Findings Of Fact Citizens for Responsible Boating, Inc., the Petitioner, is a not-for- profit corporation organized under the laws of Florida. Its approximately 500 members own, sell and use boats and boat related products on the waters regulated by the State. Their purposes are to promote boating and water sports and to protect the boating public's right to access and use of Florida waters. The Department of Environmental Protection ("DEP") is the state agency with primary responsibility for rulemaking to regulate boat speeds incident to protection of manatees, pursuant to Subsection 370.12(2), Florida Statutes. After a series of public hearings on earlier versions of the rule, the Secretary of DEP approved the rules on August 11, 1993, to be effective on September 9, 1993. Subsection 370.12(2), Florida Statutes, the Florida Manatee Sanctuary Act, was enacted to give DEP the authority to regulate: (f). . . the operation and speed of motorboat traffic, only where manatee sightings are frequent and it can be generally assumed, based on available scientific information, that they inhabit these areas on a regular or continuous basis . . . . The challenged rules enacted pursuant to the Act have the effect of limiting boat speeds in western Volusia County in the Hontoon Dead River, and the parallel St. Johns River, roughly from a point just south of the Beresford Peninsula at Marker 63 extending south to Marker 81; and in eastern Volusia County on the Indian River from the North Bridge in New Smyrna Beach through Ponce Inlet to Rock House Creek, and on the Indian River in Edgewater and Oak Hill from Marker 65 to Marker 9A. The waterways are designated year round slow speed zones. Slow speed zones are, according to the definitions in Rule 16N- 22.002, designated areas . . . "within which it has been established that manatees are known to congregate." Eastern Volusia County (Halifax and Indian River) In the slow speed zone north of New Smyrna Beach, Michael Godfrey, Sr., a boat dealer from Edgewater who formerly water-skied in the area, reported seeing probably 6 manatees over 27 years. His average speed on the water was 45 miles per hour in boats, and in excess of 38 miles per hour on water-skis. The only manatees he is able to see are the ones which have come to the surface of the water to feed. High speed corridors are included in most of the Volusia County waterways. Exemptions from the speed limits are available for boat dealers with service departments, but no application has been made based on Mr. Godfrey's unexplained conclusion that it is not economically feasible. What was a 15 minute demonstration ride for boats from his Edgewater dealership through the Ponce Inlet prior to the enactment of speed restrictions, now takes 45 minutes. Water-skiing is impossible in the slow speed zone, and because he is a professional skier, Mr. Godfrey has to use a freshwater lake in Volusia County to ski at speeds exceeding 35 miles per hour. The nearest available freshwater lake is 35 miles from Edgewater. For nonprofessionals, water-skiing is still available in a 35 mile per hour designated water sports area near a power plant. That area is particularly congested on weekends. The water temperature is usually below 68 degrees in December, January and February. Surface temperatures go as low as 58 degrees. The rule also applies to jet skis and other types of personal watercraft, skies which average 300 pounds in weight, and extend approximately three inches into the water and have no propellers. These watercraft are not equipped with speedometers. Some barges on the St. Johns River extend six feet into the water and have not had the speed at which they operate affected by the rule. The speed allowed for boats depends, in part, on the type of hull. Mr. Godfrey knows how to determine if a boat is operating on a plane, not causing a wake, and coming off plane. A United States Coast Guard licensed ocean master, Edward J. Stupack, Jr., operated commercial fishing, diving and tour boats in Volusia County to see shuttle launches and to tour Tomoka State Park. The speed limits have caused him to eliminate Tomoka State Park tours, because trips that took four hours now take a full day. Shuttle launch tours which previously took 1 1/2 hours to the shuttle, now take 3 to 4 1/2 hours to the shuttle site. Registration for the Greater Daytona Strike and Fish Tournament has fallen from 250 boats to less than 200 in the past two years. At slower speeds, more carbon collects in boat engines, and more maintenance is required. In addition, exhaust fumes and heat make boat rides less comfortable at slow speeds. In eleven years of boating in eastern Volusia County, Mr. Stupack has seen two manatees both hugging the shoreline, one going out Ponce Inlet to sea and another around Rock House Creek. There is undisputed expert testimony in this case, however, that manatees do not always, or as a general rule, travel along the shoreline. Mr. Stupack has not applied for an exemption from the rules because he does not believe his small, part-time business has enough clout. In the 50 miles of Intercoastal Waterway from Flagler to Brevard County, eight of the total ten and a half miles regulated were regulated idle speed areas for boating safety prior to the manatee protection speed limits. The manatee slow speed zone resulted in the addition of two and a half miles of regulated area. There are two designated recreational areas along the 50 miles. DEP relied, in part, on the 1988 report of the Marine Manual Commission to support regulation in Eastern Volusia County. Western Volusia County (St. Johns River) Richard E. Rawlins, the owner and operator of a fish camp in Deland with a 150 boat slip and 59 unit campground, operates guided fishing tours exclusively in the St. Johns River Basin from Lake George at Putnam County to Lake Monroe in Seminole County. Prior to the adoption of the rule, idle zones existed around bridges and marinas on the St. Johns. Mr. Rawlins operated guided fishing tours at speeds of 40 to 45 miles per hour. The camp is close to bankruptcy having gone from 8 to 3 employees, from 80 to 85 percent to 10 percent wet storage occupancy and 30 to 35 percent dry storage occupancy. Having received three tickets and many warnings for exceeding the speed limit, Mr. Rawlins has reduced, by approximately half, his own recreational boating and fishing. Pulling persons on innertubes has also been eliminated by slow speeds, which he estimates equates to 5 to 7 miles per hour, as compared to innertubing at 40 miles per hour prior to the rule. Although, innertubing at 40 miles per hour was probably unsafe. Mr. Rawlins 20 foot boat with a 200 horsepower engine gets up on a plane at approximately 28 miles per hour and maintains a plane at 25 miles per hour. Prior to the rule, water-skiing on the St. Johns occurred primarily between Markers 38 and 20 at Cross Creek. The area now has a 30 mile per hour speed limit above Marker 32 and 25 miles below it. From the fish camp to the lower basin of the Hontoon Dead River takes over four hours, as compared to 45 to 50 minutes by boat prior to the adoption of the rule. The camp's operation of bass fishing tournaments has been eliminated by the inability to cover greater distances in shorter periods of time. In 32 years of St. Johns River boating and fishing, Mr. Rawlins estimates having seen manatees on one of every 18 to 20 trips, although the waters of the St. Johns River and its tributaries are relatively dark. He recalls one boat related manatee killing near his camp two and a half years ago, and a couple more at the Hontoon Dead River at about the same time. Recently, he has seen manatees outside of the Blue Springs area near Marker 20. Prior to that, he had not seen manatees in the area for 60 to 70 days. Although it varies, generally in December, January and February, the guide sees up to 70 manatees congregating in Blue Springs. When water temperature drops below 68 degrees in the rest of the river basin, the manatees move to Blue Springs because of its constant water temperature of 72 degrees. Mr. Rawlins does not need a speedometer to determine whether his boat is settled in the water. Because different boats settle differently depending on the type of hull, Mr. Rawlins believes Marine Patrol enforcement is not uniform. The speed limits in the areas north of the camp in the Norris Dead River to Lake Woodruff are at least 25 miles per hour, except for areas of idle zones established for marinas and for public safety, but not under the manatee protection rules. Access to southern fishing areas through the Hontoon Dead River have been adversely affected by the rule. Mr. Rawlins has not filed any written application for an exemption from the rule. He claims to have applied and been turned down by telephone. One boat manufacturer in Volusia County has received an exemption to test its boats at higher speeds. William B. Flowers, Sr., is a fishing guide who lives near the Lake Beresford Peninsula, and operates a 14 foot boat powered by a 48-horsepower motor at slower speeds than 300 foot long barges pushed by tugboats with two five foot propellers. It now takes approximately 4 hours to reach the areas of the Wekiva, River which he could reach in 35 minutes prior to the adoption of the rule. He will not apply for an exemption from the rule based on concern for his neighbors who would still have to adhere to the slow speeds. Lake Beresford is too crowded with fishermen to also accommodate water-skiers. Lake Woodruff and Lake Dexter are in a Federal Wildlife Refuge infested with alligators. On the St. Johns River, three miles of idle speed zone is imposed for boating safety and an additional nine-tenths of a mile for manatee protection, seven miles around Blue Springs and south of it, and another four and a quarter miles going into the southern Norris Dead River. The best estimate is that two thousand manatees live in Florida waters. Up to 76 manatees spend some time during the winter months in Blue Springs, particularly when water temperatures elsewhere drop to 20 degrees Centigrade or 68 degrees Fahrenheit. As water temperature approaches 50 degrees, manatees stop feeding and must get to warmer water to survive. Except for times of the most severe cold fronts, manatees in Blue Springs venture out into the St. Johns River system on a daily basis. In general, they venture out 12 kilometers from the springs, but have been known to go to Jacksonville. Mr. Flowers sees manatees around the springs from December to early March, and a few in Lake Beresford when there is grass left in the lake. The Regulations Rule 16N-22.003(6) authorizes exemptions for commercial fishermen and professional fishing guides and adopts, by reference, a written application form. Exemptions may not be granted for speeds in excess of 20 miles per hour nor in "motorboat prohibited" and "no entry" zones. There have been no denials of exemption applications from Volusia County. One exemption has been granted in Volusia County, other applications are pending. DEP relied, in part, on the Bengston study of manatees in the St. Johns River, which shows manatees move from one area to another depending on the availability of grasses for feeding. DEP also relies on the federal Endangered Species Recovery Plan for Manatees, which lists as its first priority reducing boating speeds in order to reduce boating-related accidental manatee deaths. A killing of a manatee by personal watercraft has been reported in Puerto Rico. There are no documented cases of manatees being killed by airboats. The rules apply to personal watercraft and airboats. Although, there was undisputed expert testimony that exemptions are available for airboats in some slow zones. In the last 15 to 20 years, an average of two manatees a year have been killed in Volusia County. There was no evidence of the types of watercraft causing the fatal injuries. Average boating speeds in Broward, Palm Beach and Pinellas Counties are 26 to 28 miles per hour, and lower in the rest of Florida. The majority of smaller recreational boats plane safely at speeds of 25 miles per hour or less. Because of its size and depth of the hull, DEP acknowledges that a barge going 5 miles per hour may pose more danger to manatees than smaller vessels traveling faster. The meaning of slow speed, as taught to Marine Patrol officers, is that a vessel is fully settled and level in the water and the wake does not endanger other vessels operating on the water or tied up along the shore. If an officer approaches a boat which settles into the water after reducing its speed, then the boat has not been operating at a slow speed. The view from a moving boat is a poor vantage point to determine the presence of manatees. Manatees are only able to move at speeds up to 15 miles per hour for short distances. To allow vessels to plane at approximately 20 miles per hour, 25 miles per hour zones have been adopted due to the absence of lower effective boat speeds between slow and 25 miles per hour, at which a boat could plane. The regulations also include 30 and 35 mile per hour speed zones. At 30 miles per hour, virtually all vessels, except the largest cigarette boats, can plane. At 35 miles per hour, innertubing, parasailing and water-skiing are possible if the water is deep and wide enough, except for barefoot and professional water- skiing. Although many boats are not equipped with speedometers, relatively accurate and inexpensive ones are available to determine speeds in excess of 10 miles per hour. Personal watercraft and jet skis cannot be equipped with speedometers. Other methods for determining speed are frequently used by boaters. Some of the higher speed zones in Volusia County decrease to 25 miles per hour at night, although moving boaters are unlikely to see manatees and manatees are unlikely to see boats. Manatees are able to see only two or three feet ahead, depending on water clarity, but there was unrefuted expert testimony that they are more aware of surroundings in daylight and better able to sense where to move to avoid boats.
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.
The Issue Whether Petitioner, Miami Yacht Divers, Inc., is entitled to reimbursement for cleanup costs.
Findings Of Fact The Respondent is the state agency charged with the responsibility of administering claims against the Florida Coastal Protection Trust Fund. Petitioner is a company located in Dade County, Florida, which performs commercial diving operations. Such operations include oil pollution containment and clean-up. At all times material to the allegations of this case, Dan Delmonico was the principal officer or owner for the Petitioner who supervised the operations of the company. In April of 1993, Mr. Delmonico discovered a fuel discharge next door to the premises of Defender Yacht, Inc., a company located on the Miami River in Dade County, Florida. The source of the discharge was an abandoned sunken vessel. This derelict vessel had no markings from which its ownership could be determined. Upon discovering the vessel, Mr. Delmonico did not contact local, state, or federal authorities to advise them of the discharge. Instead, Mr. Delmonico contacted several colleagues whose help he enlisted to assist him to clean up the discharge. In this regard, Mr. Delmonico procured the services of a diver and a crane company to remove the vessel from the water. Additionally, Mr. Delmonico utilized a boom and oil absorbent clean-up pads to remove the discharged fuel from the water. In total, Mr. Delmonico maintains it took four work days to complete the removal of the discharge and the salvage of the derelict vessel. At no time during this period did Mr. Delmonico contact local, state, or federal authorities to advise them of the foregoing activities. No official from any governmental entity supervised or approved the clean-up operation or salvage activity which is in dispute. After the fact Petitioner filed a reimbursement claim with the United States Coast Guard. Such claim was denied. Upon receipt of such denial, Petitioner filed the claim which is at issue in the instant case. In connection with this claim with Respondent, Petitioner submitted all forms previously tendered to the Coast Guard including the standard claim form, labor receipts, rental receipts, supply receipts, trailer and storage receipts, cash expenses, a job summary, and photographs. On or about September 20, 1996, Respondent issued a letter denying Petitioner's claim for reimbursement for expenses associated with the above-described salvage and clean-up activities. The grounds for the denial were the Petitioner's failure to obtain prior approval for the activities and the absence of "good cause" for the waiver of prior approval. Additionally, the Respondent maintained that Petitioner had failed to provide evidence that a pollutant discharge existed and that the removal of the vessel was necessary to abate and remove the discharge. It is undisputed by Petitioner that prior approval for the clean-up activities was not obtained. Petitioner timely disputed the denial and was afforded a point of entry to challenge such decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's claim for reimbursement. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathelyn M. Jacques Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 N. Paul San Filippo, Esquire Seidensticker & San Filippo Parkway Financial Center 2150 Goodlette Road, Suite 305 Naples, Florida 34102
Findings Of Fact The Petitioner in this action is the City of Clearwater, Florida, a municipality in the State of Florida which provides governmental services to the citizens within that community, to include police protection. It has among other powers, the power to hire and dismiss employees and in keeping with that authority, the City has enacted Ordinance No. 1831, pursuant to Chapter 21153, Special Laws of Florida, 1941. This ordinance deals with a career civil service system for employees of the City of Clearwater and it sets forth the rights which an employee would have if that employee had been accused of misconduct. A subunit within the City of Clearwater is the Clearwater Police Department which has rules and regulations which would apply to the employees within that Department. This case concerns charges placed by the Petitioner, City of Clearwater, against the Respondent, Danny Fivecoat, who held the position of Sergeant in the Clearwater Police Department on July 25, 1980. Those charges placed under the terms and conditions of a "Termination Dismissal Notice" which may be found as Joint Exhibit No. 3, admitted into evidence, set forth the accusations as alluded to in the Issues statement of this Recommended Order. The termination and dismissal notice was placed against the Respondent on December 15, 1980, when he was relieved as a police officer and dismissed from employment with the City of Clearwater. This action was taken in keeping with the authority of City of Clearwater Ordinance No. 1831 and pursuant to Rule 14, Section 6, Civil Service Rules of Clearwater, Florida. Subsequently, the Respondent attempted to explain and answer the charges and specification placed against him, but the explanation and answer were found to be insufficient by the appointing authority, City Manager, City of Clearwater, Florida, and pursuant to the terms and conditions of City of Clearwater Ordinance No. 1831, Section 2-38, the Respondent requested a formal hearing to be held before the Division of Administrative Hearings. That formal hearing was held in keeping with the terms of the aforementioned ordinance and the agreement between the City of Clearwater and the Division of Administrative Hearings to provide a Hearing Officer for these matters. See also Subsection 120.65(6), Florida Statutes. The hearing in this cause was conducted on March 25, 1981. In July, 1980, while employed as a sergeant in the Clearwater Police Department, the Respondent was assigned as supervisor of a TAC unit. Within that unit were five (5) or six (6) subordinate officers to the Respondent. One of the duties of the TAC unit in July, 1980, concerned an effort to ascertain the identity of a person or persons who were suspected of committing the felony offenses of burglary and arson at a commercial premises now known as Gulf Branch Saloon and formerly known as Bobby Sands 60. This bar was located on State Road 60 within the corporate limits of the City of Clearwater, Florida. To apprehend the offenders, Fivecoat established a surveillance network in the area of the bar location. The rough details of that network may be seen as Employee's Exhibit No. 6, admitted into evidence, which is a sketch, not to scale, depicting surveillance locations in July, 1980, and in particular, on July 25, through July 27, 1980. The numbers 1, 2 and 3 depict surveillance points of members of the TAC unit who were on foot. The word van indicates the location of the command post of the surveillance unit and in addition, there were two unmarked automobiles that were east and west of the location of the bar. These locations are not depicted with any particularity. The primary surveillance was being conducted by the three individuals shown by the numbers on Employee's Exhibit No. 6, with the idea being that from the three locations, the entire bar area could be surveilled. The van served as a command post and a rallying point for the officers on the surveillance team and was used as a location for taking breaks and meals while on the surveillance assignment. Those persons in the outlying surveillance posts would come to the van to take breaks and to have their meals after being relieved by Respondent and an Officer Adamson. Officer Adamson was assigned to drive the van and to assist Sergeant Fivecoat. The van itself was not equipped as a police unit per se, it was unmarked and did not have police emergency lights or sirens or communications equipment and was not designed for pursuit responsibility, although it had been used as mobile surveillance and on occasion, Officer Adamson had attempted to use it as a pursuit vehicle. The Respondent did not find it to be an appropriate pursuit vehicle, he did, however, feel that it could be used as mobile surveillance and as an apparatus for blocking suspects who were fleeing a scene of a crime in an automobile. The van had two front seats and other additional seating that had been placed there by arrangement of members of the TAC unit and it contained bicycles to be utilized for transportation in the area of a surveillance setting. The van was not primarily used for the surveillance, but it did allow a view of the west side of the subject bar and this observation was principally the assignment of Officer Adamson. On the evening of July 25, 1980, prior to setting up the surveillance operation alluded to herein, the Respondent and members of his unit went to a local restaurant in Clearwater, Florida, to have dinner and to discuss the plans of operation for that evening. While at the restaurant, the Respondent and one Kim Dubois, an employee in the State Attorney's Office which has jurisdiction in Clearwater, Florida, engaged in a conversation through which the woman Dubois determined that the surveillance activities were ongoing, specifically that the Respondent could be found in the parking lot of the Western Sizzler on State Road 60 later on that evening. In the course of this conversation, Fivecoat let it be known that it would be acceptable for Dubois to come to the stakeout and carry on a conversation while the surveillance was ongoing. Between 2:45 A.M. and 3:00 A.M., on July 26, 1980, Kim Dubois and one Diana Scanlan, another employee of the same State Attorney's Office, went to the location of the van in the Western Sizzler parking lot. At that time, the surveillance operations had been underway for a period of approximately an hour and forty-five minutes. The two women sat in their automobile and talked to Sergeant Fivecoat and Officer Adamson who were seated in the van. Fivecoat was on the passenger side of the van. At times the women were outside their car talking to the officers who remained in the van. Other officers who were on the surveillance team came to the van while the women were present and Officers other than Adamson and Fivecoat entered into conversation with the women. The two women remained in the area of the van engaging in a conversation until around 5:00 to 5:30 A.M., at which point they left the area of the surveillance and the members of the surveillance team left shortly thereafter. Nothing other than the conversation between the women and Respondent and other members of his team took place and no burglary or other incident occurred which required police intervention. Neither Fivecoat nor other members of his team asked the women to leave the area of their surveillance. While these events were going on, cars were operating on State Road 60 and at times, other persons were in the parking lot of the Western Sizzler eating establishment. None of the officers were wearing police uniforms on this occasion nor were they in uniform on the night of July 26, 1980, in the early morning hours of July 27, 1980. Again, in the early morning hours, around 2:45 to 3:00 A.M., July 27, 1980, the women came to the location of the van in the parking lot of the Western Sizzler where the Respondent and Officer Adamson were located. The surveillance team members were located in approximately the same positions as depicted in Employee's Exhibit No. 6. Initially, the women sat in their car and talked to the Respondent and Officer Adamson who were seated in the van, until the police officers ran out of soft drinks and the women departed and brought soft drinks back to the police officers in the van. The drinks were given to the officers and the women were allowed in the van, into the back part of that vehicle. While they were inside, the side cargo door remained open and no other matters transpired between the women and the police officers other than conversation between them. Sergeant Fivecoat never indicated that the women should not be in the van and the women were lead to believe that it was acceptable for them to be inside. The women remained in the van for approximately an hour and left the scene of the surveillance around 5:00 to 5:30 A.M. and the Respondent and members of his team concluded the surveillance shortly thereafter. Again, the pattern of traffic on State Road 60 and in the Western Sizzler parking lot was essentially the same as the evening and morning before and no criminal violation occurred which required the action of the police officers in the TAC unit. Had such activity occurred as was the expectation of sergeant Fivecoat, the members of the TAC team outside the van proper would have been primarily responsible for enforcement and he and Adamson were mostly responsible for relieving those officers during breaks. Nonetheless, Sergeant Fivecoat was the overall supervisor and responsible for the surveillance operation in question. On the second night and morning, other officers came to the van and entered into conversation with the women. On the second morning and evening, neither Sergeant Fivecoat nor any members of the TAC unit asked the women to leave the area of the surveillance. Sergeant Fivecoat knew that the presence of the two women at the TAC command post was in violation of the prohibition against their presence as set out in Rule 23, Rules and Regulations of the City of Clearwater Police Department.
Recommendation The Respondent's Composite Exhibit No. 5, admitted into evidence, is a compilation of fitness reports and other items related to the Respondent's performance as a police officer. These items are taken from the personnel file of the Respondent as administered by the Petitioner. With the exception of the incident occurring in June, 1977, related to a liaison of a sexual nature between the Respondent and a female which occurred in the months of March or April, 1977, for which the Respondent was given a ten-day suspension, the Respondent has not been disciplined in the past and has an acceptable record. The details of the other disciplinary action may be found in the Petitioner's Exhibit No. 1, admitted into evidence. The actions of Sergeant Fivecoat, as set forth in this Recommended Order, related to the incident involving the two civilian females is reprehensible and having occurred with the knowledge of Sergeant Fivecoat that he was committing a violation is inexcusable. Nonetheless, it is not of such magnitude that it would warrant the ultimate imposition of the penalty of dismissal as would be contended for by the City Manager, City of Clearwater. Likewise, the recommendation of demotion from Sergeant to patrolman and a five (5) day suspension as made by the interim Police Chief would seem too lenient. Under the circumstances, the recommendation herein would be that Sergeant Danny J. Fivecoat be reduced in grade to patrolman and be suspended for a period of thirty (30) days to run from the entry of a final order in this cause. 1/ DONE and ENTERED this 17th day of April, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1981.
The Issue By this action Petitioner seeks to recover costs, expenses and damages associated with state response to an oil spill incident occurring February 26, 1987, within three miles of the Florida shoreline. Respondent's vessel was responsible for that spill. In particular the costs, expenses and damages claimed are related to salaries, per diem allowances, Federal Express charges, beach sand replacement, equipment, use of a cellular phone, and consulting work at the shore and off site. Petitioner also seeks damages for bird mortality resulting from the spill. See Chapter 376, Florida Statutes, and Chapter 16N- 16, Florida Administrative Code.
Findings Of Fact On the evening of February 26, 1987, the motor vessel Fernpassat struck the south jetty at the entrance to the St. Johns River at a location within three miles of the Florida shoreline. In doing so it ruptured the hull and spilled a substantial amount of heavy fuel oil. The type of the oil was No. 5 or 6 Bunker C. A preliminary estimate placed the amount of oil in excess of 100,000 gallons. While the true amount may have been somewhat less, it was a significant spill in that it substantially threatened the public's welfare and the environment and generated wide public interest. Petitioner's exhibit 3 is a map which depicts the basic location where the vessel collided with the jetty with an "X" mark. The area impacted by the discharge ran from roughly Atlantic Beach, Florida, to Guana State Park in St. Augustine, Florida. This is approximately 25 miles of beach front. Beach property over which Petitioner has regulatory and proprietary responsibility had oil deposited upon it. The oil spill killed or injured a number of birds. The event was responded to by the "Federal Region IV Regional Response Team" (RRT). The federal on-scene coordinator (OSC) was Captain Matthew Woods, U.S. Coast Guard. The RRT, through management and control provided by the OSC, took necessary steps to combat the effects of the spill. Respondent immediately accepted responsibility for the cleanup through the use of a consultant and cleanup contractor. Under this arrangement the OSC monitored the contractor's cleanup efforts to make certain that the job was done satisfactorily. Florida officials were part of the RRT. Rule 16N-16.009(21), Florida Administrative Code, calls for personnel from Petitioner; the State of Florida, Department of Environmental Regulation (DER); and the State of Florida, Department of Community Affairs (DCA) to represent state interests as members of the RRT. Each of these agencies participated as members of the RRT. This furthered the legislative intent expressed at Section 376.021(6), Florida Statutes, to support the RRT through implementation of the "Federal Water Pollution Control Act," which is also known as the "Clean Water Act," 33 U.S.C. ss. 1251-1376. By its efforts the RRT promoted the removal of the oil in accordance with a national contingency plan. Pursuant to Section 376.021(6), Florida Statutes, the state is expected to complement applicable provisions within the "Federal Water Pollution Control Act" as well as render the support previously described. Both the support and complementary functions of the state are part of Florida's "Pollutant Spill and Prevention Control Act," Sections 376.011-376.17, 376.19-376.21, Florida Statutes. Chapters 16N-16, Florida Administrative Code, more completely identifies the role played by the state agencies in this instance. This chapter was adopted pursuant to authority set out in Section 376.07, Florida Statutes, which, among other things, empowered Petitioner to make rules which developed and implemented criteria and plans to respond to spills such as the one at issue. In its complementary role the state has established a "State Response Team" (SRT). This organization in defined at Rule 16N-16.009(13), Florida Administrative Code. It is constituted of predesignated state agencies available continually to respond to a major spill. This incident was a major spill or discharge as defined in Rule 16N-16.009(18), Florida Administrative Code. The predesignated state agencies, pursuant to the rule defining the SRT and Section 376.07(2)(e), Florida Statutes, act independently of the federal authorities, although they are expected to cooperate with the federal authorities in the efforts at cleanup. What that meant here is that notwithstanding the concerns which Captain Woods had and the state participation in the RRT through Petitioner, DER and DCA, there was a parallel function by the SRT which had its own mandate. This allowed the SRT to pursue an independent agenda in the spirit of cooperation with the OSC in an attempt to protect the resources over which the state has jurisdiction, including the beach front and birds. Both Captain Woods and the consultant to the spiller, James L. O'Brien, who is a man of considerable credentials in giving advice about oil spill problems, expressed their understanding of the interests which the state might have in carrying out its functions and did not find that reality a hindrance in performing their duties. As a result, even though state employees and equipment and consultants to the state had limited utility for the OSC and the consultant to the spiller in carrying out their duties, it does not follow that claims by the state for reimbursement in categories set out in the statement of issues must fail unless found to support the OSC or spiller's choice in attempts at cleanup. The question is whether the costs, expenses and damages are reasonably related to support for the RRT or complementary of that function through the SRT and owed or expended from the Florida Coastal Protection Trust Fund (Fund) for recoverable items. See Section 376.11, Florida Statutes. Petitioner's exhibit 15 is a copy of the state contingency plan. See Section 376.07(2)(e), Florida Statutes. It identifies the membership of Petitioner, DER and DCA. Other claimants for costs, expenses, and damages who were involved in the response to this incident as predesignated agencies are the Florida Game and Fresh Water Fish Commission (Commission), the State of Florida, Department of Transportation (DOT), and the Attorney General. The state contingency plan explains the operational responsibilities of state agencies when responding to the incident. This is a more specific reference to those responsibilities as envisioned by the general guidelines announced in the "Pollution Spill Prevention and Control Act." Having considered the testimony and exhibits in the context of the state support and complementary role in responding to the spill contemplated by the aforementioned laws, regulations and contingency plans, the costs, expenses and damages sought by the Petitioner are reasonably related to those purposes. Those costs, expenses and damages are detailed in Petitioner's exhibit 16 and summarized in Petitioner's exhibits 8 and 9. With the exception of $15,654.37 in costs and expenses for Petitioner's Executive Office and Division of Law Enforcement and $3,336.16 for salaries for the Commission, DOT and DCA, all claims for expenses and costs have been paid from the Fund. Petitioner wishes to impose the costs, expenses and damages in the state response whether or not claims were disbursed from the Fund. The damage claim associated with future beach re-nourishment by replacement of sand that had been befouled by oil and needed to be removed is a reasonable claim in the amount of $10,222.50. It has been paid from the Fund and is held in the Erosion Control Trust Fund until needed. The on-scene consulting fee of $3,525.00 and the oil spill assessment study fee of $9,880.00 commissioned by Petitioner through Jacksonville University are reasonably related to the Department's role in response to the spill. As Petitioner's exhibit 8 depicts, $30,312.53 has been disbursed from the Fund in costs, expenses and damages reasonably related to the response to the spill. There remains unpaid from the Fund the aforementioned costs and expenses in the amount of $18,990.53 which are reasonably related to the response to the spill. Those latter amounts, although presented for payment from the Fund by the agencies in question, were not paid, based upon some fiscal anomaly. By inference, it does not appear from this record that the Fund owes the agencies for these claims. According to Section 376.13, Florida Statutes, on February 27, 1987, Governor Martinez declared a state of emergency in response to the oil spill. That proclamation was withdrawn on March 25, 1987. The activities for which claims for costs and expenses are advanced transpired in the time frame of the state of emergency declaration. The amount which Respondent has expended in the cleanup effort is $700,000 plus or minus $200,000. None of this money has been paid to satisfy claims for costs, expenses and damages previously described. While it has been found that costs, expenses, and damages are reasonably related to the state's purposes in responding to the spill, not all items are recoverable. They are only recoverable if recognized for recovery by Chapter 376, Florida Statutes, and Chapter 16N-16, Florida Administrative Code, and owed or expended from the Fund. Petitioner's claims in its exhibit 8 in the amount of $12,901.30 and DOT claims for $675.19 in that exhibit qualify for recovery as well as the on-scene consulting fee of $3,525.00. Other claims do not qualify with the exception of a limited recovery for bird mortality. Reasons for this fact finding are set forth in the conclusions of law. Petitioner has disbursed $176,058.00 to the Commission for damages related to alleged bird mortality. This money was disbursed from the Fund. Petitioner now concedes that the amount should be reduced by half. This recognizes that the cost estimate for damages dealt with pairs of birds not single birds. Petitioner now asks for $88,075.00. Two hundred fourteen (214) birds are said to have died as a result of the spill, according to Petitioner. Petitioner seeks damages for each of these birds. The number proven to have been killed by the event and the theory upon which the damage claim is predicated leads to a result which diminishes the claim for reasons to be explained. As with other claims, Section 376.021.(4)(c), Florida Statutes, anticipates the payment of damages from the Fund. Section 376.11(1), Florida Statutes, is in aid of recovery of damages, as is Section 376.11(4)(d), Florida Statutes. However, these claims must be susceptible to proof that readily identifies and explains valuation methods of the birds and recognizes the predicate of establishing the actual number lost in this episode. For the most part, Petitioner has failed in the endeavor. Mark Damian Duda is a wildlife biologist with the Commission. He earned a bachelor of science degree from West Virginia University and received his master's degree in natural resource policy and planning from Yale University, both with honors. He was assigned the task of trying to arrive at an acceptable method for valuing birds that had been killed. His assessment is generally set forth in a report, a copy of which is Respondent's exhibit 3. Having considered a number of options, he reached the decision to employ what he describes as the replacement value method. Quoting from his report concerning this method, he has this to say: Replacement Value Method We believe the replacement value method is the most useful and logical method to determine the value of wildlife lost in the February 27 Jacksonville oil spill. A replacement cost approach can avoid many of the problems involved in attempting to estimate the use of value of biological resources. Under the replacement cost approach, the resource is valued at what it would cost to replace it. If the resource is replaced, the problems of identifying all its uses, the monetary value of these uses, and the users affected by the resource loss are eliminated, except for the period between the initial loss and the replacement. Four Florida institutions were asked to estimate the cost of obtaining specimens of the birds killed in the Jacksonville oil spill, or the price at which they would be willing to sell members of each species. Their estimates are shown in Table 4. One problem with most of these estimates is that they are not true replacements costs; but rather the cost of collecting already existing specimens from the wild and redistributing them to the Jacksonville Area. This does not represent true replacement, since true replacement requires a complete recovery of the species population. This can be most clearly assured by using only captive breeding programs for replacement. However, many of the species in this list probably cannot be bred in captivity. Therefore, true replacement of these species through captive breeding is probably impossible. It is absurd to value them at zero since they cannot be replaced. Therefore, this section presents some calculations on the assumption that they could be redistributed or replaced. Table 1 presents the replacement costs for the birds. The numbers were derived by multiplying the number of dead birds times the average replacement costs given in Table 4. Using this approach, the total replacement costs for the birds estimated to have been killed in the Jacksonville oil spill is $176,058.00. It should be noted that we use a deliberately conservative approach, using body counts only, and thereby underestimating the total mortality. There is an increasing amount of scientific literature indicating that actual body counts appear to significantly underestimate the total mortality resulting from a spill. For example, there have been a variety of experiments that show only 5 percent to 25 percent of the birds that die at sea, wash in or beach themselves on shore. The percent of loons found is probably even lower because of their low buoyancy and wide-ranging distribution. An alternative approach to estimating replacement costs is to estimate the cost of creating new habitat or enhancing existing habitat to support enough nesting pairs of each species to replenish the population. Again, to represent true replacement costs, this should be new or enhances habitat, not just the cost of acquiring already existing habitat. Tables 1 and 4 within Respondent's exhibit 3 are replicated here for convenience as Appendix 2 and Appendix 3, respectively. The numbers of birds shown in Duda's table are not numbers about which he has direct knowledge. They are numbers purportedly obtained from Tim O'Meara and Peter Southall, biologists who work for the Commission who got their information from the Central Region and Northeast Region, respectively. In particular, they allegedly received their information from rehabilitators working in the two regions. Neither biologist testified at hearing, and the exhibits do not satisfactorily establish what involvement the biologists had in a direct inventory of birds, if any, or the other sources of their information which was then given to Duda in preparing his report. The rehabilitators in the Central Region did not testify nor were any exhibits presented which spoke to records kept by those individuals that set out bird deaths in that area. The only person who presented any reliable information concerning bird mortality was Cindy Mosling, rehabilitator in the Northeast Region. Any records which she maintained were not produced at hearing. Nonetheless, she did remember some details concerning bird mortality, and from this testimony 56 common loons, 3 gannets, 1 black skimmer and 2 hooded mergansers are found to have died as a result of the oil spill. The replacement value method by Duda speaks to the fact that his method does not constitute a complete recovery of the species population. Instead, what is shown in Respondent's exhibit 3 is averaging of estimates from Table 4 on costs for collecting existing specimens from the wild and releasing them back to the Jacksonville area after a period as opposed to a captive breeding program. That explanation is not correct, either, because there is no intention to release birds to the wild after raising them or rehabilitating them in captivity in one of the Florida institutions mentioned in Table 4. Moreover, only one of those programs has been relied upon by Petitioner in arriving at a cost estimate. That program is Sea World. As a consequence, the cost analysis in Table 1 related to hooded mergansers is incorrect in that it reflects an average of $150 and not the $200 quoted by Sea world. Again, the prices reflect pairs and not single birds. Robin Friday is the curator from Sea World who supplied cost estimates for pairs in Table 4 to Respondent's exhibit 3. He arrived at his price estimates in a 15 to 20 minute telephone conversation with Duda. To the extent he had no actual experience with price lists reflecting cost of a specie, he assumed that theoretical permits would be issued to collect live birds or eggs in the wild and that he would keep them in a captive environment, hoping they would breed while in captivity. In the latter category, the costs to promote the outcome of breeding in captivity formed his estimate. It can be seen that this departs from Duda's method for valuation. Notwithstanding this fact, Duda relied upon the price quotation by Friday. The main species of birds which Friday has had experience with are waterfowl. Of the species which have been verified as lost in this incident, he had had experience with common loons and hooded mergansers. The hooded merganser is a waterfowl with which he has close experience in breeding, acquisition and disposition. The common loon is a shore bird. In his career he has worked to rehabilitate two or three of those birds. He has had no experience with gannets and black skimmers, which are shore birds. As Friday identified, waterfowl may be sold, shore birds may not. Sale of the shore birds is prohibited by law. His price quotes for the hooded mergansers are from actual experience in sales. His quotations on the other species are matters of conjecture in collecting, housing, feeding and establishing a breeding program for them based upon limited experience in rehabilitating common loons and no experience with gannets and the black skimmer. The price estimate on the hooded merganser of $100 per bird is accepted. The price estimates for common loons, gannets and black skimmers are not. They are too speculative. Jean Benchinol is a curator in Gulf Breeze, Florida, who works for Animal Park, Inc. She testified at hearing. She was presented as a witness who could corroborate the Friday opinion on bird valuation. Her cost estimates may be found as Petitioner's exhibit 14, quotes for single birds. She has had direct involvement with hooded mergansers. She has sold those birds and quoted the price at hearing as being $100. This coincides with the price per bird quoted by Friday. For other birds in her price estimates that cannot be bought and sold and that remain at issue here, that is, common loons, gannets and the black skimmer, she categorized them as capable of surviving in captivity or not. The black skimmers can live in captivity and the common loon and gannet cannot, according to the witness. She had had a common loon in captivity before and noted that it did not do well, being more receptive to northern climes. At hearing her opinion about birds that could not survive in the Florida environment was rejected. In this final analysis, that refers to the common loons and gannets. Likewise, having considered her explanation concerning her valuation for the black skimmer, that opinion is rejected. In rejecting this method, the cross examination at hearing concerning valuation for the royal tern was significant in that it pointed out the inexact and unreliable nature of the method. This method contemplated receiving a live bird in her facility and the costs for medication, housing, feeding and staff time for approximately 60 days. In summary, on the subject of bird mortality, there is no inherent prohibition against valuation; birds do have a value that can be measured in monetary terms. Here the effort to arrive at that understanding fails in the inventory of casualties and method of valuation, with a limited exception. It is also observed that the Respondent had paid the rehabilitators to house, feed and nurse birds back to health that were injured, a similar activity to the theoretical exercise envisioned by Duda, Friday and Benchinol.
Recommendation Based upon the consideration of the facts and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which requires the Respondent to reimburse the Fund in the amount of $17,301.58 and dismisses all other charges against Respondent. DONE and ENTERED this 26th day of July, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1990. APPENDIX 1 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1 and 2 are subordinate to facts found. Paragraph 3 is not necessary to the resolution of the dispute. Paragraphs 4 and 5 are subordinate to facts found. The first two sentences of Paragraph 6 are subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. Paragraph 7 is not necessary to the resolution of the dispute. Paragraph 8 is subordinate to facts found. The first two sentences of Paragraph 9 are subordinate to facts found. While it is agreed that the correspondence from Petitioner to Respondent did not indicate that claims for costs and expenses were only subject to collection if paid from the Florida Coastal Protection Trust Fund, in the administrative forum recoupment of costs, expenses and damages may only be permitted for monies owed or expended from the fund. Paragraphs 10-13 are subordinate to facts found. It is acknowledged as set forth in Paragraph 14 that money was transferred from Coastal Protection Trust Fund to the Erosion Control Trust Fund for future beach renourishment. The more relevant fact is whether the claim for damages of value under the renourishment is legitimate and that determination has been made favoring the Petitioner. The concept of using the funds that are being held for purposes of future renourishment is in keeping with a reasonable disposition of the damage claim. Paragraphs 15-24 are subordinate to facts found. The first sentence to Paragraph 25 is contrary to facts found. The second sentence is subordinate to facts found. The third sentence is an accurate statement of what Table 1 contributes but the findings in that table are rejected in part. The first sentence to Paragraph 26 is subordinate to facts found. The second sentence is accepted in the sense of recognizing that a list was maintained; however, that list was not produced at hearing as an aide in determining the number of birds that were killed. The third sentence is rejected. The fourth and fifth sentences are knowledged and those underlying facts were taken into account in accepting the representations by the witness Mosling concerning the number of birds that died as a result of the oil spill which she could recall. Paragraph 27 is subordinate to facts found. Paragraph 28 is subordinate to facts found. Paragraph 29 is not necessary to the resolution of the dispute. The first sentence to Paragraph 30 is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. The first sentence to Paragraph 31 is subordinate to facts found. The second sentence is accepted with the exception that certain categories of water fowl are bought and sold in the free market. Concerning the third sentence, while it is acknowledged that curators are the better persons to attempt valuation, they must have sufficient understanding of the varieties on which they are commenting to have their opinions accepted and their methods of analysis of costs must stand scrutiny. This was not achieved in this instance. The last sentence in Paragraph 31 is not accepted in that the replacement value method was not adequately explained and does not allow a ranking of whether it is inexpensive, or cheaper or some where in the middle. Paragraph 32 is subordinate to facts found. The first sentence to Paragraph 33 is subordinate to facts found. The second sentence is subordinate to facts found as it references hooded mergansers. The other references are to species which have not been found to have been lost to the spill. The last sentence is accepted in the sense that the remaining species have limitations placed upon their use by state and federal law which prohibits the buying and selling. Paragraph 34 in its reference to the cost of hooded mergansers is accepted. The balance of the information was not utilized in that the Petitioner failed to demonstrate that other species had been lost to the spill. In Paragraph 35 of the species that testimony was presented about, only the common loon, gannets and black skimmer pertain. While it is acknowledged that the method that the witness Friday used to estimate the value of those species is an accurate portrayal of his efforts, those efforts were rejected as were those of Ms. Benchinol described in Paragraph 36. In Paragraph 36 the explanation of her methods is correct. The methods were not accepted either in support of the testimony by Friday or in her own right. There is no significance to the discussion concerning the brown pelican and inadequate proof was made that the brown pelicans were lost. Respondent's Facts The first sentence to Paragraphs 1 is subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. As to Paragraph 2, it is acknowledged that Mr. Healey served as the liaison to the RRT and OSC. In the second sentence to that paragraph it is accepted that the state supports the RRT. It also has the function to compliment the RRT and to act independent of the federal response. The first sentence to Paragraph 3 is subordinate to facts found. The second and third sentences are not necessary to the resolution of the dispute. The fourth and fifth sentences are subordinate to facts found. While Paragraph 4 accurately describes the circumstance, this did not deter the state from pursuing its independent function in responding to the spill event. Paragraph 5 accurately portrays the OCS's idea of who was necessary to support the federal response. It does not preclude the activities of other state employees in carrying out their functions. Paragraph 6 is contrary to facts found. Paragraph 7 is a correct statement but does not preclude the state's efforts in its own right at responding to the spill. Paragraph 8 is subordinate to facts found. Paragraph 9 while an accurate portrayal does not preclude the state in its efforts. The same pertains to Paragraph 10. Paragraph 11 is contrary to facts found. Paragraph 12 is subordinate to facts found. Paragraph 13 is contrary to facts found as is Paragraph 14. Paragraph 15 is subordinate to facts found. Paragraph 16 is not relevant. Paragraph 17 is an accurate portrayal of the federal use of the state helicopter but does not preclude request for reimbursement for uses which the state had of that helicopter. Paragraph 18 is subordinate to facts found. The first two sentences within Paragraph 19 are subordinate to facts found. The third and fourth sentences are not relevant to the issue of whether the state was entitled to seek the assistance or Jacksonville University for its own purposes distinct from those of the federal response. The latter sentence is a correct portrayal of the outcome but for reasons different than contemplated by the Respondent. Paragraph 20 is subordinate to facts found. Paragraph 21 is subordinate to facts found. Paragraph 22 is subordinate to facts found in its first two sentences. The third sentence is not accepted beyond the fact that the Department of Interior using a nonconsumptive use technique, whether other federal agencies use that method was not subject to determination from the record. The first three sentences to Paragraph 23 are not necessary to the resolution of the dispute. The fourth sentence is not accepted. The fifth and sixth sentences are subordinate to facts found. As to the seventh sentence, it is not clear that there was the intention of redistributing to the Jacksonville area. The eighth sentence is subordinate to facts found. Paragraph 24 is subordinate to facts found as are Paragraphs 25 and 26. The suggestion of the price for hooded mergansers as set out in Paragraph 27 is not accepted. The lesser scaup was not found to have been lost to the spill. The state price of $100.00 per bird for hooded mergansers is accepted. Paragraphs 28-31 are subordinate to facts found as it pertains to the species that were proven to have been lost. Paragraph 32 is not necessary to the resolution of the dispute. Paragraphs 33 and 34 are subordinate to facts found, with the exception that it has been determined that the number of dead birds which Ms. Mosling can recall involvement with is accepted. Paragraphs 35 through 37 are subordinate to facts found in the species determined to have been lost, with the exception that the actual price for hooded mergansers was $100. COPIES FURNISHED: Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Kenneth J. Plante, General Counsel Lynn M. Finnegan, Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Robert B. Parrish, Esquire James F. Moody, Jr., Esquire Taylor, Moseley & Joyner 501 West Bay Street Jacksonville, FL 32202
Findings Of Fact It is stipulated that Marine Industries Association of South Florida, Inc. (Petitioner), has standing to bring this rule challenge. It is also stipulated that Save The Manatee Club, Inc. (Intervenor), has standing to intervene in this rule challenge. The Department of Environmental Protection (Respondent) has the responsibility of implementing the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes, which involves interpreting the terms thereof. Respondent's responsibility includes promulgating rules to regulate motorboat speeds and their operation incident to the protection of manatees, pursuant to the Act. 4. Respondent's Rules 16N-22.001(2), 16N-22.002(20) and (21), Florida Administrative Code, set forth criteria for determining the state waters in which motorboat speed would be regulated for the protection of manatees. Also, Respondent's Rules 16N-22.010(1)(e) and (g), Florida Administrative Code, establish a seasonal slow speed zone on weekends for a certain area in the Intracoastal Waterway within Broward County and a year-round slow speed and buffer zone in a certain area in the Atlantic Intracoastal Waterway within Broward County for the protection of manatees. The manatee is an endangered marine mammal residing in the southern United States, principally in Florida, and has been declared by the State of Florida as its state marine mammal. Only 900 manatees are considered to be on the east coast of Florida. Respondent uses all available information on the presence of manatees, which includes actual visual sightings as well as any other method to identify their presence. Respondent refers to this information as "sightings." Respondent's information gathering procedure is consistent with established and accepted procedures for the gathering of information on manatees. Aerial surveys are part of the information relied upon by Respondent for its determinations regarding manatees. It is possible, and not uncommon, that aerial surveys may include sightings of the same mammal on different days. Whether a manatee is sighted frequently involves more than just numbers. It also includes a reasonable expectation that manatees will be seen. Aerial survey data is a minimum count to ascertain where the manatees are, not to determine how many exist or their population. Sixty-one aerial surveys were conducted in the waters of Broward County, excluding the Hillsboro Inlet, by Respondent and Broward County for Respondent. During the aerial surveys from 1988 to 1993, sixty-seven to sixty- nine sightings were made in the northern Intracoastal Waterway (NICW) in Broward County. Also, the aerial survey data showed sightings in seven out of twelve, five out of fifteen, and eleven out of eighteen flights. Manatees occasionally travel in the ocean. The aerial surveys included passes over the Atlantic Ocean. The NICW has lowlight transmission and high turbidity. Manatees travel two to five feet below the surface of the water. Because of water clarity, surface conditions and the fact that manatees must be at or very near the surface to be spotted, manatees are difficult to see in the NICW. The aerial surveys revealed an average of one sighting per flight. Lack of sightings in the aerial surveys reflect survey conditions as much as the absence of manatees. Manatees regularly move in and out of the Hillsboro Inlet zone. Manatees use the NICW in Broward County often and are frequently sighted there. When determining whether manatees inhabit an area, all data bases available should be used. The Intracoastal Waterway (ICW) is used by manatees for travel through Broward County. Aerial surveys of the NICW are performed at a lesser density than those performed of the power plants which are warm water refuges. Regular travel corridors constitute essential habitat. The NICW is a major travel corridor for manatees. They migrate through the NICW. Migration means purposeful movement from one point to another, as well as seasonal movement of species in mass. Manatees use the waters of the NICW and the power plants when moving back and forth between Port Everglades and Riviera Beach, and this exchange is documented. More than 200 manatees use both the Port Everglades and the Riviera Beach Power Plants (both warm water discharge areas) as warm water refuges, making repeated trips back and forth in single seasons. Thirty-Eight to forty-seven percent of manatees on the east coast use the Port Everglades area. Manatees inhabit areas where they are found. As to the waters of the ICW, they inhabit it on a regular basis. Moreover, manatees inhabit the NICW virtually continuously in winter and regularly or periodically in the off-winter months. Manatees inhabit Broward County year round, continuously in the winter months and regularly in the off-winter months. Although to a lesser degree, Respondent considers radio telemetry data in its determinations regarding manatees. Radio telemetry is a data gathering technique which is not experimental, but is less revealing when used with manatees. Telemetry data is hard to acquire in the NICW because manatees' behavior of resting and traveling deploys the tag being used in a way which is not available to the satellite. As a result, every tagged manatee is not seen on every satellite pass. Data from telemetry studies show that manatees predominantly travel the ICW, and extremely infrequently in the ocean, and have a regular exchange between the Port Everglades and Riviera Beach plants. Tagged manatees, when located visually, are found in association with others. The behavior of radio-tagged manatees is representative of the population of manatees as a whole. Manatees travel in groups in the NICW. A congregation of mammals means more than one mammal together, without assigning a reason for the congregation. Manatees congregate in areas where they are sighted in groups of two to three or more. All of the available information taken together indicates that manatees congregate in the NICW, using it on a regular and frequent basis. Respondent considers the entire NICW, including the Hillsboro Inlet zone, as a single unit when interpreting manatee sightings because of the types of manatee behavior observed and the character of the NICW. Respondent also considers anecdotal data in its determinations regarding manatees. Anecdotal data is useful for confirmation of, but not for providing new insights about manatees and their behavior. Anecdotal sighting data are consistent with and confirm what is known by Respondent from other sources about manatees. Motorboats kill, maim and disturb manatees. Manatees have scars on their bodies, which are caused by collisions with watercraft. Virtually all manatees have propeller scars and approximately 900 are documented in what is known as the Scar Catalogue. Scar patterns on manatees indicate numerous collisions, some nine to ten times. The Scar Catalogue also indicates that manatees move back and forth between the Port Everglades and Riviera Beach plants. Since 1974, when Respondent started compiling manatee mortality data, of the manatees recovered for which the cause of death could be determined, 522 were attributed to watercraft collision. Of the 522 watercraft collision deaths, twenty-seven manatees were recovered in Broward County, which represents over one-half of the total manatee deaths in Broward County for which the cause of death could be determined. However, the recovery data fails, and is unable, to show where within the ICW or NICW the manatees were struck. After a collision, manatees will seek out a quiet area. It is not unusual and is expected that injured manatees in Broward County will seek refuge at the Port Everglades. Boat traffic poses a threat to manatees. Increased or higher boat traffic poses an elevated or even greater risk to manatees. Broward County waters are utilized by large numbers of boaters. In addition to Broward boaters whose boat registrations have increased eighteen percent between 1986 and 1991, boaters from Dade and Palm Beach Counties and in winter from out-of-state use Broward waters. Boating traffic in Broward County and the NICW is heavier on weekends than on weekdays. There is no change in the traffic for Broward County in the winter months from November through March. More boating occurs during the day than at night on the NICW. A survey of boaters in Broward County relied upon by Respondent indicated that over fifty percent of boaters leave between 8:00 a.m. and noon and return between 2:00 p.m. and 6:00 p.m.; that eighty-four percent of those surveyed were in favor of speed limits to protect manatees; and that fifty-nine percent of those surveyed were in favor of slow speed for the whole county on weekends and holidays from November to March. Comparatively, Respondent's slow speed rule is substantially less stringent than that which was found acceptable by those surveyed and not as stringent as recommended by the federal Fish and Wildlife Service. Several local governments in the NICW adopted resolutions calling for more stringent regulations than Respondent's rule. In an effort to lessen the interference with boaters while also providing an area of protection for manatees in the NICW, the 25 mph speed limit with the fifty-foot buffer zone was adopted. A slow speed zone in the NICW will enhance boating safety. At slow speed, only boats with propeller-on-shaft and a rudder will exhibit an unsafe condition referred to as wobbling. However, virtually no typical recreation boat which is under thirty feet is configured that way.
Findings Of Fact Petitioners, Larry C. and Jan D. Giunipero, reside at 2345 Tour Eiffel Drive, Tallahassee, Florida. On February 29, 1984, they obtained a building permit from Franklin County to construct a single-family dwelling on their lot in Alligator Point, Franklin County, Florida. The Giuniperos engaged the services of a professional engineer to design their beach house. In so doing, the engineer designed the structure so as to comply with the Federal Emergency Management Association (FEMA) guidelines, which are minimum building requirements established by the Federal Insurance Administration to qualify for federal flood insurance. These guidelines have been adopted by the Franklin County Planning and Zoning Department, and insure that the structure can withstand winds of 110 miles per hour. Even before the Guiniperos obtained their permit, respondent, Department of Natural Resources (DNR), was in the process of adopting new Rule 16B-26.14, Florida Administrative Code, which would establish a coastal construction line for Franklin County. Under the proposed rule, a coastal construction control line on Alligator Point would be established, and any excavation or construction activities thereafter on property seaward of the control line would require a permit from DNR, and have to be in conformity with all structural requirements set forth in Rule 168-33.07, Florida Administrative Code. Because the Guiniperos' lot lies on the seaward side of the control line, they were obviously affected by the rule. The rule adoption process was quite lengthy and well publicized. It began in October, 1983 when a public workshop was held in Apalachicola and aerial displays of the control line were placed in the courthouse. Further public hearings were held in Tallahassee in February, March and April, 1984. These hearings were the subject of numerous notices and advertisements in the Florida Administrative Weekly, Tallahassee Democrat, Apalachicola Times, Panama City News Herald, and Franklin County News. Clearly, the agency met all legal requirements in advertising the rule. However, for some reason, neither the Giuniperos or their professional engineer were aware of the pending rule change. Similarly, the Franklin County planner failed to advise them of the imminent rule change even though aerial displays of the proposed line were in the courthouse when the permit was issued. Rule 168-26.14, Florida Administrative Code, was adopted by the Florida Cabinet on April 5, 1984, and eventually became effective on April 30, 1984. As of that date, any construction or excavation work seaward of the control line required DNR to issue a permit unless a dwelling was already "under construction" in which case the project was grandfathered in. The parties agree that petitioners do not fall in this category since the dwelling was not "under construction" within the meaning of DNR rules. A few days before the rule became effective, a DNR engineer met with the Franklin County planner to review all building permits issued since September, 1983 for construction on the seaward side of the control line. The engineer did this so that he could inspect all building sites after the line became effective and determine which, if any, were "under construction" and therefore exempt from DNR permitting requirements. Because of the volume of permits issued to persons seeking to beat the April 30 deadline, and his unfamiliarity with alligator Point, the planner was unable to give the DNR engineer the precise location of petitioners' lot. On or about May 1, 1984, the engineer visited the general locale of petitioners' lot. There was no activity on petitioners' lot, and no permit posted on the site. Accordingly, he assumed a recently completed beach house some 300 feet east of petitioners' lot was actually the Giuniperos' house. Since it was already completed, he merely filed a report the following day indicating that "if the location referenced above is accurate, the structure appeared to be completed at that time." On July 6, 1984, petitioners proceeded to install twenty-three 8" by 8" pilings on their lot at a cost of $1,760. DNR discovered this construction activity a few days later and notified petitioners by telephone that such activity was illegal without a permit. A formal cease and desist order was sent on July 11, 1984, and no activity has taken place since that time. An application for a permit remains in abeyance pending the outcome of this proceeding. The structural requirements of DNR are more stringent than those previously required by Franklin County and FEMA. Indeed, the FEMA guidelines are not a part of a coastal construction regulatory program but are merely minimum standards to meet federal flood insurance criteria. Therefore, while the Guiniperos' proposed dwelling is designed to withstand a windload of 110 miles per hour DNR requires a structure to meet a windload of 140 miles per hour. DNR also recommends that larger and more expensive pilings be used, and that the structure be designed to adequately resist a 100 year return interval storm event. Because the DNR requirements are more stringent, petitioners estimate they will incur total costs of $8,890 just to pull out the old pilings and install larger ones. 1/ Additional costs may be incurred to redesign and build the structure to withstand a wind velocity of 140 miles per hour. By rule, DNR does not grant a waiver of its permit requirements except where a building is already constructed and an applicant desires to make "minor additions" to existing nonconforming structures. The Giuniperos do not qualify for such a waiver.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioners' request for a waiver from the permitting requirements of Rule 16B-33.07 be DENIED. DONE and ORDERED this 11th day of March, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 11th day of March, 1985.
