Findings Of Fact On or about October 25, 1982, Respondents filed with Respondent County an Application for Preliminary Development Plan Review including Zoning, an Application for Final Development Plan Review including Zoning, and a General Application for a Major Development Project known as Spoonbill Sound on Cudjoe Key, Monroe County, Florida. On or about January 28, 1983, Respondents submitted an Environmental Designation Survey, Community Impact Statement and Preliminary Development Plan for Spoonbill Sound pursuant to the requirements of Sections 6-221 through 6- 245, Monroe County Code, the Major Development Project Ordinance. The Spoonbill Sound property consists of approximately 55.38 acres. U.S. Highway No. 1 approximately bisects the property. The 26.29-acres half of the property lying north of U.S. Highway No. 1 consists of a vegetated preserve and an unnamed water area. As such, the northern half of the Spoonbill Sound property is unlikely to be buildable. The 28.94 acres half of the property located south of U.S. Highway No. 1 has a 16.01 acres strip of upland which extends the length of the property contiguous to Cudjoe Bay. The entire area between U.S. Highway No. 1 and the upland area contiguous to Cudjoe Bay consists of a land-locked lake and a red mangrove preserve. Stated differently, approximately 40 acres of the site is wetlands, and only that portion adjoining the Bay holds the possibility of being developed. That upland area of 16.01 acres is comprised of a late-successional tropical hardwood hammock dominated by tropical low-hammock trees including significant numbers of buckthorn, gumbo limbo seagrape, pigeon plum, Jamaica dogwood, and Spanish stopper. Virtually the entire site is vegetated, and the canopy is closed. Respondents propose to subdivide the 16.01-acres upland portion of the site into 26 lots of approximately one-quarter to one-half acre each, with each lot being approximately 100 feet wide. Respondents have already cleared an east-west oriented road the length of and in the middle of the upland area pursuant to a permit issued by Respondent County. The lots are spaced on either side of that cleared roadway, with 13 lots running along the north edge of the roadway, and 13 lots running along the south edge of the roadway. Respondents proposed to sell 25 of those lots for duplex development. The 26th lot, which covers the southwest corner of the property, will be developed as a common area with parking lot in conjunction with a proposed dock extending into Cudjoe Bay and in conjunction with a nature walk and bird observation platform proposed for the land-locked lake. Other than the "amenities" and private road, Respondents do not propose to develop the residential improvements. On or about January 25, 1984, Respondent County adopted Resolution MD 1-84 approving Respondents' Major Development, Final Development Plan, Final Community Impact Study, and Final Change of Zoning from GU to RU-2 for Spoonbill Sound. The only condition contained in that Resolution is that Respondents obtain all required certifications prior to construction of the proposed dock. The dock proposed at the southwestern tip of the development will extend into Cudjoe Bay 155 feet waterward of the mean high water line and will be a total of 190 feet in length and 8 feet wide. The dock will have an 8 by 80 foot L-shaped extension on the seaward end and will incorporate 9 mooring pilings and 8 boat slips for a total 2,160 square feet of dock area. The depth at the seaward end of the proposed dock site, in the area of the boat slips, at mean low water is 2 1/2 to 3'. On or about May 4, 1983, the Board of Adjustment of Respondent County denied the request of Respondents for a dimensional variance for the dock. At that hearing, prior to denial of the variance, Respondents sought to withdraw their variance application on the ground that no variance was required by Monroe County ordinance. That request was denied by the Board of Adjustment. On or about November 7, 1983, the County Attorney for Respondent County rendered an opinion that the 100-foot length limitation set forth in Section 19-101(b) of the Monroe County Code did not apply to a dock to be built in an RU-2 subdivision. At the time of the final hearing in this cause, Respondents' application for a permit to construct the dock had been denied by the Florida Department of Environmental Regulation. Additionally, the Florida Department of Natural Resources had withdrawn its earlier authorization for Respondents to construct the dock over the Bay bottom. Cudjoe Bay is extremely shallow and does not presently have significant boat traffic. The depth of the bottom is generally -1 to -2' mean low water (MLW) to a distance of approximately 1500' from shore. Moving further southward, -3' MLW depth is reached some 1500 to 2000' from shore. The 4' depth, MLW, is approximately 2500' or nearly a half-mile from shore. The Cudjoe Bay bottom in the vicinity of the proposed dock consists of varying thicknesses of marine grasses, marine algae, many sponges and hard corals. Marine grasses are not quite as thick at the end of the proposed dock, as compared with areas closer to the shore and to the east of the dock, but in these areas of fewer grasses there is an abundance of sponges. The Bay bottom in the vicinity of the dock is very much a "live bottom," with a large number of marine organisms present, as contrasted to, for example, a sand bottom. Marine animals observed in the vicinity of the end of the proposed dock are sponges, hard shallow water corals, lobsters, extensive schools of bait fish, juvenile fish, jellyfish, starfish, sea anemones, sea urchins, and various algae. Corresponding to the Respondents' estimate of boat ownership by the future Spoonbill Sound owners (that one-half of the 50 future families will own boats), Respondents originally sought dock mooring facilities for 25 boats. In order to obtain approval, Respondents later amended their proposal to the current proposal of 8 slips only. As currently proposed, Respondents intend that the dock will be utilized as a transitory platform for residents only and that boats would either be stored at the dwellings or in the several nearby marina facilities and would not be permanently moored at the dock. They speculate that the dock would thus be used as a convenience only, so the residents can make short trips back to their dwelling units to drop off fish or to pick up and drop off supplies or fishing tackle. In additional recognition of the concerns of agencies regarding protection of the marine plants and animals, Respondents propose restrictions on the use of boats in the vicinity of the dock. Respondents propose to limit the number of boats using the dock at any one time to 8 boats by installing only 8 slips and by placing a rail on the inside portion of the dock to prevent people from tying boats along the length of the dock other than where the 8 slips are located. Respondents further propose some system of marking the most favorable ingress and egress channel to the dock so as to limit the damage to marine plants and animals and further propose attempting to limit speeds of boats approaching or leaving the dock. None of Respondents' proposals of restricting permanent mooring at the dock, limiting the number of boats using the dock at any one time to 8, restricting the mooring of boats along the dock to the location of the 8 slips only, locating and marking a channel, or of restricting damage by imposing speed limits exists as conditions to any permit or approval from any regulatory agency. Respondents propose instead to place authority for the creation and enforcement of those proposed restrictions in the hands of a homeowners association composed of the future residents of Spoonbill Sound. There are presently no written regulations encompassing any of Respondents' proposals. The evidence is clear that Cudjoe Hay is an inappropriate place for a dock such as that proposed at Spoonbill Sound due to the shallow water depth and that the location of the proposed dock is a difficult and hazardous place to operate a motor boat. The expert witnesses agree that there would be some damage to and removal to marine plants and animals by the operation of boats in the vicinity of the dock even if the proposed safeguards came into existence in an enforceable and written form. While there was testimony that damage to the marine plants and animals on the Bay bottom would be minimized by strict adherence to the proposed safeguards, there is little likelihood of success for the following reasons. First, the potential violators of the safeguards are the proposed enforcers. Second, Respondents themselves expect a 50 per cent boat ownership by Spoonbill Sound dwellers. Even if no resident chose to tie a boat at any point along the dock other than in one of the eight slips, if those eight slips are full at any given time, it is reasonable to assume that additional boats will be driving around the shallow area waiting for their turn to use one of the slips. Third, there is no evidence regarding enforceability of the proposed restrictions on boat usage, and all of the proposed safeguards must be enforced at all times in order to prevent more than minimal removal and injury to the marine plants and animals in the vicinity of the proposed dock. As a practical matter, notwithstanding any rules and regulations which may or may not be adopted by the homeowners association, there would most likely be little enforcement of the proposed safeguards relating to use of the dock other than an economic incentive, for instance, to avoid propeller damage. Therefore, usage of the dock would most probably result in more than minimal damage to and removal of marine grassbeds and marine animals in Cudjoe Bay. Further, the evidence suggesting minimal impact to the marine plants and animals by strict adherence to the proposed safeguards is based upon the erroneous premise that eight boats will use the dock. Rather, there will be an unknown number of boats making an unknown number of trips to and from the eight slips located at the dock or driving around waiting their turn. There is no evidence of any assessment of impact due to the actual anticipated usage of the dock by the expected regular movement of boats to and from the dock area. Although proposed deed restrictions suggest that no other applications shall be made and no additional docks shall be constructed at Spoonbill Sound, those deed restrictions, if they ever become effective, are enforceable only by the proposed homeowners' association, which is also given authority in that same document to modify or repeal any deed restrictions. Further, the proposed restrictions carry no penalty for violation. A thickly vegetated West Indian tropical low hardwood hammock covers 12.50 acres of the Spoonbill Sound 16.01 upland area. The hammock contains a large number of rare and endangered plant species scattered throughout with very dense distribution of individual trees. The site also contains a number of solution holes in the limestone rock substrata inundated with brackish water which provide wetland habitat on the hammock site. These sinks contain a threatened species of leather fern. The only man-made alterations to the hammock are the road cut through the middle by the Respondents, some trails, and some trash deposited in some areas. Lower Keys tropical hardwood hammocks do not attain the canopy height of those hammocks in the Upper Keys. This is due to lower elevations in the Lower Keys precluding larger plant litter build-up with its accompanying greater moisture retention for utilization by the plants, and there is less rainfall in the Lower Keys. Although this particular tropical hardwood hammock consists of second growth following a fire or some other past disturbance, vegetation in this hammock has stabilized, and the only change which will take place over time is that the trees will get thicker. Over time, however, species composition will not change much nor will the canopy increase in height. The hammock is thus at climax or at least late-successional. Lower Keys tropical hammocks are nonetheless extremely valuable habitat for such endangered or threatened animals as white crown pigeons, 12 of which were observed feeding on site, great white heron, brown pelican, osprey, and Keys raccoon. Numerous other birds have been observed on site or are expected to utilize the site. The Spoonbill Sound hammock with its unique combination of fresh water areas, semi-fresh water areas, and salt water areas provides a great deal of potential habitat for a large number of rare and endangered animal species. The semi-fresh water wetlands in the hammock alone provide for the Lower Keys a very diverse animal habitat. As set forth above, Respondents will not be responsible for the construction or placement of the 25 duplexes in their proposed subdivision. Rather, what is built and where is left to the proposed homeowners' association under the proposed deed restrictions which can also be modified or repealed by that same homeowners' association. The proposed deed restrictions do not provide for their enforceability by anyone other than the potential violators. Each lot carries one vote except for those lots still owned by the Respondents who have retained three votes for each lot owned by them. Therefore, a review of the impact of the entire project on the natural resources systems of the Spoonbill Sound site is impossible since the actual development of each lot is speculative at this time. Similarly, the amount of hammock to be cleared in the Spoonbill Sound subdivision is unknown. While the proposed deed restrictions limit the amount of clearing to be done on each lot to no more than 30 per cent, Respondent Kephart testified as to his interpretation of the term "clearing" which will take place in the Spoonbill Sound hammock. Under his definition, only total eradication constitutes clearing; removal of all underbrush and the cutting back of branches only constitutes pruning and is therefore not prohibited. Accordingly, Spoonbill Sound, as proposed, fails to provide for the preservation of the hardwood hammock. While the Spoonbill Sound upland area to be developed consists of 16.01 acres, the upland hammock zone was surveyed at 12.50 acres. Subtracting the recreational, parking, and the road areas, the net hammock area available for development is 8.95 acres. If 30 per cent of the lots can be cleared using the normal definition of that word, the remaining hammock area following development will be 6.265 acres plus a 1.38 acre median strip in the road leaving 7.645 acres out of the original 12.50 acre hammock or approximately 60 per cent of the original hammock following development. If Respondent Kephart' definition of the word "cleared" is utilized, it is unknown how much of the hammock area will remain following development, but substantially less than 60 per cent is probable. Developments such as is proposed for the Spoonbill Sound will allow easy intrusion by exotic plant species such as Australian pine and Florida holly. The wildlife habitat value of this site after development will be severely degraded not only due to direct human activities in the area but also because the development proposal does not call for preservation of large blocks of contiguous hammock. The result will be that potential for nesting, rooting, and foraging in the area following this development will be severely curtailed and most of the species--including the rare and endangered ones--will migrate away from the site. This will occur despite the fact that tree species preserved following construction may do quite well. Placement of residential improvements clustered in a manner that would increase the amount of contiguous, undisturbed hammock on the property above what Respondents propose would maximize the potential that indigenous wildlife would utilize the hammock. There is nothing in Respondents' proposal for the development of Spoonbill Sound, with the extra regulation imposed by its location within an Area of Critical State Concern, that makes it any different from the traditional development of utilizing maximally a piece of property by slicing it into 100' wide lots located up and down the side of a roadway constructed through the middle of the development although the Area of Critical State Concern designation had been in place in the Florida Keys for many years before Respondents purchased the property in late 1981 or early 1982. The Spoonbill Sound property is located within a 100-year flood prone area, and the 25 duplexes expected to be erected on that site will, accordingly, need to be elevated eight feet. Respondents propose that' septic tanks will be utilized for the duplexes until the project reaches 50 per cent buildout. At that time, a sewage treatment plant will somehow become erected on the 26th lot, the same lot which houses the landward end of the dock, the 12-car parking lot, and the beginning of the nature walkway which continues in a northerly direction past the last duplex lot and into the land-locked lake where it terminates in a 15' by 15' observation platform. Since Respondents are not required to seek septic tank permits at this time, no evidence was presented regarding the impact of the 12 or 13 septic tank systems to be located on the duplex lots contiguous to the Bay or on those lot contiguous to the red mangrove preserve or land- locked lake. Likewise, no evidence was presented as to the impact of any proposed sewage treatment plant located on the Bay-front lot which also serves as the community recreation area. Lastly, no evidence was introduced as to the impact of the nature walkway, elevated boardwalk, or observation platform to be located inside the land-locked lake on the wildlife currently abundant there. The actual development of Spoonbill Sound is speculative, and its impact on the land-locked lake, the red mangrove preserve, the tropical hardwood hammock, and Cudjoe Bay when it is built is unknown.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered reversing the Monroe County Zoning Board's Development Order Resolution No. MD 1-84 and denying development approval for the Spoonbill Sound Major Development. Pursuant to the requirements of Section 380.08(3), Florida Statutes (1983), it is further recommended that the Final Order require the following changes in any development proposal for Spoonbill Sound: No docking facility be approved; All units and associated facilities be clustered in such a way as to absolutely maximize the amount of contiguous, undisturbed hammock on the Spoonbill Sound site; All units and associated facilities be located as close as possible to existing access roads, and the remainder of the hammock be left as undisturbed as possible; Any future review by Monroe County of any revised development plan be made in accordance and full compliance with Chapters 27F-8 and 27F-9, Florida Administrative Code, with the Monroe County Code, and with the Monroe County Comprehensive Plan; and Any future review of any revised development plan consider the cumulative impact of the entire project, including the impact of septic tanks and the sewage treatment plant on the hardwood hammock, the adjoining red mangrove preserve, the land-locked lake, and on Cudjoe Bay itself. DONE and RECOMMENDED this 28th day of June, 1985, at Tallahassee Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985. COPIES FURNISHED: Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 John T. Herndon, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 Sheri Smallwood Attorney at Law County Attorney's Office 310 Fleming Street Key West, Florida 33040 James Hendrick, Esquire 317 Whitehead Street Key West, Florida 33040 E. Lee Worsham, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahssee, Florida 32301 Charles Lee Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751
The Issue Whether Respondent, a certified swimming pool contractor, committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed by the Construction Industry Licensing Board (CILB) as a certified swimming pool contractor, having been issued license number CP C012912, and at all times material the Respondent was a qualifying agent of Blue Dolphin Fiberglass Installations, Inc. (Blue Dolphin). On May 4, 1990, Blue Dolphin entered into a contract with Mary Gonzalez to install a fiberglass swimming pool at Ms. Gonzalez's home at 351 Southwest Thirtieth Court, Miami, Florida, for the total sum of $14,395. The written contract was a form prepared by Blue Dolphin. Among other provisions, the contract required Blue Dolphin to have its work inspected. The property owners paid the $14,395 contract price as follows: $1,395 on May 4, 1990; $10,000 on May 11, 1990; $2,000 on May 29, 1990, and $1,000 in March 1992. In June of 1990, Blue Dolphin installed a fiberglass swimming pool at the Gonzalez home. At all times pertinent to this proceeding, the Gonzalez home was located within the City of Miami, where construction, including the installation of swimming pools, was governed by the South Florida Building Code (SFBC). To prevent a fiberglass pool from being moved upward by rises in the groundwater table when the pool was empty, the SFBC required the installation of the subject fiberglass pool to include a 36-inch by 4-inch concrete perimeter walkway strengthened with welded steel wire mesh reinforcement. The SFBC required that Blue Dolphin have the placement of the reinforcing steel wires inspected by the City of Miami building department before it poured the concrete for the perimeter walkway. Respondent knew of this requirement. When the subject pool was originally installed by Blue Dolphin, steel reinforcement for the concrete walkway was properly placed before the concrete was poured. The pool as originally installed was not level. On June 12, 1990, Blue Dolphin performed work in an effort to correct that condition. Gloria Gonzalez, the daughter of Mary Gonzalez, lives at the subject property and observed the original work and the corrective work. She testified that the corrective work included removal of a portion of the deck along the entire south side and parts of the east and west sides of the pool. She estimated that approximately sixty percent of the entire deck was removed and subsequently replaced. When Blue Dolphin replaced the parts of the deck that it had removed, it did not place reinforcing steel in a substantial portion of the replaced deck. Gloria Gonzalez estimated that eighty percent of the deck that was replaced did not have steel reinforcement.1 Blue Dolphin failed to have the steel reinforcement inspected by the City of Miami as required by the SFBC when it originally poured the concrete deck and when it replaced part of the concrete deck when the corrective action was taken. The SFBC required Blue Dolphin to obtain a satisfactory final inspection for the project by the City of Miami. As of the time of the final hearing, the project had not passed final inspection. On May 10, 1990, Blue Dolphin obtained two building permits from the City of Miami for the subject project. Blue Dolphin obtained permits to complete the project on June 25, 1992, and, after the first permit expired, it obtained a second completion permit on August 19, 1997. The second completion permit expired on November 14, 1998. At the final hearing, Respondent acknowledged Blue Dolphin's continuing duty to obtain a satisfactory final inspection of the job and expressed willingness to do whatever was necessary in order to pass the final inspection. Respondent also admitted that he and his company were negligent in the completion of this project. Passing final inspection establishes that the pool was legally built and can be legally used. On February 28, 1998, the City of Miami issued a letter to Mary Gonzalez threatening to impose a fine against her in the amount of $250.00 for failing to obtain mandatory inspections for one of the building permits obtained by Blue Dolphin in 1990. Ms. Gonzalez's daughter, Gloria Gonzalez, was able to get the City of Miami building department to agree to waive the fine by explaining the history of the project to the building officials. The ability of Mary Gonzalez and her family to use the pool was impaired by Blue Dolphin's failure to properly install the pool and to correct defects in the pool so that the project could pass final inspection. Petitioner presented the testimony of a pool contractor2 who estimated that the cost of replacing the entire deck would be $8,975.00. The lack of steel reinforcement could be rectified by the removal of the portions of the deck that do not have the steel reinforcement. Petitioner's expert was not prepared to estimate the cost of replacing only the portions of the deck that had not been reinforced before the concrete was poured. Respondent's testimony established that replacing only the portions of the deck that had not been reinforced would be substantially less than the estimate provided by Petitioner's witness. At the time the subject pool was initially installed, Blue Dolphin was in the height of its busy season and had more jobs going than Respondent could properly supervise. Section 489.1195(1), Florida Statutes, imposed on Respondent, as Blue Dolphin's qualifying agent, the duty to supervise the company's operations, including all field work at all sites. Petitioner's costs of investigation and prosecution of this proceeding, excluding attorney's fees, totaled $1,436.50 as of April 23, 1998. Respondent has been disciplined by Petitioner on three prior occasions. On December 8, 1994, Petitioner entered a Final Order in Petitioner's case number 92-15716 pursuant to a settlement agreement of alleged violations of Section 489.129(1)(e), (f), and (g), Florida Statutes (1992). By the settlement, Respondent neither admitted nor denied the alleged violations. Respondent agreed to pay a fine of $100 and costs in the amount of $625. On August 13, 1990, Petitioner entered a Final Order in Petitioner's case number 101966 that found Respondent guilty of violating the provisions of Section 489.129(1)(d) and (m), Florida Statutes, by failing to obtain a final inspection for a pool installation and for committing negligence, incompetence, misconduct, and/or deceit in the practice of contracting. As a result of the Final Order, Respondent paid an administrative fine in the amount of $2,500 and his license was suspended from August 13, 1990, to September 18, 1990 (the date he paid the administrative fine). On April 1, 1986, Petitioner entered a Final Order in Petitioner's case number 0058699 pursuant to a settlement agreement of alleged violations of Sections 489.1119, 489.129(1)(g), (j), and (m), Florida Statutes. By the settlement, Respondent neither admitted nor denied the alleged violations. Respondent agreed to pay a fine of $1,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered that dismisses Count I of the Amended Administrative Complaint, but finds Respondent guilty of Counts II, III, and IV of the Amended Administrative Complaint. For the violation of Count II, Petitioner should impose an administrative fine against Respondent in the amount of $1,000. For the violation of Count III, Petitioner should impose an administrative fine against Respondent in the amount of $2,000. For the violation of Count IV, Petitioner should impose an administrative fine against Respondent in the amount of $2,000. The Final Order should order Respondent to obtain from the City of Miami a satisfactory final inspection of the Gonzalez pool within 90 days of the entry of the Final Order. The Final Order should place Respondent's licensure on probation for two years and should impose reasonable conditions of probation pursuant to Rule 61G4-17.007, Florida Administrative Code. The Final Order should order Respondent to pay within 90 days of the entry of the Final Order Petitioner's costs of investigating and prosecuting this matter, excluding costs associated with attorney's time. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative 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 this 21st day of April, 1999
Findings Of Fact Petitioner is the holder of Oyster Lease NO. 981. The annual rent for the lease has been paid in full as it became due and the lease is currently in full force and effect. No formal action has been brought by DNR to revoke this oyster lease. On June 30, 1988, Petitioner filed a valid and adequate application for a special activity license to use mechanical harvesting implements on this lease. Petitioner furnished or will furnish a bond payable to the Governor of the State of Florida and approved by DNR in the sum of $3,000.00 as required for issuance of a special activity license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein grant the application of W. E. Schoelles for a special activity license to use mechanical harvesting implements on Oyster Lease NO. 981. DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 22nd day of March, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5989 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Natural Resources The only finding of fact proposed by DNR is rejected as being irrelevant and unsupported by the competent evidence. COPIES FURNISHED: Harold A. McLean Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, FL 32399 J. Ben Watkins Attorney at Law 41 Commerce Street Apalachicola, FL 32320 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue The issues are whether Respondent committed the violations alleged in Petitioner’s Second Amended Administrative Complaint; and, if so, what penalties should be imposed.
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, the stipulated facts, and matters subject to official recognition, the following Findings of Fact are made: The Parties and the Events of August 24, 2019 The Department is the state agency charged with encouraging the development of aquaculture3 in Florida. § 597.003(1), Fla. Stat. “When any qualified person desires to lease a part of the bottom, water column, or bed of any [state waters] for the purpose of growing oysters or clams . . . , he or she shall present to [the Department] a written application ” § 597.010(1), Fla. Stat. Mr. Lee and his father, Robert J. Lee, jointly hold Aquaculture Certificate of Registration No. AQ1529074. On January 5, 2016, they applied to the Department for a state owned submerged land aquaculture lease in the 2 Petitioner’s Exhibit G is a flash drive containing video footage of Officer Travis’s traffic stop and subsequent arrest of Mr. Lee. 3 Section 597.0015(1), defines “aquaculture” as “the cultivation of aquatic organisms.” Section 597.0015(3), defines “aquaculture products” as “aquatic organisms and any product derived from aquatic organisms that are owned and propagated, grown, or produced under controlled conditions.” vicinity of Alligator Harbor in Franklin County, Florida. The lease was to be used for the commercial cultivation of oysters and clams. The Department issued a ten-year lease, Sovereignty Submerged Land Aquaculture Lease No. 19-AQ-1465, to Mr. Lee and his father on February 3, 2016. One provision therein required the lessee to be bound by the current and future versions of the Florida Statutes and the Florida Administrative Code. Another provision stated that a violation of chapter 597 and/or chapter 5L-1 “may be cause for this lease to be terminated without further notice to the lessee and shall result in the forfeiture to lessor of the works, improvements, and shellfish in and upon the leased premises.” On June 15, 2017, Mr. Lee pled nolo contendere to several charges filed in Franklin County, Florida. Two of the aforementioned charges pertained to the criminal offenses of possessing untagged and undersized oysters, and Mr. Lee was adjudicated guilty of all charges. At approximately 3:00 a.m., on August 24, 2019, Officer David Travis of the Florida Fish and Wildlife Conservation Commission was on patrol in Carrabelle, Florida, and traveling west on US-98, 25 miles from Alligator Harbor. He observed a Chevrolet Tahoe pulling a boat4 that had no trailer lights. A Ford Fusion was closely following the Tahoe. Officer Travis then made a U-turn in order to initiate a traffic stop based on the lack of trailer lights and the failure of both vehicles to use their blinkers prior to making two turns. Mr. Lee was driving the Fusion, and a friend of Mr. Lee’s was driving the Tahoe. Upon inspecting the boat, Officer Travis saw four untagged baskets, one blue and three orange. The blue basket was completely full with at least 40 4 The boat was registered to Mr. Lee’s father. pounds of unculled5 oysters. The orange baskets were approximately the same size as the blue basket, and two of the orange baskets were at least 75 percent full with unculled oysters. The third orange basket contained 15 to 20 culled oysters. The boat and the contents therein were wet. Officer Travis found multiple pairs of wet gloves and one pair of wet socks inside a yellow oyster sack at the boat’s stern. At the bow, he found several casting nets that were soaking wet and containing fresh grass, mud, sand, and live crustaceans. Officer Travis also found a mullet in a cooler that appeared to have been recently caught. During an inspection of the Tahoe, Officer Travis found a large, white cooler with a large quantity of culled oysters in a bed of ice. According to Mr. Lee, those oysters were harvested from his Alligator Harbor lease on August 22, 2019, and were intended for personal consumption. Mr. Lee told Officer Travis during the traffic stop that he had taken the oysters described in paragraph 6 from his lease in Alligator Harbor on August 23, 2019, between 10:00 a.m. and 6:00 p.m. Mr. Lee further stated to Officer Travis that he had transported the oysters at issue to his girlfriend’s house in Carrabelle where he had begun to cull some of them. According to Mr. Lee, he and his girlfriend had gotten into an argument, and Mr. Lee decided to take the oysters to his father’s home in order to finish culling them. Mr. Lee and his friend were supposedly driving to Robert J. Lee’s home when Officer Travis pulled them over. Officer Travis arrested Mr. Lee and his friend. Ultimate Findings Count I of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rule 5L-1.007(2) on approximately 5 Wild oysters commonly grow together in clumps. “Culling” refers to the process by which wild oysters are separated from each other. The term can also encompass the cleaning, grading, and sorting of oysters. August 23, 2019, by failing to label containers holding oysters. Neither Officer Travis’s arrest report nor his testimony mentioned any tags on the baskets in the boat or the cooler in the Tahoe. Also, no tags are visible during the footage from Officer Travis’s body camera. While Mr. Lee testified that he had a bulk tag that applied to all of the containers at issue, the undersigned does not find Mr. Lee’s testimony to be credible. Accordingly, the Department proved Count I by clear and convincing evidence. Count II of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee failed to timely deliver oysters to a certified processing facility on approximately August 23, 2019, as required by rule 5L- 1.008(7). The aforementioned rule requires that “shellfish shall be harvested between sunrise and sunset as established by the U.S. Weather Service.” As noted above, Officer Travis observed that the contents inside the boat were wet and fresh, and that evidence convincingly undermines Mr. Lee’s assertion that the oysters at issue were harvested on August 23, 2019, prior to 6:00 p.m. While Mr. Lee asserted that the oysters in question were intended for personal consumption rather than for sale, that assertion is undermined by the large number of oysters Officer Travis observed in the boat during the August 24, 2019, traffic stop. Therefore, the Department proved Count II by clear and convincing evidence. Count III of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rule 5L-3.004 on approximately August 23, 2019, by attempting to transport oysters to a private residence for sorting and washing rather than performing those activities over his lease. As noted above, Officer Travis observed a large quantity of unculled oysters during the traffic stop. Those oysters had not been sorted and washed over Mr. Lee’s lease. Also, the allegation in Count III is consistent with what Mr. Lee told Officer Travis during the traffic stop. Accordingly, the Department proved Count III by clear and convincing evidence. Count IV of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rules 5L-1.008(5)(a) and 5L- 3.007(8)(c) in December of 2018 by harvesting and replanting wild shellfish stock on the submerged lands of his lease. However, the Department presented no clear and convincing evidence that Mr. Lee violated rules 5L- 1.008(5)(a) and 5L-3.007(8)(c). Count V of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee was convicted on June 15, 2017, of possessing untagged oysters in violation of section 597.0041(4). As noted above, Mr. Lee was adjudicated guilty on June 15, 2017, of possessing untagged and undersized oysters. The Department thus proved Count V by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department impose a cumulative fine of $4,000.00 ($1,000.00 each) for Counts I through III and V. The undersigned also recommends that Aquaculture Certificate of Registration No. AQ1529074, jointly held by Mr. Lee and his father, be revoked. Finally, the undersigned recommends that Sovereignty Submerged Land Aquaculture Lease No. 19- AQ-1465 be terminated with Mr. Lee forfeiting all works, improvements, and shellfish in and upon the lease premises.6 6 Mr. Lee argued that his father’s interest in the Certificate of Registration and the lease at Alligator Harbor should not be extinguished because his father had no involvement with Mr. Lee’s violations. However, Mr. Lee offered no authority to support his argument, and the undersigned’s independent research did not find anything to support Mr. Lee’s position. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 20th day of November, 2020. COPIES FURNISHED: Robert Kevin Lee Post Office Box 28 Carrabelle, Florida 32322 Darby G. Shaw, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 (eServed) Allan J. Charles, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 (eServed) Stephen M. James, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 531 Tallahassee, Florida 32399 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Banana Island is separated by marshland into areas known as Islands No. 9 and No. 10. The respondent Association presently owns and operates on Island No. 10 a dock and a dive shop which sells snacks and compressed air to divers who use the nearby springs. The purpose of the proposed boardwalk is to connect the existing dock facilities on Island No. 10 to the upland area on Island No. 9, a portion of which will be used as a picnic area for boaters, swimmers and divers. The boardwalk is to be 220 feet long and six feet wide. The immediate area upon which the boardwalk is to be constructed is not utilized by the manatee because of its shallow depth. While the boardwalk would result in the shading of approximately 1,000 feet of marshland, this amount is too insignificant to affect the manatee. There are approximately 1,000 manatee in the United States, and the manatee has been designated as an endangered species under Federal and Florida law. The manatee exists throughout the southeastern portion of the United States. They inhabit areas off Texas, Louisiana, Florida, on up to North Carolina, though it is unusual to see them north of Brunswick, Georgia. The Kings Bay area of Crystal River, primarily around the Springs, and the area of Homosassa Springs provides a winter home for approximately 110 manatee, or about ten percent of the entire manatee population. The manatee come to the Kings Bay area in the winter months from mid-November through March 31st due to the warmer temperatures of the water around the springs. There is only occasional use of the springs area by the manatee between March 31st and November 15th. The numbers of manatee coming into the Kings Bay area has increased since 1971. This increase could be due to better observation techniques or to the reduction of other suitable habitats for the manatee. At least seventy percent of the population return each year. This year, seven new calves were born in the area. During the cooler months, approximately forty- five percent of the manatee can be found within five-eights of a mile of the main spring in Kings Bay. The proposed boardwalk is to be located approximately 150 feet from the main springs. No manatees have been sighted within twenty-five yards of the boardwalk site. The existing dock is located about seventy feet from the main springs. Manatees have been sighted near the end of this dock, which was built in 1971. The general area surrounding the site of the proposed boardwalk, primarily the springs area, is used heavily by boaters, swimmers and divers. Observations during a nonconsecutive seven-day period in late November and early December noted some 603 boats using the general area of Kings Bay, some 250 divers around the springs area and over 430 top-water observers of the manatee. These numbers would lessen during the Spring and pick up again during the Summer and latter part of the Fall months. On January 1, 1979, some fifty-two boats were served within the main springs area. In Citrus County alone, there are over 5,700 registered pleasure and commercial boats. When cruising, the manatee generally travels at a rate of speed of two to three miles per hour. When moving out of the way of a boat, the manatee can move at about eight to nine miles per hour. When confronted by an oncoming boat, the manatee either immediately submerges or turns to the right. Many manatee in the Kings Bay area have propeller scars on their bodies. A few of the manatee, generally the juvenile manatee, appear to enjoy and seek contact and association with the divers. The majority move away and seek to avoid the divers. During periods of heavier boat traffic around the springs, the manatee generally move out into the colder water adjacent to the springs. Continued disruptive activity such as motor sounds, fast moving boats, heavy diver or boat traffic, and harassment from divers and swimmers can prove to be dangerous to the manatee. Such activity can result in a failure to mate and reproduce, body wounds, and a forcing of the manatee out into colder waters, thus disrupting normal feeding patterns and behavior. In 1978, the Florida legislature passed the "Florida Manatee Sanctuary Act," declaring the State of Florida to be a refuge and sanctuary for the manatee. Section 370.12(2), 1978 Supplement to Florida Statutes. This Act directed the Department of Natural Resources to adopt rules regulating the operation and speed of motorboat traffic between the dates of November 15th and March 31st in the Kings Bay area of Crystal River, as well as in other portions of the waters of the State. At the time of the administrative hearing in this cause, the Department of Natural Resources was in the process of adopting Chapter 16N-22 in implementation of the Florida Manatee Sanctuary Act. These proposed rules establish slow speed zones, idle speed zones and prohibited zones for motorboats in Citrus County. The area in dispute herein is designated as an idle speed zone, defined as the minimum speed that will maintain the safe steerageway of a motorboat. The federal government is expected to adopt all state regulations pertaining to the protection of the manatee. It was the opinion of both of the witnesses having knowledge and expertise regarding the activities and behavior patterns of the manatee that any development which attracts and promotes human activity in the springs area could possibly have a deleterious effect upon the manatee. As noted above, the dock and dive shop have been in existence and operation since 1971. Boating and diving activity has increased since that time. The respondent Association has no objection to and is in favor of the proposed new boat speed regulations. While a few boats can now tie up to the existing dock, boats would not be able to tie up to the boardwalk. Trash receptacles are planned for Island No. 9. If Banana Island No. 9 were accessible via the proposed boardwalk for recreational and/or picnic activities, it is entirely possible that there would be less boating activity around the immediate area of the main springs. The majority of the boats around the springs are small boats which the divers and manatee observers rent for those purposes. It is possible that larger boats could be utilized to provide transportation for swimmers and divers to and from the area, thus reducing the number of boats in the immediate area of the springs. During the hearing, the applicant offered and stated its willingness to close down the boardwalk during the winter months should future studies or surveys illustrate that the manatee is being harmed therefrom. The successful and profitable operation of the respondent's boating and diving enterprises depends upon the continued habitation of the area by the manatee.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent's application for a permit to construct and maintain a boardwalk be granted, subject to the stipulations proposed in the permit appraisal relating to the opening and the maintenance of vegetation. Respectfully submitted and entered this 15th day of March, 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman Rogers, Towers, Bailey, Jones and Gay Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Baya M. Harrison Mark J. Proctor Ausley, McMullen, McGehee, Assistant Department Attorney Carothers and Proctor 202 Blount Street Post Office Box 391 Crown Building Tallahassee, Florida 32302 Tallahassee, Florida 32304
The Issue Whether the Notice to Proceed with the work and activities authorized by Amended Permit IR-507 should be issued.
Findings Of Fact On July 24, 1996, Respondent, Town of Indian River Shores (Town), filed an application with Respondent, Department of Environmental Protection (Department), for a permit to construct a beach access ramp seaward of the coastal construction control line. By Final Order dated November 27, 1996, the Department granted Permit Number IR-507. Petitioners, Peter Broom and Jeremy R. Geffen, and Duane Jackson, who is not a party to this proceeding, protested the granting of the permit and requested a formal hearing. A formal administrative hearing was held on November 13- 14, 1997, before Administrative Law Judge Errol H. Powell, who issued a Recommended Order on December 8, 1997, recommending that the Department enter a final order granting Permit Number IR-507 with special conditions as may be required by the Department for the protection of marine turtles. Administrative Law Judge Powell concluded the following in Paragraph 49 of the Recommended Order: 49. The evidence demonstrates that the impact of the proposed beach access ramp is minimal; that the construction or use of the beach access ramp will have no adverse effect on the marine turtle or the turtle nesting; and the beach access ramp will not cause significant adverse impacts or cumulative impacts. On January 13, 1998, the Department entered a Final Order, adopting the Recommended Order of Administrative Law Judge Powell and granting Permit Number IR-507 subject to two additional special conditions recommended by the Department staff during the final hearing pertaining to a survey of turtle nesting areas and restrictions on the use of the Town's ATV vehicle as discussed in Findings of Fact 34 and Conclusion of Law 52 of the Recommended Order, which provided: 34. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp. * * * 52. Additionally, the DEP having considered both emergency and routine patrol access, did not deny the CCCL permit. Only another recommendation to protect marine turtles was made by the DEP, regarding the routine patrol. On June 16, 1998, a Final Order was issued by the Department, issuing Amended Permit Number IR-507. Among the special conditions of the amended permit was that the Town would conduct a marine turtle nesting survey prior to the utilization of the access ramp. A notice to proceed with the activities authorized by Amended Permit Number IR-507 was issued on September 17, 1999. Petitioners requested an administrative hearing, challenging the notice to proceed. Petitioners allege that the notice to proceed had been issued without adequate demonstration of marine life/turtle nursery protection and that the proposed construction would adversely affect marine and turtle life on the beach. At the hearing on the motion to dismiss, Petitioners conceded that Town had fulfilled all special conditions prerequisite to the issuance of the notice to proceed and that the permit did not require that a survey of turtle nesting be done prior to the issuance of the notice to proceed or to the commencement of construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered dismissing the Request/Petition for Administrative Hearing. DONE AND ENTERED this 7th day of January, 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 7th day of January, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Theodore W. Herzog, Esquire 1101 Simonton Street Key West, Florida 33040 Michael R. Dombroski Coastal Technology Corporation 3625 20th Street Vero Beach, Florida 32960 Chester Clem, Esquire Clem, Polackwich & Vocelle 3333 20th Street Vero Beach, Florida 32960-2469
The Issue Whether the application of Respondent Gulf County (County) for permit to install a beach access road, constructed of oyster shell or dolomite, at the stumphole area on Cape San Blas should be granted.
Findings Of Fact On April 11, 1996, the County applied for a permit from DEP to install a beach access road constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide at the stumphole area on Cape San Blas. The County owned the property at the site where a crude road bed to the beach already existed. On that same date, County Manager Donald Butler met with a DEP field engineer, William Fokes, on the site to determine the linear footage that would be necessary for the access road at the stumphole area. Fokes then issued the field permit for the access road to be constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide. Since beach driving is permitted by the County in the area, the access road aids in preventing illegal crossing of beach dunes by motorists to get to the beach. Prior to issuance of the field permit and construction of the access road, the only legal motorist access to the beach was seven miles away. Permits to drive on the beach are issued by the County. DEP rules require that all applicants proposing to conduct permitted activities on a beach use a designated beach access. This road will allow access to conduct permitted activities, thereby preserving and enhancing public beach access. DEP will not permit a project that is expected to adversely impact the beach dune system. Although seaward of the Coastal Construction Control Line (CCCL) in the County, the area which is the subject of this field permit contained no dunes or vegetation since Hurricane Opal had flattened the area. Such a project cannot be permitted if the project will adversely impact existing upland property or property of others. In the instant case, neither the Petitioner’s property, which is located two miles away from the project site, or property of other owners in the area will be adversely impacted. The road is designed to be a non-rigid, pervious structure which causes less impact to any existing dune system. The road site is located on County property and provides logical and appropriate access. The construction of the road did not violate DEP prohibitions on permitting activities having adverse impact to marine turtles since the construction permit expired prior to the turtle nesting season. A requirement of field permit issuance is that the applicant and the DEP area engineer meet on site and review the project. This event occurred on April 11, 1996, when Butler and Fokes met on the site. Fokes determined that the project was within field permitting guidelines and issued the permit. Fokes was authorized to issue the field permit because the project fell in DEP’s category of a driveway or similar activity. Expected impacts of construction of the access road and a driveway are deemed similar by DEP. Subsequent review by DEP staff of Fokes’ issuance of the field permit determined that sufficient information had been provided to him for issuance of the permit, that the project falls in the category of minor activity and that no adverse impact to dunes, property of others, beach access or nesting marine turtles is expected.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered confirming the grant of the field permit which is the subject of this proceeding. DONE and ENTERED this 9th day of May, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1997. COPIES FURNISHED: Lynette L. Ciardulli, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, FL 32399-3000 Michael Paulsson, Pro Se Route 1, Box 347B Port St. Joe, FL 32456 Timothy J. McFarland, Esquire Post Office Box 202 Port St. Joe, FL 32457 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Findings Of Fact Suncoast Highland Corp. (Suncoast), is the developer and registrant of Shadow Run Subdivision in Hillsborough County. Prior to 1970, Suncoast was known as Suncoast Peach Corporation. C. Thomas Petersen, Peter Lenhardt, and two other individuals formed Suncoast Peach Corporation in 1964. In 1974 Suncoast registered Unit 1 of Shadow Run with the Division of Land Sales (Division). At that time Suncoast's principals were C. Thomas Petersen, President and Director, and Peter M. Lenhardt, Vice President, Director, and in charge of marketing. As a charter stockholder and owner of 166,000 shares (26-2/3 percent of ownership), Lenhardt filed an affidavit stating he devoted 100 percent of his time five days per week to Suncoast's business affairs. Lenhardt was (and presumably still is) a registered real estate broker and was in charge of sales in Shadow Run. In 1977 Suncoast registered Unit 2 (consolidated with Unit 1) with the Division. At this time Petersen and Lenhardt alleged each owned 13.5 percent of Suncoast and Lenhardt again filed an affidavit stating he devoted 100 percent of his time to Suncoast's business affairs and was in charge of sales in Shadow Run. In the Annual Report filed November 13, 1978, Lenhardt executed an affidavit representing himself to be Suncoast's principal officer in connection with this filing. This report included financial and inventory data for Shadow Run, Units 1 and 2, as well as 16 other registered subdivisions. At this time Petitioner and Lenhardt represented they each owned 38 percent of Suncoast (Exhibit 1E). On January 30, 1979, Lenhardt filed, under oath, renewal applications for Shadow Run, Units 1 and 2. This application (Exhibit 1F) showed out of 277 lots registered in Unit 1, 227 had been deeded and 50 remained to be sold. In Unit 2 out of 89 registered lots, 76 had been deeded and only 13 remained unsold. In August 1978 the Division began receiving complaints from Shadow Run homeowners concerning assessments, placing of utilities, and lack of promised recreational facilities. After meeting with the homeowners association and representatives of Suncoast, the Division issued a Notice to Show Cause against Suncoast. For several months thereafter representatives of the Division, Suncoast, and the homeowners association attempted to resolve the complaints. On April 19, 1979, C. Thomas Petersen, President, and Thomas Coates, Secretary, of Suncoast executed a stipulation in which, inter alia, further sales would remain suspended pending submission of all promotional and advertising materials to the Division, Suncoast would enter into an agreement concerning recreational facilities to be furnished by Suncoast, and Suncoast would pay a $7,500 civil penalty to the Division (Exhibit 1G). On December 10, 1979, Suncoast executed an agreement (Exhibit 1H) whereby it agreed, among other things, to install a concrete boat ramp no longer than 20 feet extending not more than two feet into Lake Grady on Lot 14, Block 1, Shadow Run, Unit 1, and convey legal title of the boat ramp area to the association; and, in conjunction with the boat ramp, provide a parking area 96 feet wide abutting on Shadow Run Boulevard at Lot 14, Unit 1, Shadow Run Subdivision, running from Shadow Run Boulevard to the water. This agreement was not recorded. No evidence was submitted when, or if, Lenhardt disposed of his ownership interest in Suncoast and Timber Oaks and terminated his management role in those companies. Lenhardt was listed as Secretary/Treasurer of Suncoast in the annual corporate report for 1980. His name on the 1981 annual corporate report for Suncoast was lined out and Linda Burr's name was added as Secretary. Lenhardt's name does not appear on subsequent reports. Timber Oaks, Inc., was incorporated February 11, 1980, with C. Thomas Petersen as President, Peter M. Lenhardt as Vice President, and Linda Burr as Secretary (Exhibit 3). On the 1981 annual corporate report Lenhardt's name was lined out and Linda Burr's name was added as Secretary. Coppice-Boden, Inc., was incorporated August 28, 1980, with Peter Lenhardt as President, Helen K. Lenhardt as Vice President, and Delores Hamm as Secretary. Hamm's name was deleted from the 1982 annual corporate report and both Lenhardts continued to be listed through the 1984 annual corporate report. No evidence was submitted showing transfer of the property which included Lot 14, Unit 1, Shadow Run Subdivision 1, from Suncoast to Timber Oaks, Inc.; however, by warranty deed dated October 29, 1982, Timber Oaks, Inc., conveyed property which specifically included Lot 14, Unit 1, Shadow Run Subdivision 1, to Coppice-Boden Corp., for a stated consideration of $340,000 (Exhibit 5). On November 11, 1982, Coppice-Boden, Inc., mortgaged the property which included Lot 14, Block 1, Unit 1, Shadow Run Subdivision, to G. G. Moore to secure a note in the amount of $72,031.63. The Special Warranty Deed dated February 29, 1980 (Exhibit 8) whereby Community Banks of Pinellas conveyed certain property to Timber Oaks, Inc., excluded Lots 1 through 22, inclusive, of Block 1, of Shadow Run, Unit 1.
The Issue Whether the Respondents committed the violations alleged in the Administrative Complaint dated April 18, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: FEMC is the entity responsible for providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers ("Board"). § 471.038(4), Fla. Stat. The Board is responsible for regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. At all times material to this proceeding, Mr. Hernandez has been a licensed professional engineer in the State of Florida, having been issued license number P.E. 46618. G.F. Consulting Engineers, Inc., is a licensed engineering firm holding Certificate of Authorization # 9129. In late 2004, architect Carlos Lozano was commissioned to design plans for the renovation of a structure that was to become the Moon Thai Restaurant in Coral Gables, Florida. G.F. Consulting Engineers, Inc., was retained to provide structural engineering services for the Moon Thai Restaurant Renovation Project ("Project"). Mr. Hernandez was the professional engineer in charge of producing the plans and calculations for the structural portions of the Project. On February 8, 2005, Mr. Hernandez sealed, signed, and dated a set of structural plans, which were submitted to the Coral Gables Building Department. Dariusz Reczek, P.E., a structural plans examiner employed by the Coral Gables Building Department, reviewed the plans and issued a set of Structural Review Comments dated April 12, 2005. Among other comments, Mr. Reczek directed Mr. Hernandez to "[r]eview 50% rule per FBC [Florida Building Code] (3401.8)" and to provide a set of structural calculations.3 Mr. Hernandez received Mr. Reczek's comments in April 2005, and, on or about April 26, 2005, Mr. Hernandez sealed, signed, and dated structural calculations and revised structural plans for the Project. Mr. Reczek prepared another set of Structural Review Comments dated May 23, 2005, which included the comments made on April 12, 2005, and added three comments related to the new structural drawings submitted April 26, 2005. On June 1, 2005, Mr. Hernandez sealed, signed, and dated additional structural plans and, on June 2, 2005, Mr. Hernandez sealed, signed, and dated additional structural calculations. The comment that Mr. Hernandez "review the 50% rule" was ambiguous with regard to Mr. Reczek's opinion as to whether the rule did or did not apply. Mr. Hernandez was, however, advised that Mr. Reczek was of the opinion that the 50 percent rule did apply to the Project. Mr. Hernandez believed that the 50 percent rule did not apply.4 Although Mr. Hernandez disagreed with Mr. Reczek's assessment that the 50 percent rule applied to the Project, he nonetheless modified the structural calculations and plans to address Mr. Reczek's primary concern, the danger that the building would overturn as a result of being subject to high velocity winds. In the June 1 and 2, 2005, plans and calculations, Mr. Hernandez addressed Mr. Reczek's concern that the building might overturn by designing 8' x 8' concrete dead weight anchors that were to be attached to the existing footings on the building. The dead weight anchors were designed to prevent the building from overturning by adding additional weight to the building to counteract the overturning effect. Mr. Hernandez's intent in the June 1 and 2, 2005, structural plans and calculation was not to redesign the footings of the building.5 Mr. Hernandez's design of the dead weight anchors was appropriate to address the concern of the Coral Gables Building Department plans examiners regarding the lateral stability of the building and the possibility of overturning, even though he disagreed with the plan examiner's concern, and Mr. Hernandez used due care and had due regard for acceptable standards of engineering principles in formulating the design.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Engineers enter a final order dismissing the Administrative Complaint against Fresnel E. Hernandez, P.E., and G.F. Consulting Engineers, Inc. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 12th day of June, 2007.
