Those that PBPH seeks to install under the Proposed Permit will be "concrete bathtubs," tr. 580, which "work just as well and are a lot more permanent." Id. Structures made of concrete are of much likely to cause damage in the event of a collision with a vessel than are floating docks made of wood and Styrofoam. Warning Notice and 2002 Dock Application On January 22, 2002, the EPD visited the PHPB Property in response to a complaint about unlicensed docks. Julie Mitchell (then known as "Julie Karczyk"), a Natural Resources Specialist with the County was present on the property during the visit to conduct an inspection. In a Case Summary admitted into evidence, Ms. Mitchell documented the visit with an employee of the State Department of Environmental Protection. The two visitors asked the manager of the property to provide a copy of permits and licenses for the docks on site. If he could not provide them he was advised of the necessity to apply for them. At the time of visit, there were four finger piers composed of floating docks on the PBPH side of the Basin. The four piers protruded into the Basin at an angle similar to the angle of the finger piers shown in the drawings approved by the Proposed Permit. These four docks (from north to south) had lengths of 117, 130, 150 and 150 feet respectively and were each 7.5 feet wide. The northernmost dock was separated from the second dock (the dock immediately to its south) by 52 feet; the second dock was separated from the third by 60 feet; and the third from the fourth by 55 feet. There was also a fifth structure. It may have been a fifth finger pier, but, because of its width which is substantially more than the 7.5 feet, see Petitioners' Ex. 114F (an aerial photograph with a "fly date" of January 2002), it is more likely to have been "work platforms to construct the docks." Tr. 114. Whatever its function, the fifth structure did not protrude into the Basin as far the four others. It was "[r]ight up against the seawall." See id., Petitioners' 125 at 5, and tr. 114. Ms. Mitchell checked the County records and could not locate a license or permit for finger piers or other structures in the Basin. No evidence of a license or permit was provided by either PBPH or any of its tenants. The status of the finger piers and floating docks today remains the same: unlicensed and unpermitted. The County required Broward Yachts as the tenant of the PBPH Property to submit an after-the-fact permit and license application if it wished to keep the structures. Broward Yachts submitted its application for an ERP and Environmental Resource License ("ERL") to the County (the "2002 Dock Application") on April 16, 2002. In the meantime, Broward Yachts installed an additional finger pier in the Basin angled from the seawall just as the four piers observed by Ms. Mitchell. The installation occurred without County authorization. On May 2, 2002, the County issued Warning Notice No. WRN02-0125 (the "Warning Notice"). Directed to both Broward Yachts and PBPH, the Warning Notice contains one count. See Petitioners' Ex. 7. The count reads as follows (bold type in original): Respondent: Broward Yachts, Inc. Respondent: Palm Beach Polo Holdings, Inc. Violated section 27-333(a)(1), BCC, which states: "No person shall conduct or cause to be conducted mangrove alteration, construction, demolition, dredging or filling in regulated aquatic or wetland resources, except in accordance with a currently valid environmental resource license issued by DPEP and all general and specific license conditions therein." By: constructing docks and installing pilings without a valid DPEP Environmental Resource License. Corrective Action: The respondent must apply for an after- the-fact license from the Department for the dock construction and piling installation. The license will not be issued until the respondent obtains a South Florida Water Management District Right-of-Way permit for the pilings located within the Dania Cut-off Canal. Correct within 14 days of this notice. Id. The 2002 Dock Application was filed on April 16, 2002 (prior to the Notice of Warning.) In the meantime and subsequent to the Notice of Warning, the County conducted a review of the 2002 Dock Application. The 2002 Dock Application The 2002 Dock Application was signed by Paul Bichler of Tri County Marine. Mr. Bichler and his company are listed on the application as the "Entity to Receive Permit," see Respondents' Ex. 3 at 3-4, and Bill Thomas of Approved Permit Services, Inc., is listed as the "Agent Authorized to Secure Permit." Id. The owner of the land is shown as Richard Arnold, General Manager of Broward Yachts. Mr. Arnold signed the application in order to give Mr. Thomas the authority to act as the agent of Broward Yachts in securing the permit. There is no mention of PBPH in the application. Part 8 of the 2002 Dock Application requires the applicant to describe in general terms the proposed project, system or activity. Filled in is: "Install Floating Docks!" Id. at 3-5. No other description is offered. The application contains as attachments a map of the site showing the Port Laudania Property and a drawing of Parcel A at the site (the PBPH Parcel.) The drawing shows six finger piers to be installed. Five are attached to the western seawall of the Port Laudania Property at such an angle so that they lie in the Basin in a southwesterly direction (much the same as the four finger piers observed in January of 2002 by Ms. Mitchell). The lengths of the five range from 150 to 190 feet. The fourth and fifth finger piers are proposed to be 180 feet and 155 feet in length, respectively. The sixth pier lies roughly parallel to the southern terminus of the bulkhead on the PBPH Parcel and extends into the mouth of the Basin. Unlike the other five, the sixth structure is not attached to the western seawall. To the south of the bulkhead and with no attachment to the bulkhead, it runs 240 feet in length. At its eastern end, it overlaps the boundary between the Basin and the Dania Cut-off Canal and protrudes into the canal. Id. at 3-9. The drawing also depicts pilings associated with each of the six structures. The floating docks applied for in the 2002 Dock Application were to be made out of Styrofoam and wood. Permitting Criteria/County Review The County's evaluation and processing of the 2002 Dock Application was conducted appropriately pursuant to the Delegation Agreement. Section (1) of Florida Administrative Code Rule 40E-4.30210/ (the "ERP Additional Conditions Rule") requires an applicant to "provide reasonable assurances that the construction, alteration, operation, maintenance, removal, and abandonment of a system" will meet conditions contained in subsections (a) through (d).11/ For systems located in, on, or over surface waters that are not Outstanding Florida Waters, such as the finger piers and floating dock systems proposed by PBPH, reasonable assurances must be provided that the activity "will not be contrary to the public interest [the "Public Interest Test"] . . . as determined by balancing"12/ seven criteria listed in the ERP Additional Conditions Rule: 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 endangerment 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. Of the seven criteria, above, the two deemed most relevant and determinative for the EPD in processing the 2002 Dock Application were 1., and 3., that is, whether the activity will adversely affect public safety, the property of others, and navigation. The County considered the proposed sizes, locations and configuration of the docks as shown in the drawing attached to the application. It had no navigational experts on staff and did not consult with outside navigational experts. Nonetheless, the County considered the nature of the use and whether it would adversely affect safety and navigation. The County also considered an objection to the location of certain pilings and a "future floating pier along the south edge of the basin at Port Laudania." Petitioners' Ex. 8 at 4. The objection had been lodged by the Port Everglades Pilot's Association in a letter dated May 1, 2002: Port Everglades Pilots are responsible for insuring the maximum level of safety of commercial vessels transiting the water of Port Everglades and Port Laudania. * * * I am writing to you in reference to some pilings that have been driven by Broward Marine for what appears to be a future floating pier along the south edge of the basin at Port Laudania in Broward County, Florida. This is the basin that is shared by Broward Marine and G&G Shipping and located within the City of Dania Beach. These pilings are affecting the safe navigation of commercial vessels that have already been using the basin at Port Laudania for many years. Vessels docked at this new pier will pose additional risk to navigation. * * * I would like to go on record stating that the location of these pilings and potential pier is not satisfactory as it hinders the navigation of commercial vessels using the basins at Port Laudania. Id. The letter is signed by Captain James J. Ryan, Managing Pilot for the Port Everglades Pilots' Association. The County acknowledged receipt of the application in a letter dated August 16, 2002, and informed Broward Yachts' agent that the "application for license is incomplete." Petitioners' Ex. 8. The letter requested prompt submission of the information listed on an attached sheet and warned that failure to submit it within 60 days of the request could result in denial. Two items were found omitted or incomplete in the application. The first was a "South Florida Water Management District right-of-way permit for the pilings located within the Dania Cut-off Canal." Petitioners' Ex. 8 at 2 of 3. The second was a response to the navigation issue posed by the Port Everglades Pilot Association. Id. The County's letter advised that upon a showing of resolution of issues posed by the omissions, the Department would process the application as an ERP since the applicant was allowed by a state administrative rule to apply for an ERP concurrently with an ERL. To that end, the letter requested payment of an additional $700 fee. Id. Four other items were also requested for submission. Five months later, Broward Yachts' agent wrote Ms. Mitchell listing seven responses as "the additional information you requested." Petitioners' Ex. 9. With regard to Item 2, the letter states: 2. I am working with Dan Boyer who is handling the Right of Way permit @ SFWMD, I am also addressing same issue with him, if I can demonstrate that a boat when moored at the proposed dock will not extend more than 25% into the canal, he will recommend to the Board of Governors that the project be approved. I am waiting for a signed and sealed survey to show the exact width of the waterway at this location. Petitioners' Ex. 9. With regard to Item 3, the agent responded, "[c]heck enclosed." The letter did not respond to all the requested information. For example, with regard to requested information concerning the anticipated use of the dock proposed within the Dania Cut-off Canal, whether boats would be moored on both its sides, and the anticipated length and draft of the boats, the agent responded, "I will need to get back to you about this one!" Id. Together with a memorandum dated July 21, 2003, the agent submitted revised drawings for the permit (the "2003 Revised Dock Application" or the "Revision"). The Revision removed any portion of the structures or pilings from the Dania Cut-off Canal in order to avoid the requirement for a SFWMD Right-of-Way Permit. Instead of the six finger piers shown in the 2002 Dock Application, the Revision showed seven. Six were similar to the five that angled into the Basin in a southwesterly direction from where they touched the western seawall. The six piers ranged from 120 feet in length to 150 feet in length. The seventh was similar to the sixth finger pier in the 2002 Dock Application but was depicted as being only 60 feet in length. It no longer protruded into the Dania Cut-off Canal. See Petitioners' Ex. 10 at 2. A memorandum to the file dated August 11, 2003, shows that Ms. Mitchell faxed the drawings in the 2003 Revised Dock Application to the Port Everglade Port Association. The memorandum reported that Captain Ryan responded by saying "he no longer had any objections to the project because the structures had been removed from the ROW [of the Dania Cut-off Canal]." Petitioners' Ex. 11. The memorandum also reported that Captain Ryan stated that there still may be navigational and safety concerns with the proposed pier lengths and locations, and that there may be special circumstances for ships wanting to use the basin such as, navigation during slack tide only, daylight only, and other factors that would exacerbate the concerns. Six weeks or so later, Ms. Mitchell signed a letter from the County. The letter, dated September 29, 2003, advised Broward Yachts that the additional information submitted in response to the January 2002 request had been received. It also advised that the project required an Environmental Resource License (in addition to the ERP) and that the application for such a license had been received. To fully evaluate the project, additional information was needed. This second request for additional information consisted of one item: [1] A Cross Access Agreement (attached), recorded on October 27, 1987, states that "the entire inlet be available to the owners of the other parcel for the purposed (sic) of ingress and egress." The Department has received objections from the adjacent property owner that the proposed docks, specifically the most southern 150-foot-long dock, may hinder the navigation of commercial vessels using the basin. Please provide evidence that the proposed docks will not negatively affect the safety and navigation of vessels using the basin. Petitioner's Ex. 12, Completeness Summary, Environmental Resource License Application at 2 of 2, (emphasis added.) The additional information requested was not provided by Broward Yachts or any other party. On October 6, 2003, Ms. Mitchell forwarded a copy of the Cross-use Easement to the County Attorney's Office and asked for it to be reviewed "to confirm that the [easement] pertains to both facilities [the applicant's and G&G's] and that G&G has a basis for their objection." Petitioners' Ex. 13. The objection by G&G was expressed as: "the most southern proposed finger pier will hinder [G&G's] ability to safely navigate their vessels." Id. Attached is a drawing that depicts seven docks. Opinion of the Broward County Attorney's Office In response to Ms. Mitchell's request, an opinion of the Broward County attorney's office was issued on October 31, 2003. The opinion addresses two questions: first, does the Cross-use Easement pertain to both facilities operated by Broward Yachts and G&G; and, second, does G&G have a basis for its objection. Both questions were answered in the affirmative with the following elaboration on the second question: The Easement includes granting a non- exclusive right to the successors of Port Denison, Inc. to use "all or any portion of the Property . . . for ingress and egress over and across the inlet as described in Composite Exhibit C. . ." The Property referred to in Exhibit A includes all of Parcels I and II. Composite Exhibit C is made up of a sketch and legal description of the easement area, with each Parcel having its own description and sketch. The physical structures referred to that limit the easement are the wetface of the bulkhead and the boat hoist structure. The easement rights granted are not similarly limited by reference to docks or piers that may have existed around the time that the easement was granted. This reading of the easement is consistent with the intent of the parties, as clearly reflected in the last "Whereas" clause which reads: " . . . it is to the mutual advantage of the present and future owners, tenants, invitees, etc. that the entire inlet be available to the owners of the other parcel for the purposes of ingress and egress." Since G&G Shipping's objection is related to the use of the inlet for ingress and egress with reasonable reference to navigation safety, and G&G Shipping accommodates uses that it does not anticipate will interfere with such activities, its objection to the license application has a basis in its easement rights. While the additional correspondence from Broward Yachts dated October 11, 2003, refers to an undated photo showing floating docks that are asserted to exist "around the time that the agreements were drawn-up for cross access," this photo doesn't control or limit the terms of the Easement, which grants the use of the entire inlet to both parties. Petitioners' Ex. 16 at 1-2. Another RAI On December 16, 2003, the County sent another request for information (RAI) to Broward Yachts (the "December 16, 2003 RAI." The request stated, "[y]our response dated October 14, 2003, does not adequately address the navigational and safety concerns stated in our letter [of September 29, 2003]." Petitioners' Ex. 17. The December 16, 2003, RAI referenced the County attorney's October 31, 2003, Opinion which "concluded that G & G Marine, Inc., does have a legal basis for their objection to the docks." Id. The December 16, 2003, RAI concluded: [T]he Department has not received reasonable assurances that the proposed docks will not negatively affect navigation and safety, nor have we received a response regarding the objections. It is the intent of this letter to inform Broward Yachts, Inc. (applicant) and Mr. Bill Thomas (agent) that the license application will be closed, pursuant to Section 27- 55(d)(4), if all requested information is not provided within ten (10) days of the receipt of this letter. Id. Broward Yachts requested an additional 90 days to provide the information. The request was granted. A second request to extend the time for providing the information another 90 days was denied by the County. The County Holds its Position Correspondence dated July 8, 2004, from Larry Zink, Esquire, requested reconsideration of the County's October 31, 2003, Opinion. The County responded in a letter dated July 21, 2004. See Petitioners' Ex. 22. The July 21, 2004, letter refers to "additional information, such as Mr. Denison's Affidavit and references to Florida case law," id. and then concludes: After consideration and based upon the Easement, Broward Yachts' letter of October 11, 2003, [Mr. Zink's] letters of May 5, 2004, May 21, 2004, and July 8, 2004, Mr. Denison's affidavit, Florida law, and G&G Shipping's objections dated November 5, 2003 and April 13, 2004, the conclusion that G&G has a basis for its objection to the Project is still correct . . . . Id. The July 21, 2004, letter addresses Florida Law with regard to the Cross-Use Easement: Florida Law: You have asserted that "[t]he Florida Court's have held that to determine the scope of an easement the Court's attempt to ascertain the intent of the parties in light of the surrounding circumstances at the time the easement was created," referencing the cases of Hillsborough County vs. Kortum and Florida Power Company vs. Silver Lake Homeowners Assn. However, the following more completely summarizes the relevant case law standards: The construction or interpretation of an easement is not evidentiary; it is a matter of law. Hillsborough Co. v. Kortum, 585 So.2d 1029 (Fla. 2nd DCA 1991), rev. denied, 598 So.2d 76 (Fla. 1992). The determination of the extent and nature of an easement granted or reserved in express terms by deed depends upon a proper construction of the language of the instrument, for an examination of all of the material parts thereof, and without consideration of extraneous circumstances. Kotick v. Durrant, 143 Fla. 386, 196 So. 802 (1940). An easement holder has the right to do what is reasonably necessary for the full enjoyment of the easement, but the right must not be increased to any greater extent than reasonably necessary and contemplated at the time the easement was created. Crutchfield v. F.A. Sebring Realty Co., 69 So.2d 328 (Fla. 1954). However, rights of the owners of an easement are not absolute and unlimited. The owner of the servient estate may use [the] land, including the easement, in such a way that will not interfere with the easement owner's right of passage. Tortoise Island Communities, Inc. v. Roberts, 394 So.2d 568 (Fla. 5th DCA 1981). (String citations have been omitted for brevity.) As you may know, the Circuit Courts of Florida have exclusive original jurisdiction over all actions involving title and boundaries of property. See Section 26.012(2)(g), Florida Statutes. Therefore, it is the Seventeenth Judicial Circuit Court that has jurisdiction and authority to determine the relative title interest rights of Broward Yachts and G&G in relation to the Project. The Office of the County Attorney respectfully declines to act in a role which is the proper jurisdiction of that Court. Within the limited scope of the previous and instant reviews, it is merely apparent that G&G objects to the Project and holds a title interest which, on its face, could be negatively affected by the Project. Therefore, it has a basis for its objection. Id., paragraph 2, at page 2 of 3 (emphasis added.) The County determined that Broward Yachts had not provided reasonable assurances that the Project would not adversely affect safety and navigation and would not violate the Cross-Use Easement. In light of the determination, the County sent a memorandum on July 21, 2004, see Petitioners' Ex. 23, requesting such assurances (the "July 21, 2004, RAI"). The July 21, 2004, RAI recognized that the issue with regard to the Cross-Use Easement was the subject of litigation between Broward Yachts and G&G Marine, but in the meantime requested reasonable assurances with regard to the navigation and safety issues or "have your client amend its application to resolve this concern." Id. As with the December 16, 2003, 10 RAI, the July 21, 2004, RAI was required to be answered in 10 days. The County hoped that a response would provide guidance from a navigational expert that the new docks would not affect the ability of other vessels to come in and out of the Basin. Denial and Petition for Review By the end of January 2005, the ten-day period for submitting additional information relative to the 2003 Revised Dock Application had expired. No information relative to safety and navigation concerns or compliance with the Cross-Use Easement had been submitted. By letter dated January 31, 2005 (the "Application Denial"), the Broward County EPD announced its decision to deny the application based on a lack of "reasonable assurance that the proposed docks will not negatively affect navigation and safety, nor violate the Cross-Use Easement . . . ." See Joint Pre-hearing Stipulation, para. 7 at 13. The County's intent in issuing the Application Denial was to deny both the ERL and ERP. The parties stipulated to what happened next: Broward Yachts filed a Petition for Review of Final Administrative Determination, Environmental Resource License Application No. DF03-1121, Environmental Resource Permit Application No. 06-0194386-001 (the "Administrative Review Petition") with EPD on February 7, 2005, challenging the denial of its "license and permit applications." The Administrative Review Petition invoked the procedures of Chapter 27, BCC. Joint Pre-hearing Stipulation, para. 8 at 13. The Administrative Review Petition did not invoke the procedures of Chapter 120, Florida Statutes. Pursuant to an internal procedure, the Administrative Review Petition was reviewed by the Department Director. After an independent review, the Department Director upheld the denial. That decision was communicated to Broward Yachts in a letter dated March 11, 2005, signed by Eric Myers, Director of the Broward County EPD. See Petitioners' Ex. 41. The March 11, 2005, letter proposed a compromise that related to an aerial photograph taken at roughly the time of the submission of the 2002 Dock Application. The photograph showed four finger piers ranging in length from 130 to 150 feet. The County offered to permit such a configuration if Broward Yachts modified its application. Broward Yachts was apparently unwilling to do so. Broward Marine Involvement The denial of the 2002 Dock Application was directed only to the application filed by Broward Yachts. Likewise, the Administrative Review Petition was filed solely by Broward Yachts. In March of 2005, however, Broward Marine took over the possession and operation of the PBPH Property from Broward Yachts. It also purchased the assets of Broward Yachts, including the 2002 Dock Application and the 2003 Revised Application. Response to the County's Proposal In June of 2005, the County met with representatives of Petitioners to discuss acceptable dock configurations. Petitioners advised that they would accept a configuration consisting of four docks extending into the Basin at a southeasterly angle and that they would be amenable to a fifth dock parallel and immediately adjacent to the southern portion of the PBPH bulkhead. The County presented the proposal to Mr. Zink, counsel for Broward Yachts, Broward Marine and PBPH in a letter dated July 11, 2005. Mr. Zink responded by letter dated July 14, 2005. The letter references: "Broward Yachts, Inc. - Floating Docks" even though at the time the 2002 Dock Application and the 2003 Revised Dock Application had been assigned to Broward Marine. The one paragraph letter reads: I am in receipt of Michael Owens July 11, 2005 letter regarding the above matter. Though my client does not agree the 2002 aerial photos are historically representative of the number of floating docks, Broward Yachts is submitting herewith a revised drawing dated July 13, 2005 which accepts what is proposed in paragraph two (2) of Mr. Ownens July 11, 2005 letter. Petitioners' Ex. 54, (emphasis added.) The revised drawing, that was neither signed nor sealed, was attached to Mr. Zink's letter. It shows five floating docks "ALL 7'6" WIDE," id. at second page, four of which are angled into the Basin in a southeasterly direction, none of which are more than 150 feet in length. It also shows a fifth dock that lies immediately adjacent to the eastern seawall of the bulkhead on the PBPH property so that it does not angle into the Basin at all. It is 200 feet long and stops short of the south end of the bulkhead so as to be well clear of the Dania Cut-off Canal. Mr. Zink's acceptance of the proposal on behalf of Broward Yachts did not, however, lead to a resolution. The County asked for two additional matters: signed and sealed drawings from an engineer and that PBPH, as the owner of the property, become the applicant. PBPH Steps In Through a letter dated October 20, 2005, Mr. Zink agreed to the two additional demands of the County. The letter enclosed "sealed drawings for the above applications." Respondents' Ex. 6. The applications were referenced in the letter as ERL and the ERP for "Broward Yachts - Floating Docks," but the letter stated, "[a]s per your E-mail of August 25, 2005, a Revised Application identifying Palm Beach Polo Holdings, Inc. as the property owner will be submitted to you directly by my client." Id. The signed and sealed drawings that were submitted did not reflect the proposal made by the County and agreed to by Mr. Zink on behalf of his client in July of 2005. The drawings showed one finger pier immediately alongside the western seawall of the bulkhead and five finger piers composed of floating docks that angled into the Basin. The signed and sealed drawings showed six finger piers instead of five and five finger piers that angled into the Basin instead of the four envisioned by the agreement finalized by Mr. Zink's letter on July 14, 2005. In a letter dated November 11, 2005, and received on November 16, 2005, that was characterized by Mr. Zink as "a follow up on my October 20, 2005, letter to [the County]," Petitioner's Ex. 7, Mr. Zink enclosed two documents: "1) Original executed Application on behalf of Palm Beach Polo Holdings, Inc. 2) Drawing prepared by Frank L. Bennardo, P.E., depicting the docks." Id. The letter dated November 11, 2005, was not accepted for reasons outlined in an e-mail message from Julie Mitchell to Eric Myers. See Petitioners' Ex. 69. In the wake of the message, the County continued to process the 2003 Revised Dock Application. In a letter dated December 16, 2005, with the same reference line used in his earlier correspondence ("Re: Broward Yachts, Inc. - Floating Docks"), Mr. Zink submitted "(2) Revised Drawings prepared by Frank L. Bennardo, P.E., Inc. dated 11/30/05 depicting the five (5) finger piers as per the July 13, 2005, conceptual drawing approved by DPEP." Petitioners' Ex. 75. As represented by Mr. Zink, the drawings matched the configuration proposed by the County in its letter of July 11, 2005. At this point in the series of events initiated by the Notice of Violation in 2002, the parties would have been justified in thinking that an agreement had been reached, that the ERL and ERP could be issued and that all files on the matter of the Broward County EDP could be successfully closed. Mr. Lewis on behalf of Broward Yachts expressed the sentiment at hearing: [I]n the course of that same period, [Mr. Ganoe] was concerned about turning vessels where the fifth dock was. And we put a buoy in the basin where the length of a boat extending beyond that pier would be, he had given us a radius of what he wanted. We had McLaughlin Engineering take that, and I can't remember how many feet that he wanted clear in that area, plotted it on a drawing, went over it with him, thought we had an agreement. Tr. 181 (emphasis added.) Between the County's July 2005 proposal and Mr. Zink's December 16, 2005, letter that appears to have finalized the proposal's acceptance, however, a disruptive event occurred. The event caused destruction in the Basin, halted businesses on both of its sides and stressed the resources of the County: Hurricane Wilma. Hurricane Wilma Hurricane Wilma destroyed most of the docks and pilings in the Basin. In the wake of the destruction, Broward Marine submitted an application to the County for the issuance of a general license (the "General License") to repair and re- install pilings and ramps. The difference between projects that require an ERL, such as the project at issue in this proceeding (which required both an ERL and an ERP), and those that require only a general license was explained by Ms. Mitchell at hearing: "A general license is for smaller projects, specifically for docks where the total overwater area is less than 500 feet . . . ." Tr. 386. A Broward County general license was also distinguished from the ERP at issue in this case. Projects for which the overwater area is less than 1,000 feet are not subject to ERPs. The general license was approved in a letter issued by EPD's Wetlands/Uplands Resources Section: This letter is to inform you that your request for a General License has been granted. General License No. GL- DAN0512-029 authorizes the installation of ten (10) pilings and five (5) floating ramps, adjacent to 750 NE 7th Avenue, in the City of Dania Beach. Respondents' Ex. 9 at 9-2. The General License authorized pilings and ramps only; it did not authorize floating dock structures such as finger piers. The approved project description was attached to the January 6, 2006, letter. It shows the approved project to be pilings installed within the Basin at certain distances from the seawall. For the northernmost four set of pilings the distances range from 115 feet to 150 feet. The distance from the seawall of the fifth set of pilings (the southernmost set that corresponds to the fifth finger pier applied for in the ERP application) is 75 feet, a distance significant to safety and navigability. Notwithstanding that the General License did not authorize finger piers, Broward County installed finger piers in the Basin. The installation of finger piers was done without an ERL or an ERP. When asked why a Notice of Intent was not issued that reflected the parties' putative agreement at the end of 2005, Ms. Mitchell replied, "To be honest, I don't recall because there was so much settlement going on outside of our department with the attorneys, I don't remember exactly why it ended up going [to hearing.]" Tr. 397. The record is unclear as to why a Notice of Intent was not issued. It may have been because of the interruption and destruction of Hurricane Wilma and the confusion it caused when country resources were diverted to other pressing matters. It may have been because of lack of communication between all of the parties and their attorneys. Or, it may have been because of objections from Broward Marine that are referenced in Petitioners' Ex. 69 as to the November 16, 2005, submission of information. The objections are counter to Mr. Zink's letter of December 16, 2005, and inconsistent with Mr. Lewis' recall of having reached an agreement in mid-2005. Whatever the reason, a Notice of Intent for an ERL and an ERP authorizing finger piers and floating docks as referenced in Mr. Zink's December 16, 2005, letter was not issued. In March of 2006, the 2002 Dock Application and the amendment to it in the 2003 Revised Application proceeded to hearing before a Broward County Hearing Examiner because of their denial by the County. The March 2006 Hearing, the Final Order and the Omnibus Order The hearing was held on March 30, 2006. There were two parties to the proceeding: Broward Yachts, Inc., as the Petitioner, and Broward County Environmental Protection Department. Aside from the County, none of the parties to this proceeding13/ (DOAH Case No. 08-1393) were parties to the proceeding before the Hearing Examiner. In his Final Order, the Hearing Examiner described those who participated or were present: At the hearing, the Environmental Protection Department was represented by Michael Owens, Esquire, who presented the testimony of Julie Krawczyk, Natural Resource Specialist II. The Petitioner was represented by Larry Zink, Esquire, who presented the testimony of Glenn Straubb [sic], the President of Palm Beach Holdings, Inc. Also in attendance at the hearing was Steve Ganoe, President of G&G Marine, Inc. ("G&G") Respondents' Ex. 10. The Hearing Examiner entered the Final Order on June 5, 2006. The Final Order found that "these docks, is some shape or form, have existed in this area for over twenty one years and have been used for substantially the same purpose for those years." Id. at 10-2. The order further found "that no competent substantial evidence was presented that would support or warrant the denial of the license and permit sought by the Petitioner [Broward Yachts] to maintain its existing docks." Id. at 10-3. The order concluded, "The administrative decision denying the license/permit to maintain the docks is quashed and the matter is remanded to EPD to take appropriate action in accordance with the terms of this Final Order." Id. The order is based on the following finding: The only relevant standard to this proceeding . . . is . . . whether the docks will adversely affect public safety or welfare or the property of others. No evidence was presented that the docks, which have been in existence since 1985, have ever caused an accident or that they impede G&G's reasonable use of the easement. Moreover, while the EPD does have the right to regulate these docks and the navigable water upon which the docks rest, the easement area is not generally travelled by the public and more or less serves as an entrance to only two businesses, G&G and that of the Petitioner. Id. Broward County filed a motion for reconsideration of the Final Order. G&G filed a motion for rehearing and/or reconsideration as a "nonparty." See Respondents' Ex. 11. Both motions were considered in an order entitled "Omnibus Order Granting in Part and Denying in Part Post Hearing Motions." Respondents' Ex. 12. The County's motion was denied. The motion of G&G's was granted in part. The motion was found to request relief not inconsistent with the Final Order. "Specifically, G&G requests that the Final Order prohibit the installation of additional docks and prohibit increasing the size of the existing docks." Id. at 12-2. The Omnibus Order grants the following relief: Petitioner may maintain the five existing docks and repair and replace them, but may not do so in a manner that causes any of the docks to protrude at a greater length or distance into the waterway. Additionally, Petitioner may not construct or maintain any docks other that the five existing docks. Id. at 12-2, 12-3. Neither the Final Order nor the Omnibus Order contains a finding of fact as to the configuration of docks at the time of the hearing conducted by the Hearing Examiner. There is evidence in the record of this case (DOAH Case No. 08-1393) that the five docks existing on March 30, 2006, were configured consistently with the pilings authorized by the General License, that is, they had lengths beginning with the northernmost dock of 135, 135, 150, 150 and 75 feet, respectively. At the time of the final hearing in this proceeding, moreover, the docks were present in the Basin in approximately the same configuration as existed in March of 2006. The 2006 and the 2007 NOIs On October 23, 2006, the County issued a Notice of Intent (the "2006 Notice of Intent") to issue a combined permit/license for the construction of the five docks ranging from 132 feet to 192 feet in length. The 2006 Notice of Intent was issued solely because the County believed it was required by the Hearing Examiner's Final and Omnibus Orders. See Tr. 405. The configuration of docks authorized by the 2006 Notice of Intent resembled the July 2005 Proposal accepted by Mr. Zink on behalf of Broward Yachts: four docks angled into the Basin in a southwesterly direction with one additional dock parallel and adjacent to the seawall. The County did not conduct any evaluation of its own between the dates of the Hearing Examiner's Final and Omnibus Orders as to whether the configuration authorized by the 2006 Notice of Intent had unacceptable impacts to navigation and safety. The draft permit attached to the 2006 Notice of Intent contains several sets of conditions. DEP General Conditions, Broward County EPD General Conditions and ERP and ERL Specific Conditions ("Specific Conditions"). The Specific Conditions were included under the County's authority to impose conditions necessary to carry out the intent of the ERP and ERL permitting regulations. Specific Condition 18 is "Mooring of vessels with lengths exceeding the length of the permitted structures is prohibited." Respondents' Ex. 13 at 13-17. The purpose of including Specific Condition 18, as testified by Eric Myers, Director of the Broward County EPD at the time the 2006 Notice of Intent was issued, "was to make sure that . . . adequate navigation was maintained within the Basin." Tr. 560. G&G challenged the 2006 Notice of Intent by filing a petition for formal proceedings with EPD seeking a clarification in interpretation with regard to the lengths of vessels to be moored in the PBPH side of the Basin vis- à-vis the length of the permitted structures. Broward Marine also filed a Petition for Formal Proceedings challenging the 2006 NOI. In furtherance of discussions with the County, Broward Marine, by letter dated June 26, 2007, submitted four surveys for consideration by the County. The first purported to show the dock configuration existing after Ms. Mitchell's January 2002 visit but before the submission of the Permit Application; the second purported to show the dock configuration on December 11, 2003; the third showed the dock configurations sought by Broward Marine; and the fourth showed all configurations overlapping. None of the surveys depicted the dock configuration existing on January 22, 2002, the date of the Ms. Mitchell's visit, which was the configuration the County had requested Broward Yachts to submit for approval. The County did not transmit the G&G petition or the Broward Marine petition to DOAH. Instead, on or about August 23, 2007, EPD issued another Notice of Intent to Issue Permit/License (the "2007 NOI") to PBPH. The 2007 NOI identifies the proposed project as the Broward Yachts Marine Facility, with permit No. 06-0194386-001 and License No. DF03-1121 and lists the Permittee/Licensee as "Palm Beach Polo Holdings, Inc." Respondents' Ex. 14 at 14-9. With respect to the factors considered by the County in issuing the 2007 NOI, it provides: The Department reviewed the information presented in the petitions, the Hearing Examiner's Final Orders, and surveys provided by Broward Marine with a letter dated June 25, 2007, and as a result has reformulated the draft permit and agency action. Respondents' Ex. 14 at 14-3. The 2007 NOI also referred to an earlier NOI and draft permit issued on August 2, 2007. On August 8, 2007, EPD was notified of typographical errors in the August 2, 2007, NOI. As a result of the typographical errors and other previous errors, the 2007 NOI stated, "this Notice hereby supersedes the October 23, 2006, and August 2, 2007, Notices of Intent to Issue and draft permits/licenses." Id. The Proposed Permit and the draft Environmental Resource License attached to the 2007 NOI allows PBPH to construct five floating finger piers as detailed in a section of the Proposed Permit entitled "PROPOSED PROJECT DESIGN," as follows: The proposed project is to construct five (5) floating finger piers in an existing privately-owned marina basin. From north to south, the finger piers shall have the following sizes: (1) 7.5-foot-wide by 122-foot-long pier; (2)7.5-foot-wide by 135.8-foot-long pier; (3) 7.5-foot-wide by 150.5-foot- long pier; (4) 7.5-foot-wide by 150.5- foot-long pier; and (5) 7.5-foot-wide by 152.6-foot-long pier. All five (5) finger piers shall be placed sixty-five (65) feet apart and angled in a southeasterly direction from the existing seawall, as depicted on the attached drawing. The total over-water area of the structures shall be 5,378.25 square feet Respondents' Ex. 14 at 14-10. The dock configuration authorized in the Proposed Permit is the same dock plan depicted in Exhibit C to the June 25, 2007, letter from Broward Marine to the County. The County issued the 2007 NOI, revising the dock configuration from what it had authorized in the 2006 NOI, due to objections from Broward Marine that the configuration in the 2006 NOI was not consistent with the Final Order and the Omnibus Order. The Proposed Permit also eliminated Specific Condition 18 that was in the 2006 NOI. It did not impose any restriction or limitation on the length of vessels that may be moored at the proposed finger piers, and PBPH indicated at hearing that it would moor vessels alongside the finger piers whose lengths exceeded the piers.14/ In addition to elimination of Specific Condition 18, there were other significant differences between the 2006 NOI and the 2007 NOI. For example, the 2007 NOI allows all five finger piers to be placed 65 feet apart and angled in a southeasterly direction from the seawall. In contrast, the 2006 NOI provided that the southernmost pier of the five would be placed immediately parallel to the seawall so that it did not jut out at all into the Basin. The 2007 NOI contemplates that the structure of the finger piers would be more permanent. The 2003 Revised Application had sought floating docks, of the type existing at the time made of Styrofoam and wood, as opposed to fixed piers. The concrete pilings and the concrete tub floating docks contemplated by the 2007 NOI are more permanent than the existing wood pilings and the wood and Styrofoam docks. Eric Myers, Director of EPD at the time, signed the 2007 NOI. When he did so on August 26, 2007, he believed that the issues regarding safety and navigation that had been raised by G&G and C-Term had been resolved "based on the advice of staff." Tr. 529. Historical Configuration of Docks in the Basin PBPH contends that the finger pier and dock configuration authorized by the 2007 NOI is consistent with historical lengths and configurations of piers and docks in the Basin. The evidence establishes that the length, number, configuration and locations of docks within the Basin varied greatly over time. As Mr. Straub testified in response to a question about the dock configuration when the property was acquired by PBPH, "Whatever we wanted them to be. It could change from day-to-day and month-to- month." Tr. 582. Aerials taken by Broward County dating back to 1998 demonstrate that the docks in the Basin ranged in number, length and location until 2006 when docks were installed following issuance of the General License. Until 1998, there were many different configurations. Since 2006, the number, lengths, and sizes of the docks have remained fairly consistent to the time of hearing. In the January 2007 Broward County aerial photograph, the five docks (from north to south) have lengths of 151.5, 136, 156, 156 and 88 feet, respectively. These lengths are roughly similar to the piling configuration authorized by the General License.15/ Safety and Navigation16/ The multiplicity of factors that affect navigation in the Dania Cut-off Canal "makes maneuvering extremely tricky" in the canal. Tr. 1574. These same factors affect Basin ingress and egress of G&G vessels and other vessels that have access to the Basin. Wind near the Basin comes from any direction. The predominant wind in the area of the Basin is out of the east/southeast at average speeds of 10-12 knots. From time-to-time, of course, the wind shifts. When cold fronts come through the area, for example, they generally come from the west/northwest and the wind blows mainly from the north. Strongest winds associated with a cold front are usually "anywhere from 20 to 30 knots. Constant winds with a good cold front, usually 15 to 20 knots." Tr. 1260. Direction and strength of wind affects stability and handling capacity of vessels entering and exiting the Basin. The bow of the vessel is affected the most. In the front, it is the narrowest part of the vessel, the least heavy, and has the least draft (depth in the water). Vessels entering and exiting the Basin are affected by leeway defined by Mr. Danti at hearing: "[L]eeway is the physical amount of sideways motion that is going to be activated on a vessel by the wind. It is the amount of side motion created by the wind on a vessel." Tr. 1268-9. Leeway varies depending on a number of factors, among them, the strength and direction of the wind, the angle of the vessel, and its draft. Ocean-freight shipping vessels have different handling characteristics from yachts. The effect of leeway on vessels in the Basin varies from vessel to vessel. Typically, the effect of leeway is greater on G&G vessels than on the PBPH vessels. The current in the Dania Cut-off Canal is 2.0 to 2.5 knots. The current in the canal in the immediate vicinity of the Basin has significant effects on the maneuverability of vessels. Because of the current in the canal, it is advisable for vessels entering and exiting the Basin to perform the majority of turns and other maneuvers in the Basin rather than in the canal. Another factor that makes turning maneuvers by G&G vessels safer in the Basin is boat traffic in the Dania Cut-off Canal. That traffic has increased greatly in recent years, as Mr. Steele testified. Vessels exiting the Basin, furthermore, must yield to vessels in the canal. Boat traffic is not visible to the typical G&G vessel until the vessel has committed to exiting the canal. Once committed, the G&G vessel cannot stop and wait for traffic to pass. It must complete the exit maneuver. It is much better, therefore, for the G&G vessel to turn in the Basin before committing to an exit so that it can emerge bow-first with a better view of canal traffic rather than emerge by backing out. Another factor that makes turning in the Basin safer is the Harbortown Marina, located directly across the canal from the Basin. There is a greater chance for collision the farther the G&G vessels must go into the Dania Cut-off Canal before beginning maneuvers necessary to head out to sea. Vessels will have to go closer to the southern side of the canal, that is, farther into the canal, when emerging from the Basin if they back out and turn in the canal rather than turn in the Basin before heading out toward the Atlantic Ocean. The Basin has a width of 320 feet at the north end and a width of 323 feet at the south end. Mr. Danti fashioned an "Unobstructed Line," depicted on Petitioners Ex. 114A and superimposed on Exhibits 114B through 114"O", fourteen aerial photographs of the Basin taken between 1998 and 2008.17/ The line commences at the north end of the Basin 162' from the Basin's western seawall and runs to the south with two "jogs" to the west before it ends at a projected bulkhead line in the mouth of the Basin just north of the Dania Cut- off Canal. The two jogs run perpendicular to the western seawall; the first, to the tip of the fourth finger pier allowed by the 2007 NOI and the second to a point 59.90 feet east of the western seawall in the approximate middle of the fifth and southernmost finger pier allowed by the 2007 NOI. The part of the Basin to the east of the Unobstructed Line is a navigational safe area (the "Safety Zone") created by Mr. Danti in which it is safe, in his opinion, for G&G vessels to turn and take maneuvers necessary to safely enter and exit the Basin. The Unobstructed Line and the Safety Zone were determined by Mr. Danti in a calculation that took into consideration factors including wind, current and tide, as well as the length, width, draft, maneuverability and handling characteristics of the bulk of G&G vessels and the fact that G&G vessels entering and exiting the Basin need the use of a minimum amount of space in the southern part of the Basin to initiate and complete safe entry and exit navigation maneuvers. Ultimately, the Safety Zone provides a minimum distance for a vessel 190 feet in length determined as half the beam of a vessel18/ from the bow, stern or either side of a vessel to any other vessel, dock, piling or seawall. It does not take into account factors that may require a greater distance such as wind, current and traffic under conditions that are less desirable than the best conditions experienced in the area of the Basin ("Best Conditions"). In order for vessels of the size and character that enter and exit the Basin to do so safely under Best Conditions, no finger piers, docks or moored vessels should protrude from the PBPH side of the Unobstructed Line into the Safety Zone. Under ideal wind, current, and weather conditions, the lengths of the first four finger piers from north to south as authorized by the Proposed Permit will not result in adverse effects to safety and navigation of vessels in and around the Basin. The fifth finger pier, however, is another matter. Authorized to be 152.60 feet in length as depicted in the Proposed Permit, it will protrude by more than 77 feet into the Safety Zone developed by Mr. Danti. Put another way, the fifth finger pier will adversely affect safety and navigation unless it is 75 feet or less in length given its southeasterly angle depicted in the Proposed Permit.19/ The authorized length of the fifth finger pier is not the only navigation and safety issue about which Mr. Danti testified. The length of vessels moored at the finger piers in the Proposed Permit, if too long, can present safety and navigation issues, as well, for G&G's vessels coming in and out of the Basin. With respect to the three northernmost finger piers, moored vessels should not extend past the Unobstructed Line, that is, they should not extend more than 162 feet measured perpendicularly from the Basin's western seawall. With respect to the fourth finger pier, vessels moored there should not extend past the 150.50 feet allowed for the length of the pier as depicted in the Proposed Permit. Similarly, no vessels moored at the fifth finger pier should extend past the end of a longest possible safe fifth finger pier, that is, one that is no more than 75 feet in length at the angle depicted in the 2007 NOI. The adverse affects on safety and navigation caused by the fifth finger pier at the length and as configured in the Proposed Permit would not be alleviated by G&G's use of tugboats to assist vessels entering and exiting the Basin. Tugboats are connected to the vessels they tug by tow lines at the bow and stern of the vessels. Such an arrangement adds approximately 85 feet to a typical G&G vessel of 190 feet, thereby requiring more room in the Basin for maneuvering than the vessel would need under its own power. The use of tugboats would require an even more expansive Safety Zone than was developed by Mr. Danti.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Broward County: modify the Proposed Permit attached to the 2007 Notice of Intent to shorten the length of the fifth finger pier to 75 feet and then issue the permit with the modification; or absent such a modification, deny the issuance of the Proposed Permit as applied for by PBPH. DONE and ENTERED this 14th day of October, 2010, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2010.
