The Issue At issue in this proceeding is whether Respondent Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Section of General Regulation has violated Section 120.535 F.S. by adoption of a policy which meets the definition of a "rule" under Section 120.52(16) F.S., without complying with the rulemaking procedures established by Section 120.54 F.S.
Findings Of Fact Petitioner originally applied and was licensed as a yacht and ship salesman in June, 1992. To be a salesman, one must be associated with a licensed broker who prominently displays the salesman's license. On April 15, 1994, Petitioner contacted Respondent agency by telephone to discuss renewal of his salesman's license issued June 3, 1992 and due to expire under its own terms on June 3, 1994. At that time, Kathy Forrester told Petitioner that his file reflected that his license had been "cancelled" effective March 10, 1993 due to a letter received on or about March 1, 1993 from Petitioner's employing broker, Frank Stanzel. Mr. Stanzel's letter showed that he was relocating his business from Miami to Ft. Lauderdale and that he wanted his two salesmen's licenses transferred to the new location. He enclosed with his letter the two salesmen's licenses for agency action, as required by agency rules. Mr. Stanzel further reported that Petitioner had left his employ on October 19, 1992, taking his license with him, so Mr. Stanzel could not return Petitioner's license to the agency. On March 22, 1993, five months after Mr. Stanzel heard the last of Petitioner and approximately three weeks after he notified the agency of Petitioner's leaving his employ, Mr. Stanzel's broker's license expired. Under the terms of the agency rules, Mr. Stanzel was required to apply for a new license. He applied. His broker's license was not renewed retroactively, and his new license became effective August 30, 1993. For approximately five months, from March 22, 1993 to August 30, 1993, Mr. Stanzel was not a licensed Florida broker. Neither Mr. Stanzel nor the Respondent agency notified Petitioner of this fact nor did anyone notify Petitioner at that time that his salesman's license was deemed "cancelled" during the broker's lapse. After finding out for the first time on April 15, 1994 that the agency presumed his salesman's license "cancelled" by Mr. Stanzel's notification that Petitioner had taken his salesman's license and left Mr. Stanzel's employ, Petitioner and his father prevailed upon Mr. Stanzel to execute an affidavit dated May 19, 1994 to the effect that Mr. Stanzel had misunderstood, now believed Petitioner had been diligently working at yacht sales after October 19, 1992, and wanted Petitioner's salesman's license reinstated. The affidavit was submitted to the agency. Although Ms. Forrester had misgivings about the affidavit, the agency reinstated Petitioner's salesman's license effective April 29, 1994, after receiving the affidavit (TR 25-28). The reinstated license still had the original expiration date of June 3, 1994. The agency did not reinstate Petitioner's salesman's license retroactive to October 19, 1992 when Petitioner went into construction work fulltime, to the date of Mr. Stanzel's original broker's license expiration, or to the date of Mr. Stanzel's new broker's license. Petitioner accepted his salesman's license as reinstated. Petitioner did not renew his salesman's license on June 3, 1994, so it expired by its own terms. On July 21, 1994, Petitioner filed an application to be licensed as a yacht and ship broker, together with the required bond, fee, and fingerprints. On August 2, 1994, Peter Butler, Head of the Section of Yacht and Ship Brokers, wrote Petitioner a deficiency notice, explaining that the agency regarded Petitioner's salesman's license "cancelled" during the lapse of his employing broker's license. The agency has no rule which specifically states that when an employing broker's license expires, his salesmen's licenses are automatically cancelled. The language employed in the deficiency notice was, "any salesman licenses held by [the employing broker] were considered cancelled (sic) for that period of time [the period while the employing broker's license was expired/lapsed] because they did not have an actively licensed broker holding their license." [Bracketed material added for clarity.] This language is the focus of this proceeding. The deficiency notice did not refer to the prior "cancellation" of Petitioner's salesman's license based on Mr. Stanzel's March 1, 1993 notice that Petitioner had left his employ effective October 19, 1992. The deficiency notice cited Section 326.004(8) F.S. [1993] which provides: Licensing.- (8) A person may not be licensed as a broker unless he has been a salesman for at least 2 consecutive years, and may not be licensed as a broker after October 1, 1990, unless he has been licensed as a salesman for at least 2 consecutive years. Bob Badger, an agency investigator, submitted a report to Mr. Butler dated September 1, 1994 expressing his opinion that even with Mr. Stanzel's after-the-fact affidavit, Petitioner's salesman's license would have been interrupted by the fact that he had no licensed broker holding his salesman's license during Mr. Stanzel's broker's license lapse of five months. He further concluded that Petitioner's salesman's license was "suspended" for a short period for not renewing his salesman's license bond. After review of the investigation report, on September 19, 1994, the agency issued its Intent to Reject Petitioner's broker's application pursuant to Rule 61B-60.002(6) F.A.C. alluding to the deficiency notice and citing Section 326.004(8) F.S., for Petitioner's failure to complete two consecutive years as a salesman. Section 326.004(14)(a) and (b) F.S. and rules enacted thereunder clearly place on the broker the responsibility of maintaining and displaying the broker's and salesmen's licenses as well as providing for a suspension of a salesman's license when a broker is no longer associated with the selling entity. Typically, salesmen turn in their licenses through the original broker for cancellation by the agency and receive new ones when they move from one broker's oversight to another's. Salesmen who are employed by one broker also switch their salesman's licenses to another active broker whenever the first broker disassociates from a yacht sales company and moves to another company, quits, retires, or lets his broker's license lapse. Due to the common dynamics of the employment situation whereby salesmen are under the active supervision of their employing broker in the company office, they usually know immediately when a broker's license is in jeopardy or the broker is not on the scene and supervising them. This knowledge is facilitated by the statutes and rules requiring that all licenses be prominently displayed in the business location. Anybody can look at anybody else's license on the office wall and tell when it is due to expire. If licensees are in compliance with the statutes and rules, no active salesman has to rely on notification from the agency with regard to the status of his own or his broker's license. In the present case, Petitioner removed himself from all contact with Mr. Stanzel as of October 19, 1992. Therefore, he did not know what was occurring in the office or with any licenses. All agency witnesses testified substantially to the effect that since they have been employed with the agency and so far as they could determine since its inception, agency personnel have relied on Sections 326.002(3), 326.004(8), 326.004(14)(a) and (b) F.S. and Rules 61B-60.005 and 61B-60.008(1)(b) and (c) F.A.C. to preclude licensing someone who has not been actively supervised by a Florida licensed employing broker for two consecutive years. More specifically, agency personnel have always applied Sections 326.004(14)(a) and (b) to place on the broker the responsibility of maintaining and displaying the broker's and salesman's licenses as well as providing for a suspension of the salesman's license when his broker is no longer associated with the sales entity. The agency has always interpreted the word "broker" as used in Chapter 326 F.S. and Chapter 61B-60 F.A.C. to mean "Florida licensed broker." See also, Section 326.002(1) and 326.004(1) F.S. and Rule 61B-60.001(1)(g) F.A.C. These interpretations are in accord with the clear language of the applicable statutes and rules. Petitioner unsuccessfully attempted to show that he had received treatment different than others similarly situated.
Findings Of Fact Frederick Hodgdon (Hodgdon) has held Florida real estate broker license 0206805 at all times pertinent to this case. Hodgdon is owner and qualifying broker for Pelican Realty of Marco Island, Inc., (Pelican Realty), through which Hodgdon conducts business and which also is named as a respondent. At all times pertinent, Pelican Realty has held Florida corporate real estate broker license 0223934. July 24 through August 6, 1984, respondents placed the following newspaper advertisement in the Sun-Daze: DO YOU KNOW ... that all Florida real estate brokers are agents for the seller and CANNOT legally propose any lower than listed prices or better terms for the benefit of the buyer? UNLESS ... the broker legally qualifies himself as an agent for the buyer. As a Buyer's Broker Pelican Realty CAN and DOES exactly this and a lot more! Buyers pay no fees or commissions. Call or send for our informative brochure, you will be glad you did. The real estate buyer's best bet for the best price is to have a Buyer's Broker. On February 19, 1986, respondents placed the following newspaper advertisement in the Marco Island Eagle: 1/ BUYER BEWARE! DON'T BUY REAL ESTATE ON MARCO ISLAND. ... before consulting an attorney or carefully reading Paragraph 5) and 7) of the 1985 Revision of the Sales Contract as approved by the Naples Area Board of Realtors and the Marco Island Area Board of Realtors and the Collier County Bar Association contract Revision Committee. The Contract states quote: "The Buyer has inspected the property sold by the Contract and there are no other inspections permitted or required. The property is acceptable in its AS IS condition as of date of this offer. INCREDIBLE! ... What happens to the unwitting Buyer who intends to have termite, structural and seawall inspections AFTER his offer is accepted? He just may have to buy a termite ridden house that needs a new roof and a seawall that is on the verge of collapse. Thats what! ... Taken at face value the Sales contract calls for the buyer to spend several hundred dollars for inspections BEFORE making an offer that may well be turned down. INCREDIBLE! .... Paragraph 7) states quote: "Buyer's decision to buy was based on Buyer's own investigation of the property and not upon any representation, warranty, statement or conduct of the Seller, or broker, or any of Seller's or broker's agents" (Excluding those rare occasions when the seller and his agents remain silent.) INCREDIBLE! ... The above subject sections of Paragraphs 5) and 7) of the 1985 Sales Contract in our opinion may well violate the Realtor's Code of Ethics Article 7) "to treat fairly all parties to the transaction." There is nothing Pelican Realty could say or do to better emphasize the Buyer's need to have an advocate on his side. ... As a Buyer's Broker we recommend striking out any and all terms and conditions of the Sales Contract that are prejudicial to the Buyer's best interests. ... Pelican Realty would appreciate the opportunity to discuss with any interested parties the many advantages of working with a Buyer Broker. Our services are at NO additional expense to the buyer. CALL US FOR FURTHER DETAILS. NOW!! On March 11, 1986, respondents placed the following newspaper advertisement in the Sun-News: CASH BACK FOR THE REAL ESTATE BUYER. THAT'S INCREDIBLE! Pelican Realty GUARANTEES CASH BACK to every buyer on every sale. The bigger the sale, the bigger the cash gift to the buyer. On top of this Pelican Realty (a Buyer's Broker) goes all out to get the lowest possible price for the buyer at NO additional cost to the buyer. Other realtors must get the highest price for the seller. The thousands you SAVE already belong to you. THINK ABOUT IT! Call us for further details NOW! "WE PAY OUR BUYERS TO DO BUSINESS WITH US" There is nothing false or fraudulent about the three advertisements. However, the following statements in the advertisements are deceptive or misleading in form or content: The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that buyers pay no fees or commissions. In form, the buyer perhaps does not pay brokerage fees or commissions. But in substance, the buyer does indirectly pay his broker a brokerage fee or commission when the seller pays fees and commissions out of the proceeds of the sale. The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that a buyer's broker "legally qualifies himself as an agent for the buyer." Although perhaps technically correct, this representation implies separate state regulation and qualification procedures for licensure as a buyer's broker. In fact and in law, any licensed real estate broker can become a buyer's broker simply by entering into an agreement with a buyer to be the buyer's broker. The representation in the March 11, 1986, News-Sun advertisement: "Other realtors must get the highest price for the seller." Read carefully in context, this representation is true--realtors other than those representing a buyer must try to get the highest price for the seller he represents (while being open, honest and fair to the buyer). But, as written, the representation could lead one to believe that the respondents have an ability no other realtors have when, in fact and in law, any realtor or other licensed real estate broker who represents a buyer can try to get the best price for the buyer. Although respondents have offered cash rebates, no client has seen the offer or asked for a rebate. Although respondents have maintained their innocence, they changed the ads to meet the criticism of the Department of Professional Regulation.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a final order (1) reprimanding respondents, Frederick Hodgdon and Pelican Realty of Marco Island, Inc., and (2) fining them $500 each for violations of Section 475.25(1)(c), Florida Statutes (1985). RECOMMENDED this 21st day of July, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1987.
Findings Of Fact Notices to Show Cause were issued by the Department against Roy D. Mathew, and William Gannaway on April 9, 1976. (See: Agency Exhibits 1 and 2). The final hearing was scheduled by notice dated May 12, 1976. (See: Agency Exhibit 3). Roy D. Mathew, d/b/a Anchorline Yacht Brokerage holds Yacht and Ship Broker License No. 12433, issued by the Department on December 18, 1975. (See: Agency Exhibit 5). Mathew has at all material times held a yacht and ship broker license issued by the Department. William G. Gannaway holds Yacht and Ship Salesman License No. 12657, issued by the Department on December 18, 1975. (See: Agency Exhibit 4). Gannaway has at all material times held a yacht and ship salesman license issued by the Department. Gannaway has at all material times served as a yacht and ship salesman for Roy D. Mathew and Anchorline Yacht Brokerage. Prior to July, 1975, R. A. McKenzie, the owner of a yacht called The Anokone, decided to sell the yacht. The yacht was housed at Anchorline Yacht Brokerage in St. Petersburg, Florida, and McKenzie agreed to pay Anchorline a commission for selling the yacht. On or about July 8, 1975, Jean C. Noll, a resident of Jacksonville, Florida, saw the yacht, and believed that it was the sort of vessel that she and her husband had been looking for. She entered into a purchase agreement with the understanding that her husband, the Reverend Joseph E. Noll, Jr., would have the opportunity to make a personal inspection. William G. Gannaway represented Anchorline Yacht Brokerage in the transaction, and received a deposit from Mrs. Noll. (See: Agency Exhibit 6). On or about July 15, 1975 Reverend Noll came to St. Petersburg from Jacksonville and inspected the yacht. Gannaway at that time advised Reverend Noll that the starboard engine on the yacht was broken down and would require extensive repairs. Reverend Noll liked the yacht, and hired the Wilkinson Company to conduct a survey of the yacht. Dean Greger conducted the survey on behalf of the Wilkinson Company. A very thorough inspection was performed by Greger. He made 24 recommendations respecting & repairs, some of which were significant, and some of which were minor. He was not able to conduct a sea test of the vessel because of the broken down engine. His report was issued on July 22, 1975. (See: Agency Exhibit 7). McKenzie was somewhat disturbed about the large number of discrepancies, and he offered the following alternatives to the Nolls: He would sell the boat "as is" for $15,000; he would sell the boat "as is" with a new starboard engine installed for $17,000; or he would sell the boat for $19,500 with a new engine, with him making all additional repairs up to $1,000 and with all remaining repairs being split evenly three ways between the Nolls, McKenzie, and Anchorline. The Nolls accepted the latter option, and a contract reflecting it was signed. (See: Agency Exhibit 28). All work was to be performed at Whistlers Yacht Service, Inc., which was located adjacent to Anchorline. Shortly after July 22, 1975, it became apparent that a new replacement starboard engine could not be obtained, because the engine was no longer in production. Gannaway advised the Nolls that Whistlers indicated to him that they could replace the "shortblock" of the engine, rebuild the engine, and that they would stand by their work. Gannaway told the Nolls that he thought the rebuilt engine would carry a one year guarantee. Reverend Noll believed that the guarantee would be for no more than 90 days, and he agreed to a rebuilt engine rather than a new engine. Extensive work was performed by Whistlers Marina, and more than $2,100 was paid to Whistlers to perform the repairs. (See: Agency Exhibits 14, 22, 23, 24, 25). Dean Greger conducted a supplemental survey, including a sea test of the vessel on or about August 14, 1975. Fourteen of the 24 discrepancies noted in the original report were found to have been satisfactorily corrected. It was noted that the generator, the depth sounder, the auto pilot, the signal horn, the marine air conditioning, and the docking lights were not performing properly. (See: Agency Exhibit 8). The Nolls were aware of these problems when they closed the transaction and purchased the yacht on approximately August 20, 1975. The closing took place at a Federal Credit Union in Jacksonville. No representative of Anchorline was present at the closing. Following the closing the Nolls took possession of the yacht, and renamed it "Escape Hatch II". The Nolls were advised by several persons, including personnel at Whistlers Yacht Basin, and personnel at Anchorline, that they should familiarize themselves with the vessel in the immediate area prior to their taking any long excursions. The Nolls nonetheless left St. Petersburg in early September to return to Jacksonville. On this return trip the Nolls experienced many mechanical difficulties. Major repairs needed to be performed on the vessel in Ft. Myers (See: Agency Exhibit II), and minor repairs were performed in Stuart and Melbourne (See: Agency Exhibits 12 and 13). Upon return to Jacksonville major repairs were required and are continuing to be performed. (See: Agency Exhibits 16, 17, and 27). It is apparent that the starboard engine was not properly repaired, and that considerable dry rot remained on the vessel. The Nolls are presently engaged in litigation respecting their liabilities in connection with the vessel. Whistlers disclaimed any liability for making repairs, but Mrs. Coe, the general manager at Whistlers testified that she would have performed any repairs within 90 days if the vessel had been returned to the yacht basin. Mr. Gannaway and Mr. Mathew had sound reason to believe that there were no discrepancies respecting the operability of the yacht other than those set out in the marine surveys. Mathew and Gannaway had sound reason to believe that all of the repairs required to rectify these discrepancies had been performed at Whistlers. There was no evidence offered to show that either Gannaway or Mathew intentionally misstated any facts to the Nolls, or that they knew or should have known that any statements they made to the Nolls were false. There was no evidence to establish that Mathew had any personal knowledge of any of the dealings or discussions between Gannaway and the Nolls.
The Issue Whether Respondent, while acting as pilot aboard the M/V Itanage in the St. John's River, Jacksonville, Florida on August 29, 1990, engaged in a practice which did not met acceptable standards of safe piloting. (F.S.A. s. 310.101(1)(k))
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed pilot in the State of Florida. (Petitioner's Request for Admissions paragraph 1) Respondent has been issued license number SP0000032. (Petitioner's Request for Admissions paragraph 2) On or about August 29, 1990, Respondent was piloting the M/V Itanage outbound in Jacksonville, Florida. (Petitioner's Request for Admissions paragraph 4) The Itanage is a 12,000 gross ton, Brazilian registered diesel powered container vessel. (Transcript p. 164) From May 1988 to August 1990 the Itanage entered and exited the port of Jacksonville under pilotage fifteen times without navigational incident. (Transcript pp. 21, 22) The same crew abroad the Itanage at the time of the allision was on the Itanage on its previous voyage of the Itanage. (Transcript p. 22) Respondent has piloted the Itanage or similar vessels many times previously. (Transcript p. 355) The Itanage was equipped with an overhead rudder angle indicator which is visible from the bridge wing. The rudder angle indicator exhibits the degree angle of the rudder and is color coded red for port and green for starboard so the pilot can glance up and see whether port or starboard rudder is applied. 2/ (Transcript pp. 166, 167) Each bridge wing of the Itanage was equipped with an RPM indicator which shows whether the engine was going ahead or astern and the number of revolutions per minute. (Transcript p. 168) The Itanage was equipped with an engine room telegraph which was operated by the second mate to communicate engine commands to the engine room. 3/ On August 29, 1990, the docking master, Captain Meers, undocked the vessel from Jacksonville Port Authority berths 3 and 4, turned, headed down the river on slow ahead, and disembarked around Coastal Petroleum. (Statement of Captain Steele; DPR Report, p. 2) Respondent assumed responsibility for directing the ship at 1454 hours with the vessel parallel to and favoring the west bank of the river. (Statement of Captain Steele; DPR Report, p. 8; engine bell book, Transcript p. 175) It was a clear day, the ride was at or near slack water, the weather was perfect. (Transcript pp. 92. 169, 170, 198) Respondent gave commands to the second mate who remained positioned by the engineroom telegraph on the bridge. The second mate repeated the commands in English then repeated the commands to the helmsman in Portuguese. (Transcript pp. 195, 337); Statement of Second Mate) The second mate spoke very little English and the helmsman did not speak any English. (Transcript p. 331) At 1454 the Respondent ordered course 320 degrees and slow ahead, which was executed. At approximately 1456, Respondent ordered a course of 310 degrees and full speed ahead. (Transcript pp. 82, 83, 191, 192; DPR Report p. 8; engine bell book; Statements of the Second Mate, Helmsman, Master, and Chief Mate; Statement of Captain Steele) Respondent's orders issued at 1456 were executed, and the engine speed was set at full ahead and the Helmsman steered 310 degrees. (Transcript p. 186; DPR Report p. 8; Statements of the Second Mate, Helmsman, Master, and Chief Mater; engine bell book; Statement of Captain Steele; Petitioner's Request for Admissions paragraph 8) Respondent was in the wheelhouse and observed the master-gyro-compass. (Transcript p. 331; Statement of Captain Steele) Because the view forward was blocked by the deck cargo, Respondent went to the starboard wing to observe Buoy 71. (Statement of Captain Steele) At 1455 Respondent ordered "10 degrees port" from the starboard wing. (Transcript pp. 337, 338; Statements of the Second Mate, Helmsman) The helmsman steered 10 degrees to port (left). (Transcript p. 192; Statements of the Second Mate, Helmsman) After the order of "10 degrees port", Respondent remained on the starboard wing and had a radio conversation using a hand held marine radio with the master of the tug "Ann Moran" which took approximately 45 seconds about a ship they had handled the previous day. (Transcript pp. 338, 340, 247) At 1456 as Itanage approached Buoy 71, at point "D" on Hearing Officer Exhibit 1, from the starboard bridge wing, Respondent ordered hard right (starboard) rudder and engine ahead full. (Transcript p. 343) This was to start the turn around Buoy 71. (Transcript p. 384) Captain Steele did not at that time, however, go to the pilot house. Captain Steele remained on the wing to observe the response of the vessel. (Transcript p. 395) After a few seconds, Captain Steele observed the bow of the vessel swinging to port (left) not to starboard (right). (Transcript p. 345) He immediately rushed to the pilot house, repeating his hard starboard (right) rudder order as he did so. (Transcript p. 345) The rudder angle indicator in the pilot house, however, indicated the actual position of the rudder was passing from port (left) 20 degrees to starboard when Captain Steele entered the pilot house. (Transcript p. 345) Captain Steele did not alter the prior order for ahead full. Captain Steele reached the helm console and grabbed the helm. By that time, the helm was already in the hard starboard position. The only explanation as to how the rudder got to 20 degrees port (left) was that when Captain Steele gave the command hard to starboard, the helmsman actually went hard to port (left), then the helmsman realized his error and was correcting it when Captain Steele entered the pilot house. No one suggests that any other command was given which would account for the port swing of the vessel. (Transcript p. 235) Captain Steele again went to the wing to observe the response of the vessel. When it became apparent the vessel would not make the turn, Steele ordered full astern and ordered both anchors dropped. The vessel continued to make way in a sweeping curve alliding with the Shell Oil Terminal on the western edge of the Chaseville turn at approximately 1459 hours. The allision was not caused by a mechanical failure, weather, or tide. (Transcript p. 69). The allision was set up by the helmsman's turning the ship to port (left) instead of starboard (right). However, the Respondent contributed to this error by failing to give the steering command, "Right, full rudder," as required by the Rules of Road. See 33 USC 232. The Coast Guard conducted an investigation and prepared a report (Petitioner's Exhibit 1), the second page of which is a data sheet taken from the ship's bridge. This data sheet contains a diagram of the ship's turning circle to both port (left) and starboard (right) at half and full speeds. An overlay in proper scale was prepared and attached to Hearing Officer Exhibit 1 at the point where the turn was executed, Point D. The scaled extract of the Coast Guard report is attached to the back of Hearing Officer Exhibit 1. The overlay reveals that the vessel could not make the turn at full speed from Point D because the vessel's course takes it almost exactly to the point of allision. If the vessel's course is offset slightly to the left due to the helmsman's mistake and the vessel's turning circle adjusted for less speed, as would have occurred if the vessel went from half speed to full speed when the order for the turn was given, the vessel's projected track would again place the vessel at the point of the allision. The primary cause of the allision was Respondent's use of full speed in the turn. Although there was controversy about whether the vessel proceeded north the entire way at full speed or whether full speed was ordered as the turn was ordered approaching Buoy 71 (Point D on Hearing Officer Exhibit 1), there is no controversy that Captain Steele intended to execute the turn at full speed. The distance from where Captain Steele assumed control of the ship to where it came to rest is approximately 1 and 1/8 nautical miles. According to the logs, the vessel covered this distance in between four and five minutes. In order to cover that distance in that time, the ship was at or close to its full speed, adjusted for a dirty hull, of 15 knots. The advance and transfer of the ship was extended at full speed in such a way that the vessel could not make the turn in the sea room available. Referring again to the overlay, the vessel could have turned within the searoom available from Point D at half speed. The ship might have completed the turn at half speed from a point left of and forward of Point D, its track as the result of the helmsman's error, particularly with the reserve of thrust available to assist in turning after the emergency developed. The Chaseville turn is a tight turn without a great amount of sea room, and requires care to be exercised by pilots. (Transcript pp. 354, 362, 170, 171). The Respondent's failure to maintain proper speed caused the allision with the Shell Oil Terminal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board of Pilot commissioners issue a final order suspending Captain Henry A. Steele for three (3) months and levying a civil penalty of $5,000 against him. DONE and ENTERED this 3rd day of June, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 3rd day of June, 1992.
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
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.
The Issue Whether the Yacht Ship Salesman License issued to Arthur Lowe should be suspended or revoked for violation of Subsections 537.96(3)(a) and (i), and Section 537.06(4)(c), Florida Statutes. Whether the Yacht & Ship Brokers License issued to William L. Wescott should be suspended or revoked for violation of Section 537.06(3)(a)(1) and Section 537.06(4)(c), Florida Statutes.
Findings Of Fact Respondent William L. Wescott is the holder of Florida Yacht Brokers License No. 12528 and Respondent Arthur Lowe is the holder of Florida Yacht Salesman License No. 13118. Upon joint motion of the parties the two cases were consolidated for hearing. On April 9, 1976, Respondents Wescott and Lowe were served Notice To Show Cause why the Yacht Ship Brokers and Salesman Licenses should not be suspended or revoked for violation of Chapter 537, Florida Statutes. This hearing is a result of that notice. On or about February 6, 1976, James Kinard, a resident of Columbia, South Carolina, responded to an advertisement in a boating magazine placed there by Daniel Yacht & Ship Brokerage, Ltd. depicting a Morgan sailboat. By telephone Mr. Kinard was informed that the Morgan sailboat advertised was no longer available but that a 41-foot Gulfstar was available. Mr. Kinard informed the Daniel Yacht Ship Brokerage, Ltd.'s representative that he had had a Gulfstar and had been unhappy with it. He became interested, however, in the 41-foot Gulfstar sailing yacht believing that it was designed by Sparkman and Stephens rather than Vince S. Lazzaro, the designer of the Gulfstar owned by him. Many people believe that a Sparkman and Stephens design hull is considered to be of the highest quality. As a result of the communication of Mr. Kinard, Respondent Arthur Lowe, a salesman for William Wescott, broker for Daniel Yacht Ship Brokerage, Ltd., Respondent, contacted another broker, Andrew Cilla, of Frank Gordon Yacht Sales, Fort Lauderdale, Florida, who informed Respondents that he had a listing of a vessel known as "Sea Lark IV." Frank Gordon Yacht Sales delivered a specification sheet to Mr. Wescott. Mr. Wescott photostated the letterhead of Daniel Yacht Ship Brokerage, Ltd. on to the top of the Frank Gordon Yacht Sales specification document and furnished it to Mr. Kinard. Said specifications listed Sparkman and Stephens as the designer of the vessel, although in fact, the Gulfstar 41-foot yacht was designed by Vince S. Lazzaro. The Driver Associates, Inc. prepared the document with specifications on the 41-foot Gulfstar "Sea Lark IV." On or about February 8, 1976, Mr. Kinard wired an offer of $45,000 to Daniel Yacht Ship Brokerage, Ltd. along with a ten percent deposit of $4,500. This amount was put in the escrow account of Daniel Yacht Ship Brokerage, Ltd. and remains in the escrow account. On or about February 22, 1976, Mr. Kinard and Mr. Lowe, together with others, took the yacht "Sea Lark IV" on a sea trial. Because of inclement weather the parties present huddled beneath the covering to the cockpit during the voyage. Mr. Hugh Furman was at the controls and called out the speed of the vessel as being 8, 9, 10 and 11 knots, respectively. The knot indicator in view to most of those present indicated that the vessel was proceeding at that speed. Mr. Kinard believed that in actuality the yacht was proceeding at the speed indicated by the knot indicator and that the speed the pilot was calling out was the correct speed. Mr. Lowe, a seaman, did not believe the ship was sailing at that speed and did not believe that others aboard thought that the ship was going at that speed. Mr. Kinard contends: That he believed the 41-foot Gulfstar was designed by Sparkman and Stephens; that the specifications furnished him by the Respondents indicated that Sparkman and Stephens was the designer. That he informed the Respondents that he did not like the Gulfstar he owned and did not like the designer Vince S. Lazzaro; that he believed the pilot of the ship who called out the speed of the ship and that he believed that the knot indicator on the ship was correct. That he was misled by the representations of the Respondents and by the specifications they furnished him and that he believed the ship would travel faster than it can in actuality; that the place in which he intended to use it requires a ship that will proceed faster than the "Sea Lark IV"; that he would not have put the $4,500 deposit down on the ship had he known that the hull was not designed by Sparkman and Stephens or had he known that the ship would not proceed at the rate of speed the pilot called out on the sea trial. That because he was misled he should be refunded the $4,500 that is his deposit on the "Sea Lark IV" and is in the escrow account of the Respondents. Respondents Arthur Lowe and William L. Wescott, contend: That during the sea trial Respondent Lowe believed that all persons on board the vessel knew that the speed called off by Mr. Furman was erroneous, and that if the knott indicator indicated the speed called off by Mr. Furman, it was erroneous and obvious to most persons familiar with yachts that such speed was not registered or called out correctly; that it was obvious the yacht was going at a much slower rate of speed. That the misrepresentation in the folder of the designer is not a substantial misrepresentation and that such misrepresentation was not intentional; that the advertisement and circulation of the specifications was by a second broker and its distribution to Mr. Kinard was in the ordinary course of business and was not meant in any way to mislead the buyer. The Petitioner Department of Business Regulation contends: That the delivery to the prospective buyer Kinard of an erroneous publication was an intentional and fraudulent act; that Respondents had been informed by tide buyer he did not like the designer Vince Lazzaro and the seller should have determined that Vince Lazzaro was the designer of subject vessel and notified the buyer; that such actions were intentional and fraudulent and a violation of Chapter 537, Florida Statutes. That the salesman and broker should have determined the true speed of the vessel and informed the prospective buyer; that failure to do so was intentional and fraudulent. That the actions of Respondents should result in the suspension of their licenses.
Recommendation Dismiss the charges. DONE and ORDERED this 22nd day of July, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Division of General Regulation Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Gerhardt A. Schreiber, Esquire Fourth Floor, First Federal Building 1000 Northeast First Avenue Miami, Florida 33132
The Issue The issue is whether Kenneth Baurley should be eligible to sit for the examination to become licensed as a real estate salesman.
Findings Of Fact On July 14, 1988, Mr. Baurley's application for licensure as a real estate salesman was received by the Florida Real Estate Commission (Commission). By letter dated October 3, 1988, the Commission notified Baurley that his application had been denied based on his answer to question 6 on the application. In responding to that question, Mr. Baurley disclosed that he had been involved in two criminal proceedings; in both an adjudication of his guilt had been withheld. The first case arose in 1982 on the charge of battery on a law enforcement officer, for which he received 18 months of supervised probation. The incident had its genesis in a shoving match involving Baurley and someone who turned out to be an off-duty police officer for a small municipality. The second was in 1983 for the municipal offense of prowling. Although under no obligation to do so, Mr. Baurley also stated that he had been arrested for driving under the influence in 1988. He was found not guilty on the last charge, so it has no bearing on the decision in this case. Mr. Baurley's response to question 6 was complete and truthful. At the time of these incidents, Mr. Baurley was 19 and 20 years of age. He successfully completed his probation. He has had no further relevant contacts with the criminal justice system for more than five years. Mr. Baurley is now 26 years old. He has resided in Pompano Beach, Florida since 1972, although he attended college in Tallahassee. He is employed currently as President of A Better Limousine Service, Inc. and as a supervisor at Baurley Marine Works, Inc., which is owned by his father. Prior to his employment in these two positions, Mr. Baurley worked in a business established by his brother, Baurley "No Frills" Auto Rental. Before he held these positions, Mr. Baurley attended college in Tallahassee and worked at Doc's Sports Bar and Grill and at Forest Meadows Athletic Club. He was also an adjunct instructor at Florida State University where he taught Tae Ywon Do for college credit. In the course of his employment in the positions set out in Findings 6 and 7 above, Mr. Baurley has been required to interact with patrons, sometimes under difficult circumstances. In all the positions delineated in Findings 6 and 7 (other than the position as adjunct instructor at Florida State University) Mr. Baurley has been required to handle other people's money on at least a weekly basis. Most of the positions have required him to deal with his employers' or customers' money on a daily basis. Petitioner has performed all his employment responsibilities honestly and without incident. Darlene Vlazeny, a real estate salesperson and housewife, met Mr. Baurley in a business capacity by telephone in October, 1988. At that time Mrs. Vlazeny was soliciting in-kind contributions on behalf of a school for hearing impaired children. Mrs. Vlazeny testified that Mr. Baurley's was the only limousine company which agreed to her request to provide limousine services in connection with a benefit for the school at reduced rates. Since the school benefit, Mrs. Valzeny has had social contact with Mr. Baurley. She is aware of the incidents detailed in his answer to question number 6 on his licensure application, but believes he is trustworthy, honest and has a high moral character based on her experiences with Baurley. Mrs. Vlazeny would have no reservation about working with Mr. Baurley in any professional capacity. John Belegesky, a practicing attorney for more than 30 years, has known Mr. Baurley since he was a small boy. Baurley and Mr. Belegesky's son have been friends since grade school. Mr. Belegesky is also aware of Mr. Baurley's past and believes that the acts disclosed in the response to question number 6 to be out of character for him, and the result of youthful indiscretion. Mr. Belegesky trusts Petitioner to have a key to his home, which contains many valuables, and to houseset when he and his wife are away for weeks at a time. Mr. Belegesky would have no reservation about referring his clients, including major developers, to work with Mr. Baurley, if he is licensed. Mr. Belegesky believes Mr. Baurley possesses a high moral character and is honest and trustworthy. Mr. Baurley has matured and regrets his past actions. Mr. Baurley is honest and trustworthy and is of good moral character.
Recommendation Based on the foregoing, it is RECOMMENDED that the Petitioner, Kenneth M. Baurley, be allowed to take the examination for licensure as a real estate salesman and if he passes the examination, be issued a real estate salesman license. DONE and ORDERED this 28th day of April, 1989, in Tallahassee, Florida. WILLIAM R. DORSEY 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 28th day of April, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5537 The proposed findings of Mr. Baurley have generally been adopted. COPIES FURNISHED: Lawrence S. Gendzier, Esquire Department of Legal Affairs 400 West Robinson Street, Room 212 Orlando, Florida 32802 Marion E. Baurley, Esquire 1025 Vermont Avenue, North West Suite 915 Washington, D.C. 20005 Kenneth E. Easley General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32902
The Issue Whether Respondent acted as a yacht broker in Florida without holding a yacht broker's license issued by petitioner?
Findings Of Fact Respondent, presently retired, was formerly employed with Sun Yacht Charters located in Camden, Maine. He has never been licensed by the State of Florida as a yacht and ship salesperson or broker. Respondent attended the 57th Annual Miami International Boat Show and Strictly Sail (boat show) held February 12-18, 1998. Respondent was in attendance at the Sun Yacht Charters Exhibit Booth, a booth in the Strictly Sail portion of the boat show. Investigators and other Petitioner employees regularly attend this specific boat show in order to find unlicensed activity, such as selling and brokering of regulated yachts by persons not holding valid salesperson or broker’s licenses. On February 13, 1998, Petitioner investigators James Courchaine and Peter Renje attended the boat show. They carried fictitious business cards with false names and the designation "Yacht Consultant" on the cards. Courchaine’s fictitious name was James K. Ramson. Renje’s card bore the name Pete Benson. While walking through the Strictly Sail portion of the show, the investigators saw the booth for Sun Yacht Charters and Respondent. Respondent’s name tag read "Pat Raum." Outside the tent, the two investigators checked their list of licenses and did not find Pat Raum’s name listed. Although a license is not required in the sailboat portion of the show, Courchaine, posing as James K. Ramson, went back into the show and introduced himself to Respondent, handing him the fictitious business card with the name James K. Ramson, Yacht Consultant, displayed on it. Courchaine, a/k/a Ramson, inquired of Respondent that he was looking for a boat for a client for an outright purchase for a client. Courchaine asked if there were any boats for sale through Sun Yacht Charters. Respondent replied that sometimes people in their charter program wanted to sell a boat and that Sun Yacht Charters would sell it for them. He gave Courchaine his business card identifying himself as Pat Raum, Director of Yacht Sales for Sun Yacht Charters. The business address on the card was Camden, Maine. Respondent also gave Courchaine a specifications sheet on the Southern Belle, destined to come out of the charter program in April of 1998. The specifications sheet listed an asking price of $9,000 for the boat. From conversations he had with Petitioner's employees at a previous time when he discussed obtaining a Florida license, Respondent understood that Florida law did not permit him to sell or purchase yachts in Florida as an owner's agent. On February 17, 1998, following contact with Sun Yacht’s Camden office, Courchaine learned that Respondent was still in Florida. Courchaine contacted Respondent and asked for a contract. Believing that he was dealing with a licensed Florida Yacht broker, Respondent agreed to what he thought was an appropriate arrangement between himself and Courchaine whereby the sale of the Southern Belle would involve a 30/70 split on the commission from the sale. Respondent later confirmed to Courchaine in a fax message that same day that Courchaine, a/k/a Ramson, would get three percent of the sales commission. Also, he included in the fax to Courchaine a blank Yacht Purchase and Sale agreement. It was Respondent’s understanding that in the event of a sale, the matter would have to be handled by Courchaine a/k/a Ramson, or another Florida broker, that he, Respondent could not act as a broker in Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order dismissing the notice to show cause. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 28th day of May, 1999. COPIES FURNISHED: Kathryn E. Price, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pat Raum Post Office Box 302 Kennebunkport, Maine 04046 Philip Nowick, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the state government licensing and regulatory agency charged with the responsibility to prosecute Administrative Complaints alleging misconduct by practitioners of the real estate profession in this state. The Florida Real Estate Commission is the state agency responsible for licensing real estate sales persons and brokers in Florida and for regulating the real estate profession in this state. By Administrative complaint dated May 1, 1992, Respondent and Nicholas G. Patsios were charged with various violations of Section 475.25(1), Florida Statute. At the time, Respondent was a licensed real estate salesperson at Gulf Beaches Realty, Inc. (Gulf Beaches) in Holmes Beach. Gulf Beaches was licensed as a real estate broker for which Mr. Patsios was the qualifying broker. However, Respondent was actually the owner of Gulf Beaches and registered as an officer of the corporation. On January 16, 1992, an investigator for the Department had attempted to audit Gulf Beaches' escrow account but could not do so because the records were not in order. This was the impetus for the investigation into the operation which resulted in the filing of the Administrative Complaint. Respondent actually operated the brokerage, and in the Administrative Complaint was alleged to have been registered as an officer of a brokerage corporation while licensed as a salesperson. She was also charged with having operated as a broker while licensed as a salesperson. By Final Order dated August 18, 1992, the Florida Real Estate Commission found Respondent guilty of the alleged misconduct, fined her $100.00, reprimanded her and placed her on probation for one year conditioned, inter alia, upon her not violating any other provisions of Chapter 475. On May 21, 1993, the Department again charged Respondent with violations of Chapter 475, alleging that she: (1) continued to operate as a broker while licensed as a salesperson; (2) operated as a broker without holding a valid broker's license and (3) violated an order of the Commission. Though the matter was referred to the Division of Administrative Hearings, Respondent failed to respond to the Administrative Complaint, and pursuant to a motion to relinquish jurisdiction, the matter was returned to the Commission. Thereafter, by Final Order dated November 7, 1993, the Commission revoked Respondent's license as a salesperson. In the interim between that action and the filing of the instant Administrative Complaint, Peggy Jean Lasser, a licensed broker, became the qualifying broker for Gulf Beaches. She allowed Respondent, the owner of the brokerage, to control its operations, including interfacing with clients. When the Commission initiated action against Ms. Lasser for that infraction, she did not dispute the allegations, and as a result, by Final Order of the Commission dated August 15, 1995, her license was suspended for two years. Ms. Lasser immediately ceased operating as the broker for Gulf Beaches. To the best of her knowledge, however, Gulf Beaches is still operating as a real estate office without a broker, and Respondent is still operating as a salesperson without a broker. On July 29, 1996, George Sinden, an investigator for the Department, went to Gulf Beaches' office accompanied by another investigator. He found the door to the office open and Respondent seated at a desk beside the door. She was alone in the office. There were office machines present and it appeared to Sinden that the office was operating as a real estate office. During his visit, Mr. Sinden could find no one with a valid license as a broker or salesperson. Respondent indicated she was trying to find a broker to qualify the company. She admitted she was currently operating a real estate business. Respondent also indicated she had four rentals which she was managing and for which she was depositing funds into a trust account for the owners. She also claimed to have an escrow account with over $2,000 in it. Sinden found that Respondent was not complying with the Commission's monthly reconciliation requirements and he could not determine to whom the funds in the escrow account belonged. Respondent claims this money was deposit money placed by a prospective purchaser in a sale between two parties, both of whom trusted her to hold the funds. She claims she was to receive a 5 percent fee. Records of Secretary of State's office showed Ms. Lasser as the only officer of Gulf Beaches. However, she no longer holds a valid broker's license. Respondent indicated she was the sole owner of Gulf Beaches. She claimed when Sinden interviewed her and at the hearing, where she again admitted the matters set forth above and in the Complaint, that she has not take in any new business since Ms. Lasser left. Respondent admits that she has attempted to divest herself of her clients but claims that because the Complaints filed against her by the Department have damaged her reputation, no broker will work with her or her business since the action in 1992. Respondent either cannot or will not accept the fact that she is operating illegally. Her primary concern seems to be the fact that this business is her way of making a living. She is 80 years old and seeks only to operate for two more years, at which time she will "meet her maker." The evidence is clear that since 1992, and before, Respondent has been the owner of Gulf Beaches. From the departure of Mr. Patsios to the incumbency of Ms. Lasser, and after the departure of that individual up to the present, Respondent has operated the corporation without a broker. It is also clear that since November 1993, Respondent has operated as a salesperson without a valid license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and, consistent with the provisions of Section 455.228, Florida Statutes, impose an administrative fine in the amount of $2,500.00. DONE and ENTERED this 3rd day of September, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of September, 1996. COPIES FURNISHED: Steven D. Fieldman, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N308 Post Office Box 1900 Orlando, Florida 32802-1900 Geraldine Ruesel, pro se 5351 Gulf Drive Holmes Beach, Florida 34217 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
