Findings Of Fact James V. Hodnett, Jr., was registered as a real estate broker in 1974 and has been continually so registered since that time (Exhibit 7). Sea Pines Realty, Inc.'s Articles of Incorporation were filed December 13, 1977, and it was authorized to operate as a Florida corporation on December 15, 1977. Respondent, Sea Pines Realty, Inc., applied for registration as a corporate real estate broker on January 14, 1978, with James V. Hodnett, Jr., as president and active firm member. Request for initial certification for corporation was forwarded to the Florida Real Estate Commission on January 20, 1978, and license was issued to Sea Pines Realty, Inc., as a corporate broker effective February 9, 1978 (Exhibit 6). Of those nine witnesses who purchased homes or lots in Sea Pines, only one of these witnesses, William Barnes, purchased a lot (or home) in Sea Pines later than 1977. Mr. Barnes purchased his home in 1979 from the previous owner and neither of Respondents was involved in or had any influence on that transaction. Mr. Miller testified on direct examination that he had searched the public records and learned that Hodnett had owned the land abutting Sea Pines to the north which was sold to Belcher mines, that Belcher mines set off explosives to blast rock in those mines, and that his house was damaged by those explosives. Upon cross-examination, Mr. Miller admitted that he could not say for certain that the property had been sold to Belcher by James Hodnett, Jr., or James Hodnett, Sr., and that it could have been sold by the latter. In addition to Miller, who purchased his property in 1976; Wurst, who purchased in 1971; Morgal, who purchased in 1977; Farrelly, who purchased in 1971; Leggiere, who purchased in 1976; Senderling, who purchased in 1976; Anderson, who purchased in 1969; and Campbell, who purchased in 1971, all testified that they purchased their properties through, and had contact with, Jean Humphries, who was the salesperson for the developer of this property. Representations regarding the plans to build a golf course, to install underground utility lines, and other representations constituting the gravamen of these charges were all made by Ms. Humphries and none of these representations was made by Hodnett.
Findings Of Fact The proposed addition to the existing commercial docking facilities in the Pine Island Sound Aquatic Preserve would consist of approximately 5,000 square feet of additional overwater structure. The effects of such a facility on the marine ecosystem were described in expert testimony. The structure would cut off penetration of light to the bottom and the organisms living below. The resultant change in the biota under the dock would reduce the number of sedentary species, that is to say those species that remain essentially stationary in a given area, and would increase the number of errant species, that is to say those species which move from place to place. This change in the existing ecosystem directly affects the food chain and ultimately adversely affects commercial and sports fishing. Other negative impacts on the area due to the proposed construction would be increased boat traffic, sewage, introduction of petroleum products into the waters and an increase in the number and size of boats docking in the area thereby expanding the shaded area beyond that of the dock itself. Though the actual amount of damage to the preserve from both the shading effect and usage as a whole cannot be quantified without appropriate natural asset inventroy and study, some amount of damage would occur to the biological integrity of the area. The proliferation of docks within the Aquatic Preserve along with the cumulative impact of such construction must be considered as a potential threat to the Preserve. The cumulative impact and extent of damage which might occur as a result of the proposed construction must be determined through the conduct of a study developing a management plan for the Preserve, balancing present and future needs and values. Each individual Petitioner owns waterfront property within the Pine Island Sound Aquatic Preserve. Because of the potential negative impact of the proposed project and its cumulative impact with other projects on waterfront property, each Petitioner would be materially affected by the granting of this lease. No use or management criteria, ultimate or incipient, for the Pine Island Sound Aquatic Preserve have been adopted. However, since December, 1975, DNR has been engaged in the process of adopting such rules for the Biscayne Bay Aquatic Preserve. Once adopted, these rules will serve as a model for rules to be promulgated for the other aquatic preserves including Pine Island Sound Aquatic Preserve. No studies have been conducted by DNR of Pine Island Sound Aquatic Preserve. There is no inventory of available commercial docks, boat traffic, ingress or egress within the Preserve. The proposed rules for the Biscayne Bay Aquatic Preserve are not presently being applied to aquatic preserve leases.
Findings Of Fact Based upon the stipulations entered into the record, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The parties: The Petitioners, Buck Flowers and Ray Thornton, are commercial fishermen doing business within the State of Florida. If enacted, the proposed rules would substantially affect their business interests. The Petitioner, Organized Fishermen of Florida, Inc., is an association of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants, and fish retailers doing business in the State of Florida. If enacted, the proposed rules would substantially affect its interests and the interests of its membership. The Petitioner, Tim Adams, is a commercial fisherman doing business in Florida. If enacted, the proposed rules would substantially affect his interests. The Petitioner, Bird Island Fishery, is a harvester and wholesaler of fish within the State of Florida and its interests would be substantially affected by the enactment of the proposed rules. The Petitioner, Kim Gerz, is a commercial fisherman whose interests would be substantially affected by the proposed rules. The Petitioner, Goodrich Seafood, is a company that unloads and ships fresh fish in the State of Florida. Its interests would be substantially affected by the proposed rules. The Petitioner, Lee County Fisherman's Cooperative, Inc., is a company that unloads and ships fresh fish. Its interests would be substantially affected by the proposed rules. The Petitioner, Sigma International Co., is an exporter of mullet roe. If enacted, the proposed rules would substantially affect its business. The Respondent, Marine Fisheries Commission, is an entity created by statute to serve within the Department of Natural Resources and empowered with rulemaking authority as set forth in Section 370.027, Florida Statutes. The Intervenor, Florida League of Anglers, Inc., is a corporation whose purpose is to protect and enhance Florida's fisheries and their habitats. The Intervenor, Florida Conservation Association, is an affiliate of the Coastal Conservation Association, whose main interests are to protect and enhance Florida's fisheries and marine environments for recreational fishing in Florida. The Intervenor, Florida Audubon Society, is a corporation whose main purpose is to protect Florida's natural outdoor environment and wildlife. The Intervenor, Florida Wildlife Federation, is a corporation whose main purpose is to protect Florida's natural outdoor environment and wildlife. Background of the proposed rules: The Department of Natural Resources began a study of issues related to the black mullet fishery within this state in 1987. The study was to cover a five year period beginning in 1987-88. It was anticipated that the study would serve as the genesis for regulations to be imposed on black mullet fishing within the State of Florida. In 1989, the Commission adopted rules related to black mullet fishing. Those rules specified periods during which black mullet could not be fished, set gear restrictions, closed designated areas to fishing, amended qualifications to catch commercial quantities of mullet, and set recreational limits. The rules specified that during 15 weekends of the year, black mullet fishing would be closed for 30 hour periods. Another restriction, to become effective July 1, 1992, established a minimum net mesh size of three inches. In 1990, the Commission adopted additional rules related to black mullet fishing: new areas were closed to fishing, minimum net mesh size during roe season was increased to four inches, commercial fishermen were prohibited from using spotter aircraft to locate schools, and weekend closures were extended from 30 to 54 hours with the additional stipulation that the fish had to be at the dock by closing time. Further, two additional weekends were closed to fishing. In June, 1991, the Commission met to consider new, more stringent rules related to the black mullet fishery. As a result of the discussions at that meeting, proposed new rules and amendments to rules were published in the Florida Administrative Weekly, Vol. 17, No. 32, August 9, 1991. The proposed rules: Rule Chapter 46-39, as set forth in the Florida Administrative Weekly, Vol. 17, No. 32, August 9, 1991, provided, in pertinent part: MARINE FISHERIES COMMISSION RULE CHAPTER TITLE: RULE CHAPTER NO.: Mullet 46-39 RULE TITLES: RULE NOS.: Recreational Harvest Seasons 46-39.0035 Commercial Harvest, Statewide Regulations 46-39.005 Northwest Florida Commercial Harvest Restrictions 46-39.0055 Southwest Florida Commercial Harvest Restrictions 46-39.0075 East Florida Commercial Harvest estrictions 46-39.0095 PURPOSE AND EFFECT: The purpose of these proposed new rules and rule amendments is to implement additional, more stringent controls on commercial mullet harvest to begin rebuilding mullet populations over the long term to achieve a 35 percent spawning stock biomass ratio (SSBR) for the species statewide. The Commission established the SSBR goal after receiving the results of a five-year study of Florida mullet conducted by the Department of Natural Resources scientists. The state is divided into three areas (Northwest, Southwest, and East Florida) and differential rules are imposed in each area, with the Southwest area being more stringently regulated to coincide with scientific evidence showing a significantly lower SSBR in the area. Week-long closures, year-round in the Southwest and during roe season elsewhere, are considered to be more effective methods to reduce fishing mortality than roe season weekend closures, which are being eliminated. The closures will also apply to recreational harvesters, thus eliminating enforcement problems that occur during periods when recreational mullet harvest is allowed and commercial fishing is prohibited. Limiting gill and trammel nets to a maximum of 600 yards will result in a significant reduction in length of nets being fished in some areas, and may also result in a harvest reduction. Commercial daily vessel limits of 500 pounds during non-roe season are intended to reduce harvest during those periods when mullet are least highly valued. SUMMARY: New Rule 46-39.0035 establishes recreational week-long closures to coincide with commercial closures in the three areas established by new Rules 46-39.0055,46-39.0075, and 46-39.0095. The week-long closures will be during roe season in Northwest and East Florida, and year-round in Southwest Florida. A new paragraph is added to subsection (2) of Rule 46-39.005 to limit gill and trammel nets used to harvest mullet to 600 yards maximum statewide. New Rule 46-39.0055 establishes a commercial mullet closure during the 22nd through the 28th days of the months of September, October, November, and December in the Panhandle and Wakulla-Hernando Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of January through August of each year. New Rule 46-39.0075 establishes a commercial mullet closure during the 22nd through 28th days of the each month of the year in the Pasco-Lee, Collier-Monroe Gulf, and Lake Okeechobee Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of February through September of each year. New Rule 46-39.0095 establishes a commercial mullet closure during the 22nd through the 28th days of the months of October, November, December, and January in the East Coast and St. Johns Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of February through September of each year. RULEMAKING AUTHORITY: Section 370.027(2), Florida Statutes. LAW IMPLEMENTED: Sections 370.025, 370.027, Florida Statutes. SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULES: The proposed amendments will directly affect those persons who harvest mullet for commerce. The proposal will indirectly affect wholesale dealers, retail dealers and consumers. The benefit of the measures is to ensure the sustained yield of the renewable mullet resource for human consumption and the food web. The cost of the proposal will be reduced levels of harvest and intermittent supplies of black mullet. The cost will vary regionally with the greatest reductions in the southwest Florida area. The proposed amendments will create a competitive advantage due to the differential regional regulations. The rule will not affect the open market for employment. The rule will affect small businesses. The rule will not increase paperwork or reporting requirements. Agency implementation costs for promulgation, hearings and filing will be approximately $6,500.00; enforcement costs total $38.00/hr. THE MARINE FISHERIES COMMISSION WILL CONDUCT A PUBLIC RULEMAKING HEARING ON THE PROPOSED RULES AT THE TIME, DATE AND PLACE SHOWN BELOW: TIME AND PLACE: 10:00 a.m. until 5:00 p.m., September 5, 1991; and 9:00 a.m. until 5:00 p.m., September 6, 1991 PLACE: Holiday Inn Tampa International Airport, 4500 West Cypress Street, Tampa Florida All written material received by the Commission within 21 days of the date of publication of this notice shall be made part of the official record. Subsequent to the publication of the notice described above, the Petitioners timely filed challenges to the proposed rules. Pursuant to the notice described above, the Commission met on September 5-6, 1991, for the purpose of conducting a public rulemaking hearing for the proposed new rules and proposed amendments to rules. At the meeting of September 5, 1991, members of the public were permitted to comment on the proposed rules and amendments. On September 6, 1991, the Commission allowed its staff to make a presentation regarding the options available to the Commission and deliberated the proposals before it. As a result of those deliberations, the Commission made substantial changes to the proposed rules. At that time the Commission acknowledged the challenges filed by the Petitioners herein and resolved to submit the changed proposed rules to the Governor and Cabinet for approval upon the favorable resolution of the administrative challenges. The substantially changed proposed rules were published in the Florida Administrative Weekly, Vol. 17, No. 39, September 27, 1991, and provided, in substance, for the following restrictions: 46-39.0035 Recreational Harvest Seasons--prohibits harvesting during the period of the first day and continuing through the seventh day of each month during the months of September through December of each year for the state waters from the Florida-Alabama border to the Hernando-Pasco County line; prohibits mullet harvesting during the period of the first day and continuing through the fourteenth day of each month during the months of January and September through December of each year for the state waters from the Hernando- Pasco County line to the Dade-Monroe County line, excluding state waters of the Atlantic Ocean in Monroe County and including all waters of Lake Okeechobee; and prohibits harvesting beginning on the first day of the month through the seventh day of each month during the months of January and October through December of each year in all state waters from the Florida-Georgia border to the Collier- Monroe County line, excluding state waters of the Gulf of Mexico in Monroe County and including all waters of the St. Johns River. 46-39.0055 Northwest Florida Commercial Harvest Restrictions-- prohibits harvesting mullet for commercial purposes in the Panhandle and Wakulla-Hernando Regions, as those areas are elsewhere defined, during the period beginning on the first day and continuing through the seventh day of each month during the months of September through December of each year. 46-39.0075 Southwest Florida Commercial Harvest Restrictions-- prohibits harvesting mullet for commercial purposes in the Pasco-Lee, Collier- Monroe Gulf, and Lake Okeechobee Regions, as those areas are elsewhere defined, during the period of the first day and continuing through the fourteenth day of each month during the months of January and September through December of each year. 46-39.0095 East Florida Commercial Harvest Restrictions--prohibits harvesting mullet for commercial purposes in the East Coast and St. Johns Regions, as those areas are elsewhere defined, beginning on the first day of the month through the seventh day of each month during the months of January and October through December of each year. The Commission abandoned the 500 pound trip limit previously proposed for each region but retained the limit for gill and trammel nets to 600 yards maximum, statewide. The Commission asserts that the changes to the proposed rules were generated by virtue of the written comments, public testimony, and Commission discussion contained in the record of the public hearing held on September 5-6, 1991. Scientific data: In determining an appropriate guide for managing the black mullet fishery, the Commission staff elected to utilize a system based upon a computer model commonly known as "DSPOPS." The DSPOPS model was designed by Dr. Ault, working with Dr. Mahmoudi, for use in mullet stock assessment. While Dr. Ault developed the model with the intention that Dr. Mahmoudi would use it in mullet stock assessment, Dr. Ault did not prescribe the variables to be inserted into the model or comment to Dr. Mahmoudi as to the advisability of his choices. In fact, the reliability of the model is dependent on utilizing reasonable scientific inputs where variables must be inserted. The spawning stock biomass ratio (SSBR) measures the total mature biomass or weight of the fish stock in an exploited fishery in relation to what it would be if it were unfished. The Commission determined, and the Petitioners have not challenged, that the desirable SSBR for mullet would be 35 percent. By using data from 1988 and 1989, and inserting variables into the DSPOPS model the Commission staff attempted to compute the baseline SSBR for mullet in Florida. The SSBR was calculated by region and was intended to depict the conditions of the mullet stock by each region. The use of SSBR as a tool to evaluate a fishery and propose management of it has been accepted in the past by the Commission and other entities charged with management responsibility. The target of 35 percent SSBR for mullet is a reasonable management goal. In electing which variable to plug into the DSPOPS model, Commission staff chose the conservative estimate or value for the parameter to be inserted. "Conservative" herein is used to mean that choice which would depict the "worst case scenario" and, would, therefore, in theory, err on the side of the preservation of the fish. Such selections, as will be addressed below, were not based upon the best scientific data available and constituted an improper use of the model. In utilizing the DSPOPS model, reasonable and appropriate scientific methodology dictate the use of reasonable values for the variables to be inserted into the model. When values from either extreme of the spectrum are used, the reliability of the output is diminished. That is, the less the probability of the occurrence in the real world would be. In this case, the Commission staff found in its initial stock assessment that the SSBR for mullet in the southwest region was 15.1 and 22.4 in the northwest region. That assessment required inputs in the DSPOPS model for the following parameters: recruitment function; natural mortality; fishing mortality; and sexual maturity. In choosing which input for recruitment function, the Commission staff used a Getz recruitment function. The recruitment function is intended to show the relationship among a designation of the fish population and the amount of new fish born into that population each year. Utilizing the Getz function, instead of the other available recruitment function options, consistently produces the lowest estimate of spawning stock biomass. Had the Commission staff utilized the Beverton and Holt density dependent option, the spawning stock biomass in the northwest region would have increased by 11.73 and in the southwest region by 5.29. With regard to the natural mortality parameter, the Commission staff chose a natural mortality of 0.3. The data available suggests that in Florida the mullet fishery has a natural mortality rate of 0.5. By using the lower value, the DSPOPS model calculated the SSBR at an arbitrarily lower level. Had the Commission staff used 0.43 for the natural mortality input the SSBR would have increased in the northwest region by 3.07 and by 4.79 in the southwest region. Similarly, the Commission staff used extreme variables when inputting the handling mortality. Thus, the computed spawning stock biomass was lower than a midrange option would have produced. Finally, with regard to sexual maturity, mullet achieve sexual maturity at age 4. That age is supported by competent scientific data and is established by the evidence presented in this case. Regardless, Commission staff used a sexual maturity matrix in the DSPOPS model that assumed some fish were still sexually immature at 6 and 7 years. If corrected, the SSBR results would have been increased by 10 percent. By relying on the DSPOPS modeling results for the SSBR assessment, as computed by the Commission staff, the Commission failed to consider the best available biological information regarding the mullet stock. When corrected parameters are input into the DSPOPS model, the SSBR assessment for mullet is dramatically increased. The amount of the increase depends on which parameter is changed. If midpoint values are selected and all inputs are changed, the model produces a SSBR for the northwest region of 52.74 and for the southwest region of 36.19. Economic data: Economic impact and small business impact statements were prepared for the proposed rules first published in August, 1991. Statements were not prepared for the amended proposed rules which were approved by the Commission at the September, 1991, meeting. Mullet have a shelf life of four days if handled properly. The bulk of the market demand is for fresh mullet with demand for frozen or smoked mullet being significantly smaller. Closures of longer than four days would require mullet customers to seek other markets for fresh mullet. Restaurants and other entities seeking a constant source of fresh mullet would look to other markets such as Louisiana to fill orders. If lost, such customers are hard to recapture as in the instance of the spanish mackerel market. It is anticipated that businesses relying on the fresh mullet market will lay off employees if extended closures go into effect. The economic impact statement did not estimate the number of people who would be unemployed or underemployed as a result of the closures. The monetary amounts of the lost market created by the reductions expected in the harvest of mullet was not included in the economic impact statement. The short-term and long-term values of lost market could be computed for those directly and indirectly impacted by the proposed rules. It is expected that the financial losses to commercial fishermen, fish wholesalers, and distributors will be considerable. Additionally, loss of mullet roe sales will result in loss of market since no fish stocks are available to substitute for the mullet roe. Options which would minimize the adverse economic impacts the proposed rules would cause for small businesses have not been presented or considered by the Commission. Closures of shorter duration but of more frequency would lessen the economic damage to small businesses. For example, four day closures would not result in the interruption of the availability of fresh mullet. As opposed to what is proposed, regulations which would increase the net mesh size to allow younger fish to remain uncaught would also lessen the economic damage to small businesses. An increase in the year of first capture would increase SSBR. As opposed to what is proposed, regulations setting trip limits for harvesting mullet would lessen the economic damage to small businesses. Setting net restrictions as proposed allows harvesting and lessens the economic damage to small businesses.
The Issue Whether or not Petitioner is entitled to a dredge and fill permit to construct a dock and seawall by provision of reasonable assurances that the project is in the public interest.
Findings Of Fact On May 8, 1989, the Petitioner, Kathryn Haughney, applied to DER for a permit to construct a dock and seawall on the shore of the Halifax River in Volusia County. The portion of the Haughney property where the dock and seawall would be constructed is separated from the Haughney home by John Anderson Drive, which parallels the river's edge and is separated from the river by a ribbon of undeveloped property at that location and to the south. A house is located at water's edge on the lot to the north of the proposed construction site. The Haughney home itself is set well back from John Anderson drive on the side of the street away from the river. The Halifax River is classified as a Class III water body under DER rules. The particular part of the Halifax River where the Haughney property is located and where the dock and seawall are proposed is also within the Tomoka Marsh Aquatic Preserve, which is an Outstanding Florida Water under DER rules. The dock as proposed by Petitioner will be 320 square feet. DER denied the permit application on July 19, 1990, but in so doing did not deny the application on the basis of the proposed dock, which, because of its dimensions, is exempt from DER permitting requirements. The seawall as proposed is to be 137 feet long. Petitioner applied to extend it 16 feet out into waters of the state at the northern end, gradually increasing to 34 feet into waters of the state at the south end. Additionally, 5 feet of riprap would also extend out into waters of the state along the seawall's entire length. The waters of the state that would be filled by the proposed seawall contain lush wetland vegetation that provides habitat for a number of macroinvertebrate species which are part of the food chain feeding fish and wading birds such as egrets and herons. Fiddler crabs and colonies of mussels have been observed on the site. The area to be filled provides a valuable habitat for fish and wildlife. There was no mitigation offered by Petitioner to make up for the loss of habitat to be occasioned by the proposed construction. Although Petitioner asserted DER had named no "endangered species" and that the Environmental Protection Administration had not designated this area as "endangered," those federal concerns were not at issue. If such federally designated species or location designation existed in the locale, it might militate against granting this application for permit, but in the negative, it is irrelevant. A vertical seawall exists immediately north of Petitioner's shoreline. The shoreline to the south remains undeveloped. (See Finding of Fact 2). Construction of seawalls, especially those that extend out from the existing shoreline, typically causes erosion on adjacent shorelines, and additional seawalls exaggerate wave energy and can have a cumulative erosive effect. The foregoing fact is found in reliance upon the testimony of Don Medellin, an Environmental Specialist II for DER, and Barbara Bess, an Environmental Manager for DER, both accepted as experts in environmental aspects of dredge and fill permits. The assertion that actual erosion on the property to the south has already occurred was contained in a letter from Petitioner's southern neighbor (DER Exhibit 6). Petitioner's representatives objected to consideration of this exhibit as "hearsay." They are correct and current erosion to the south is not found as a fact. Nonetheless, actual erosion in a pocket on the north end of Petitioner's shoreline has been shown by the direct testimony of Emmett and Martha Haughney, who assert that their property is eroding due to the existing seawall and that Petitioner wants a permit for a seawall to alleviate this erosion. Their evidence is confirmed by the personal observations and testimony of Mr. Medellin and Ms. Bess. Further, upon their testimony, it is accepted that this minimal pocket of erosion is most likely due to the existing seawall to the north and that if the Petitioner builds a seawall to the specifications now set out in the permit application, there is potential for similar and perhaps cumulative erosion to the shoreline to the south of Petitioner's lot. Neither the city nor county involved has land use restrictions which would prohibit Petitioner's proposed seawall except that Volusia County advocates riprap requirements if this permit application were granted. In its Notice of Permit Denial, DER advised Petitioner as follows: The Department has determined that the follow- ing changes to the project may make the project permittable: The vertical seawall should be eliminated and replaced with coquina rock riprap revet- ment. The riprap should be located further landward and conform to the slope of the existing embankment. Backfilling on the north property line is acceptable provided the fill area does not extend more than 10 feet westward in the most eroded area. Accordingly, the riprap could extend to the adjacent seawall and gradually extend in a more landward direc- tion to prevent excessive elimination of the littoral zone vegetation. Whatever alternative the applicant elects to choose, the removal or elimination of littoral zone vegetation must be offset in the form of mitigation if the impacts can not be reduced any further. Finally, the agent should eliminate the use of generic drawings which must be continually revised. All drawings should reflect the existing and proposed conditions and the impacts associated with the project. Petitioner's contractor, Andy Harris, testified to other alternatives that could be used by Petitioner in constructing her seawall, but the evidence of Mr. Medellin and Ms. Bess is persuasive that the alternative measures proposed by Mr. Harris would not provide the reasonable assurances the law requires DER to obtain from Petitioner.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order affirming its July 19, 1990 Notice of Permit Denial. RECOMMENDED this 25th day of April, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 25th day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7215 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's letter to Hearing Officer (filed March 22, 1991) The first paragraph complains that a VCR was unavailable in the hearing room so that Petitioner's videotape could not be shown. Petitioner should have made arrangements for showing the tape and did not. Likewise, Petitioner never offered the tape in evidence (for viewing by the Hearing Officer afterwards in preparation of this Recommended Order). Therefore, it very properly was not considered. The next 3 paragraphs refer to the Casden letter (DER Exhibit 6), which is covered in FOF 8-9. The remaining paragraphs are rhetoric and legal argument upon which no ruling need to made under Section 120.59(2) F.S.; however, they are alluded to in the Conclusions of Law. Petitioner's letter to DER Counsel (filed March 25, 1991 by DER, suggesting it was Petitioner's proposed findings of fact) 1-3 For the reasons set out above, the Petitioner's videotape was not considered. The subject of erosion to the degree proved at the hearing is covered in the Recommended Order. 4-5, PS 1-3 Mere rhetoric and legal argument upon which no ruling need be made under Section 120.59(2) F.S.; covered in the Conclusions of Law to the degree appropriate. Respondent's PFOF: 1-11 Accepted as modified to reflect the greater weight of the credible and probative record evidence as a whole. That which is rejected is rejected as not proven or not persuasive. Unnecessary or irrelevant material has likewise been excluded. COPIES FURNISHED: Douglas MacLaughlin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kathryn Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Emmett and Martha Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue for consideration in this case is whether the Respondent's license as a certified general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Construction Industry Licensing Board was the state agency responsible for the licensing and regulation of construction contractors in this state. Respondent, Frank W. Miller, was licensed as a certified general contractor in Florida under License No. CG C036176. On June 2, 1988, Lots of Casey Key, Inc., a group of investors and contractors, including the Respondent, purchased the land in question located in Sarasota County, Florida. On June 26, 1988, the group hired an environmentalist from a list provided by the county, who evaluated the property with a view toward development. The developers also hired a surveyor and an engineer to get the proper permits for the development. They also published all required notices and acquired at least some of the required permits for the initial stage of the development. This consisted of the construction of a fishing pier extending from the property into Sarasota Bay. This permit was taken out by the Respondent. The Respondent and his associates also contacted Robert B. Patten, an environmental consultant, with a view toward having the eight acres in question rezoned so that houses could be built on it. After examining the property, however, Mr. Patten advised Respondent there were so many protected mangroves on the property, both state and local permits would be required and he, Patten, was not interested in the job. He suggested that Respondent hire an attorney to insure the proper permits were obtained. Respondent claims that in January of 1989, he took his site drawing for the proposed development to the county natural resources office headed by Mr. McCarthy, told him what was planned at the property, and secured his approval. Mr. McCarthy was not called as a witness, and all the appropriate permits were not offered, so at most it can be found that McCarthy approved the concept of the activity in principle. At approximately this same time, the environmentalist the group hired to insure compliance with the environmental requirements purportedly also assured them that the proposal was environmentally sound and properly permitted. It is accepted that he did. As a result, the group acquired the state and county permit for the pier and, in addition, a permit to clear the uplands. They also procured a permit from the Southwest Florida Water Management District and the appropriate agency governing the construction and installation of utilities. In addition, the Respondent procured a permit allowing construction of a boardwalk and a seawall. He did not, however, procure the appropriate permit to allow him to cut, trim, or top mangroves in the numbers shown here. The group hired Southern Landscaping to do all the land work under a contract which called for all mangrove trimming to be done in accordance with the Division of Natural Resources rules This company, which was the low bidder in the procurement process, was relied on to trim the mangroves in accordance with the law and before beginning work, showed how the trees would be trimmed. It appeared to Respondent at this time that the work was being and would be done properly. On March 10, 1989, Belinda S. Perry, an employee of the county's Natural Resources Department, was out on Casey Key and observed that at the Respondent's work site clearing work was being done. She questioned the permitability of this work. She also observed that the mangroves on the north side of the property had been improperly cut, and she asked her associate, Mr. McCarthy, to check it out. He did and thereafter, on March 14, 1989, Respondent came to the office with a copy of his state-issued permit. After analyzing the permit and comparing the work done with the terms thereof, Ms. Perry and Mr. McCarthy advised Respondent it appeared his work was in excess of the limits imposed by his permit and that they would have to notify state authorities and get back to him. At that time, Respondent was cooperative and indicated he wanted to get the proper authorization. As a result, Ms. Perry contacted Ms. Toledo, of the Department of Environmental Regulation, discussed the possible violation with her, and arranged to visit the site with her on March 20, 1989. When they did, Ms. Perry again observed the cutting on the North side of the property in addition to which there was a corridor which had been cut to the east (water) side of the property heading toward the bay. At that point, they contacted Mr. McClintock, the forester, who examined the Respondent's permit. When he saw it permitted only the relocation of 20 palm trees and made no mention of or gave no approval of cutting or trimming of mangroves, he authorized the issuance of a stop work order on March 20, 1989. Ms. Perry and Ms. Toledo, pursuant to the terms of that order, served a copy on Mr. Miller and advised him he was in violation of both state and county regulations and should discontinue the work at the site. Ms. Toledo recalls that when she visited the site on March 20, 1989, she observed much the same situation as described by Ms. Perry. She also recognizes that one of Respondent's permits allowed the moving of palms, and he also had one for the construction of a fishing pier. As a part of this second permit, Respondent was allowed to cut mangroves. Nonetheless, she noted on her visit that in the area to the left of the pathway, many more mangroves had been cut than were allowed by the permit. This cutting was in the form of trimming in excess of any exemption criteria outlined in Rule 17-27.060, F.A.C., (17- 321.060), which allows trimming by a property owner without a permit, but of no more than 25 % of the lateral branches. The red mangroves on the property had been topped which is totally prohibited, and the trimming of the remaining white and black mangroves was to an extent in excess of the permitted 25%. At that time, Mr. Miller indicated to Ms. Toledo that he was the general contractor in charge of the site, and the workers doing the actual trimming were operating under his direction. This is corroborated by the testimony of Mr. Boatright, one of the trimmers, who indicates much the same. At that time, in Ms. Toledo's opinion, Mr. Miller was uncooperative and aggressive and as a result, on March 31, 1989, she drafted a warning notice which was issued on April 3, 1989. On that latter date, Ms. Toledo again went to the site and saw that additional and different mangroves had been trimmed in excess of the exemption criteria mentioned above. Thereafter, on April 7, 1989, she had a telephone conversation with the Respondent during which she advised him that the Department of Environmental Regulation intended to file criminal and civil charges against Lots of Casey Key, Inc. because of the violations described. At that time, Respondent expressed his regret that the situation had happened. As a result of the visits by Ms. Toledo and Ms. Perry, in late March or early April, 1989, Steven T. Cooley, environmental prosecutor for the 15th Judicial Circuit of Florida, was notified through the Sarasota County Sheriff's Department and Division of Natural Resources that there was significant damage to a mangrove forest at Lots of Casey Key. Mr. Cooley conducted an extensive investigation into the matter and caused a collateral criminal investigation to be conducted as well, and as a result of these inquiries, decided to file criminal charges against Mr. Miller and a co-defendant, Mr. Burke. This decision was based on the investigation which revealed that the county's tree protection ordinance, Ordinance 83-44, which included mangroves among the protected species, had been violated. It appeared that Respondent and Mr. Burke had hired subcontractors who committed a significant cutting, (trimming, topping and stumping) of more than 2000 mature trees. The Respondent and Burke were contacted by code enforcement people, (Perry and Toledo), and advised to stop. Nonetheless, additional damage was done after the notice to stop and a Stop Order was thereafter issued. Respondent had a permit to cut mangroves in a corridor area out to the fishing pier, but the actual cutting far exceeded the terms of the permit. The first cutting was a thinning out of mangroves around Casey Key, which, in itself, was a violation, and even after the Respondent was informed he was in violation, he improperly cut more trees. Not all trees were cut down to the ground, but many of those which were illegally trimmed were trimmed to a point where the tree would ultimately die. This was verified by county tree experts. Mr. Cooley filed criminal charges against the Respondent rather than the actual workers who did the cutting because, in his opinion and as a result of his investigation, the workers were merely agents working under the direction of the Respondent. Mr. Miller originally pleaded Not Guilty to the charges against him but subsequently, on June 25, 1990, changed his plea to Guilty. At a sentencing hearing held in December, 1990, adjudication of guilt was withheld, and Mr. Miller was fined a total of $15,000.00; ordered to perform 500 hours of public service, and ordered to spend 10 weekends on the road gang. In addition to the criminal charges, a civil suit was filed by the county against Lots of Casey Key, Inc., to prevent additional cutting of mangroves. By stipulation, a temporary injunction was entered. Trial on the permanent injunction had not been held at time of hearing. According to Mr. McClintock, a sampling taken on March 22, 1989, after the stop work order was approved, showed approximately 2175 mangrove trees had been severely cut on the northern side of the property and between 75 and 100 cut down to the ground in the corridor on which the pathway to the fishing pier was to be constructed. This accounted for a total of 2275 trees. When he went back to the property on March 30, 1989, after the stop work order had been issued, McClintock observed that while cutting was no longer in progress, an additional cutting had taken place, and he counted approximately 78 additional trees which had been destroyed. He later verified that additional trees were cut in the corridor area as well. Taken together, a total of approximately 2350 trees were improperly cut in violation of the state and county codes protecting mangroves. This destruction is the largest in the recollection of Norman C. Easey, the Director of the county's forestry division, and it constituted a serious impact on what was then the largest single mangrove stand in the southern part of Sarasota County. Respondent does not deny that the trees were cut. He notes, however, that after Ms. Perry first came out and advised him of the possibility he was in violation, he agreed not to cut further and in fact, tried to cooperate. He met with his associates who encouraged him to nonetheless continue the cutting even though he advised against it. Ultimately he was able to convince them. An associate, Norman Sharrit, the architect for the project, recalls that Respondent spontaneously exclaimed to him that Burke and Jaffe, the other partners, directed the additional cutting after the stop work order was issued. Nonetheless, after securing his associates' agreement to suspend any cutting, Respondent attempted to contact the trimmers, Southern Landscaping, to advise them to stop work but claims he could never find anyone on site. In this claim, he is supported by Davis Baker, an adjacent retired homeowner, who, in observing the clearing process on a daily basis, noticed that the cutters kept very irregular hours and were gone as often as not. Respondent also claims he left word for the cutters to stop on the company's answering machine but the work continued. It is this additional work, after Respondent's efforts to get the work stopped, that constituted the additional cutting charged. Respondent also claims that the additional trees near the walkway were cut as activity beyond the scope of the contract which he had entered into with the landscape company. Mr. Miller also contends that the work was not done under his license because he was not an owner of Casey Key Estates. The owners of that company, the parent company for development, were Mr. Burke and Mr. Jaffe. He was, however, the Secretary of the corporation, but claims he did not have complete control as to who did what and where. He claims he was not a stockholder in the company and had no ownership in the operation. Under the terms of his agreement with the owners, he was to get a percentage of the profits when the development was completed. As of the date of the hearing, he has received nothing in the way of remuneration. Except for the claim that the work was not done under his license, it is so found. He also claims that in the instant case he was not acting as a contractor for the project. His reasoning here is not supported by the facts. His relationship with the other developers was based on the fact that he obtained the option to purchase the land; he was to put in the utilities; and he was to build the homes and construct the walk over to the beach and the seawall. He also was the one who obtained all permits and who entered into the contract for trimming with Southern Landscaping. It is found, therefore, that he was, in fact, the general contractor for this project and ultimately responsible for all actions taken under his certificate. Mr. Miller cites in his defense that as he understands the law, mangroves can be trimmed without a permit between October and March, up to 25% of the lateral growth, and in his opinion, the trimming did not constitute more than that allowable 25%. This is clearly not so, as evaluation of the Petitioner's photographs, taken near the time in question, which Respondent agrees fairly represents the site at the time, clearly indicates that more than 25% of the lateral growth of the trees' foliage was taken off. It should be noted, however, that a photograph taken some substantial time after the cutting shows that the trimmed area is filling in again and the trees are not dead. This does not mean there was no damage, however. Mr. Easely, the Director of Forestry, whose expertise indicates a reliable opinion, opined that the mangroves are not as healthy as they should be. Once cut, they are going through a period of shock and are branching out from reserve buds developed by the tree for emergency situations such as fire and damage. The tree, once in this condition, has a much shorter life span. Though new trees may, and probably will come in, there is a loss of habitat in the a rea as a result of the trimming, of some 30 to 40 years. In any case, minimization of damage does not excuse or justify prohibited trimming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frank W. Miller's certification as a General contractor be suspended for three years, with the execution of the last two years of the suspension stayed under such terms and conditions as prescribed by the Construction Industry Licensing Board, and that he pay an administrative fine of $5,000.00. RECOMMENDED this 8th day of April, 1991, 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 8th day of April, 1991. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Frank W. Miller 20 Dover Drive Englewood, Florida 34223 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact This dispute involves the construction of a dock from the uplands into Lake-Walk-In-The-Water near Lake Wales, Florida. Lake-Walk-In-The-Water Heights Subdivison consists of a platted subdivision of lots along Lake-Walk-In-The-Water. In addition to those lots fronting on the lake, the plat includes 25 additional lots across the street (Chambers) which runs alongside the western edge of the lots fronting on the lake. To provide them access to the lake, those 25 lot owners received with the purchase of their lots an undivided l/25th ownership of Lot 35A, a 68.78 feet wide lot running from Chambers Street some 350 feet eastward to the lake. Rapley Armstrong owns two of the 25 lots above referred to. He is the pastor at Castle Heights Baptist Church in Tampa where his permanent residence is located. He vacations at his property near Lake-Walk-In-The-Water. Jack Hardin is a retired airline pilot who lives on or near Lake-Walk-In-The-Water. Hardin owns Lot 35 which abuts Lot 35A to the south, and, with his wife, one of the 25 lots on Chambers Street. The residence on Lot 35 is occupied by a tenant of Hardin's. Several years ago Hardin constructed a small dock near the intersection of Lots 35 and 35A which provided access to the lake. He subsequently removed this dock. Several of the lot owners of the 25 lots on the west side of Chambers Street conceived the idea of erecting a dock from Lot 35A into the lake to provide them access and ,elected Armstrong treasurer to collect money for the materials needed. Armstrong allowed the cost of the materials to be charged to his credit card and, as a community project, the dock was built in one day by some 8 or 10 men including Hardin's tenant of Lot 35. After the dock was completed, Armstrong started to call the owners of the 25 lots to obtain their contribution of $110 each for the cost of the materials used to construct the dock. His first call was to Hardin who became very angry because he had not been consulted before the dock was built. This conversation was sufficiently upsetting to Armstrong that he did not call any of the other lot owners. By letter dated July 30, 1985 (Exhibit 1), Hardin complained to the Department of Natural Resources that Armstrong had constructed a dock which crossed into the riparian line of Lot 35 and sent with his letter photographs of the dock (Exhibit 2) and a plat (Exhibit 3) with the dock drawn in free-hand. Following a preliminary investigation by J. Gordon Roberts, an investigator with DNR, the Department sent Exhibit 4 to Armstrong advising him that the dock encroached into the riparian line of Lot 35 and directing him to remove the dock. Armstrong then filed the Petition which initiated these proceedings. In January 1985, Respondent conducted a survey to locate the dock with respect to the riparian rights line of Lot This survey established the riparian rights line between Lots 35 and 35A and showed the dock to have been constructed within the riparian rights line of Lot 35A and within 25 feet of that line. This places the dock within the setback zone established by Rule 16Q-21.04(3)(d), Florida Administrative code. While the survey was being conducted, DNR personnel met with Hardin and the owners of the lots who erected the dock to try and work out a compromise. During these meetings, Armstrong agreed to allow Hardin to remove the dock if he so desired but contended he did not own the dock or the land from which the dock started towards the water. Armstrong, with the other owners, agreed to remove the T-portion of the dock that extended into the riparian rights line of Lot 35 and to place a railing along the south side of the dock to deter people from encroaching on Lot 35 from the dock. While the owners were performing this work, Hardin came to the site and demanded they cease doing any work on the dock as the dock had to be removed and relocated. At this juncture those owners not parties to this action apparently decided they would no longer cooperate with Hardin and refused to grant permission for Hardin or anyone else to remove their property. Absent the consent of the other owners, Petitioner is without authority to remove this dock. Lake-Walk-In-The-Water is a large shallow lake some 7 miles by 8 miles in area and is a meandered lake.
Findings Of Fact The Department is the state agency charged with the responsibility of enforcing Chapter 253, Florida Statutes on behalf of the Board of Trustees of the Internal Improvement Trust Fund (Board). The Board holds title to submerged sovereign lands pursuant to Sections 253.03 and 253.12, Florida Statutes, and Article X, Section 11, Florida Constitution. Fraraccio, together with his wife, owns a parcel of real property located in section 13, township 38 south, range 41 east which is commonly known as 26 High Point Road and which is located in Martin County, Florida. The southern boundary of the Fraraccio's property (subject property) borders the St. Lucie and Indian Rivers. In June, 1987, Fraraccio filed an application for permission to alter mangroves which grow along the shoreline of the subject property. It was Fraraccio's intention to cut the tops of the trees in order to promote horizontal growth. This application was filed with and processed by the Department of Environmental Regulation (DER). On September 1, 1987, DER issued a permit for the mangrove alteration. Pertinent to this proceeding is the following specific condition of the Fraraccio permit: 4. "No person shall commence mangrove alteration or other activity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use. Pursuant to Florida Administrative Code Rule 16Q-14, if such work is done without consent, or if a person otherwise damages state land or products of state land, the Board of Trustees may levy administrative fines of up to $10,000 per offense. In October, 1987, the Department's Bureau of Survey and Mapping was asked to survey the west line of the Jensen Beach to Jupiter Inlet Aquatic Preserve (Preserve) at the confluence of the St. Lucie River. Terry Wilkinson, chief surveyor for the bureau, conducted the field survey on October 14-16, 1987. Mr. Wilkinson placed a metal rebar with a cap designating "D.N.R." at a point on the mean high water (MHW) line at the Fraraccio's property. Mr. Wilkinson also staked three points with lathe markers on a line northerly along the MHW line from the rebar monument. It was Mr. Wilkinson's opinion that the Preserve abutted the Fraraccio property from the point marked by the rebar monument northward along the coast. That portion of the Fraraccio property which was south and west of the rebar did not abut the Preserve. Fraraccio disputed the findings regarding the Preserve boundary reached by Wilkinson and did not concede that his property abuts the Preserve. On December 15, 1987, the issue of the Preserve boundary was taken before the Governor and Cabinet sitting as the Board at the request of the Department, Division of State Lands. Fraraccio was represented before the Board by counsel who argued against the staff recommendation. Mr. Wilkinson's interpretation of the boundary line for the Preserve was approved. That area waterward of the MHW line from the rebar monument northerly along the Fraraccio shoreline was, therefore, deemed to be part of the Preserve and sovereign submerged land. Prior to cutting any mangrove trees, Fraraccio telephoned Casey Fitzgerald, chief of the Department's Bureau of State Lands Management, to inquire as to whether Department permission was required to trim mangroves located above the MHW line. Fitzgerald's letter advised Fraraccio "that trimming mangroves located above the MHW line would not be within the purview of this department." Fitzgerald further recommended that Fraraccio "employ the services of a registered land surveyor to specifically identify the individual trees which are so located." Fraraccio did not obtain an independent survey. Instead, he relied upon the rebar monument and the lathe markers placed by Wilkinson, and contracted to have the mangroves landward of that line trimmed. One of difficulties encountered in determining the location of a mangrove in relation to the MHW line is the fact that one tree may have several trunks and prop roots which emanate from the center of the tree. Consequently, there is some uncertainty regarding how to locate the tree. One method used locates the centermost trunk and considers that point the tree location. Another method calculates the greatest percentage of tree mass and considers that point the center of the tree. This calculated center is then matched against the MHW line. Either method results in a judgment based upon visual inspection. This judgment may differ among reasonable men. In January, 1988, Fraraccio supervised the cutting of mangroves based upon the MHW line as established by the Wilkinson survey. Fraraccio did not intend to cut trees waterward of the MHW line. No trees were cut waterward of the Wilkinson line. A number of trees were trimmed landward of the Wilkinson line. There is no evidence that either the rebar monument or the lathe markers placed by Wilkinson were moved either prior to or after the mangrove alteration. Fraraccio was responsible for the direct supervision of the workmen who completed the mangrove trim. No work was done without Fraraccio's authorization. On March 22, 1988, Kalani Cairns, inspected the Fraraccio property. Cairns took field notes of the inspection. One of comments made at that time was that it was "difficult to determine if MHWL stakes have been moved." Based upon his review of the area, Cairns determined approximately 20 mangrove trees below the MHW line had been topped. Subsequently, the Department issued the Notice of Violation and Order for corrective action. Since Fraraccio did not believe he had cut waterward of the MHW line, no corrective measures were taken. Subsequent to the Notice, additional mangroves were not cut. Fraraccio timely sought review of the notice. In preparation for the formal hearing in this cause, the Department contracted with Greg Fleming to prepare a survey of a portion of the Fraraccio property. The purpose of this second survey was to locate the MHW line along the Fraraccio shoreline and to plot mangrove trees which had been trimmed and which were waterward of the line. Approximately 24 trimmed mangrove trees were located waterward of the MHW line as determined by the Fleming survey. The Fleming survey resulted in a MHW line which was upland of the line established by the Wilkinson survey. The trimmed trees in dispute are located between the two lines, as marked on the ground, by the lathes placed by the two surveyors. Mr. Wilkinson did not testify and no credible explanation was given for why the lines, as marked in the field, differ. At the time of the cutting, however Fraraccio believed the Wilkinson lathes marked the MHW line. This belief was based upon the representations that the Department had made regarding the rebar monument marked "D.N.R." and the fact that the placement of the lathe stakes had coincided with placement of the rebar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a final order dismissing the Notice of Violation against Charles A. Fraraccio. DONE and ENTERED this 23rd day of June, 1989, in Tallahassee, Florida. JOYOUS D. PARRISH 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 23rd day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4309 Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1 through 5 are accepted. With regard to paragraph 6, it is accepted Wilkinson put down three lathes and that there is no evidence that those lathes were moved. Otherwise, the paragraph is rejected. Mr. Wilkinson did not testify and, therefore, no evidence was presented on the issue of the lathes. It is clear Fraraccio believed the lathes to be the MHW line. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the weight of the evidence. The MHW line was correctly depicted on the ground and on paper by the Fleming survey which was done after-the-fact. Pertinent to this case is the fact that Fraraccio and DNR treated the Wilkinson survey on the ground (as shown by-the rebar and the three lathes) as the MHW line prior to the cutting. Paragraph 9 is accepted. With regard to paragraph 10, the record shows Fleming was contacted to perform the second survey in December, 1988, and that it was dated February, 1989. With that modification and clarification, paragraph 10, in substance, is accepted. Paragraph 11 is accepted to the extent that the two surveys differed on the ground (as opposed to on paper). Paragraphs 12, 13, and 14 accepted but are irrelevant. With regard to paragraph 15, it is accepted that the workmen were instructed not to cut waterward of the MHW line. The remainder is irrelevant to this proceeding. Paragraphs 16 through 18 are accepted. With regard to paragraph 10, it is accepted Fraraccio cut or trimmed the trees based upon the Wilkinson survey as depicted by the rebar and 3 lathe markers. Otherwise, paragraph 19, is rejected as irrelevant. Paragraph 20 is accepted. Paragraph 21 is rejected as irrelevant to this proceeding. Rulings on the proposed findings of fact submitted by the Department. Paragraphs 1 through 16 are accepted. The first sentence of paragraph 17 is accepted since both surveys coincided at the point of the rebar marked "D.N.R.;" otherwise, the paragraph is rejected as contrary to the weight of evidence since the surveys differed as plotted on the ground. Paragraphs 18 and 19 are accepted. Paragraph 20 is rejected as irrelevant. Paragraph 21 is accepted. Paragraph 22 is rejected as contrary to the weight of the credible evidence. Paragraph 23 is rejected as irrelevant. The number of trees cut waterward of the MHW line as established by the Fleming survey was approximately The size of the trees is irrelevant. Paragraph 24 is rejected as irrelevant. Paragraphs 25 and 26 are accepted. Paragraph 27 is rejected as irrelevant to this proceeding. COPIES FURNISHED: William L. Contole McManus, Wiitala & Contole, P.A. O. Box 14125 North Palm Beach, Florida 33408 Ross S. Burnaman Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue Whether Petitioner is entitled to a consent to use sovereign submerged lands.
Findings Of Fact MBRRC filed an application for an environmental resource permit and authorization to use sovereign submerged lands located in the Biscayne Bay Aquatic Preserve (BBAP). This application sought approval to construct two finger piers and to install twelve mooring pilings for the benefit of a private yacht club. The application was filed with the Department for review on October 20, 1995. The Petitioner’s property is located on Hibiscus Island, a man-made island within the BBAP, and is accessed by boat. The island is primarily used for residential purposes. Petitioner’s facility is the only commercial docking facility on the island. Petitioner owns approximately 140 feet along the waterfront with its property line extending 20 feet seaward of the upland property. It has an existing dock which is approximately 10 feet wide that runs the length of, and parallel to, the seawall along its waterfront. The proposed finger piers would extend waterward and perpendicular to the existing dock from its ends. This extension proposes to use approximately 16 feet into the sovereign submerged land at the ends and would also allow the installation of 12 mooring pilings between the piers. The ultimate purpose of the installation is to allow perpendicular docking. At all times material to this case the Department has considered the proposed construction to be a new facility subject to the requirements of Section 258.397(3)(a), Florida Statutes, and Rule 18-18.006(3), Florida Administrative Code. No existing structures at the site would qualify the applicant for the type of lease proposed. The Petitioner annually hosts numerous fishing and social events at its club facility. Participants typically “raft” vessels together in order to gain access to the shore. Historically this process has moored vessels parallel to the existing dock/seawall. This “rafting” would not necessarily be eliminated by the addition of the proposed finger piers. Petitioner seeks to expand the docking facility as requested in order to provide better ingress and egress to its property. It contends that fishing and boating in the BBAP will be enhanced by such improvements. Petitioner maintains its property is being treated differently than others; however, policies used by the Department in this instance are applicable to all areas of the BBAP. By letter dated February 6, 1996, the Department advised the Petitioner that staff would recommend denial of the application. That letter advised Petitioner of the “extreme hardship” test found in Rule 18-18.006(3), Florida Administrative Code as well as Section 258.397(3)(a), Florida Statutes. The letter noted that this standard was “at best very difficult to demonstrate” and advised Petitioner of the “public interest” requirement also set forth by rule and statute. “Self-imposed circumstances” as used in the applicable rule has been construed to include circumstances where the applicant seeks to improve existing boat access, to increase the number of docking slips, and to enhance the upland property. The Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) has determined that the construction of single-family docks meets the “extreme hardship” test because single-family docks are considered to be the lowest impact use available on sovereign submerged land. It is deemed appropriate to allow a qualified right of ingress and egress to the upland owner. The Petitioner’s proposal is not a public project or a public necessity. Petitioner currently has ingress and egress to its upland property. The Petitioner’s property is a nonconforming use in a residential area. The term “property owners in the area” has been construed to mean the BBAP. The proposed project is not unique to the applicant, and the burden to the applicant is shared by other property owners in the BBAP. The proposed project would provide additional access to an upland property owner who already has boat access to the waterway. Neither the project site nor the island on which it is located are unique as other properties of a similar nature are within the BBAP. In order to establish that a proposed project is “in the public interest,” applicants are required to demonstrate that the activity would improve either public recreation, water quality, fish hatcheries, or other matters of public interest. In this instance, Petitioner did not submit a written proposal to support the public interest requirement during the application process. Consequently, DEP has not assessed such proposal for its quantity or quality. Petitioner relies on its improved boating access to support a claim of enhancement to public recreation. As to water quality, fish hatcheries, or other matters of public interest, the proposed project would adversely affect seagrasses and other environmental resources by shading. Although the installation of mooring pilings would provide some environmental benefit, those benefits would not be quantifiable and would be offset by increased shading from the project. Other proposals submitted by Petitioner incidental to its Dade County permit application are insufficient in detail and scope to show the public interest requirement would be met. The proposed project is located in an area that is intermediate between the most sensitive and least sensitive sites, for the purpose of manatee protection. The proposed project would have an adverse environmental impact on manatee protection since it creates additional docking slips and additional boat traffic. The proposed project would result in environmental costs through the loss of resources and increased turbidity. The proposed project would provide no quantifiable economic benefit to the public, but would provide some economic cost in the loss of habitat and food source for fisheries. The proposed project would provide no social benefits different from those presently provided by the existing facility. The benefit of the proposed project is merely enhancement of the Petitioner’s current use at a cost of lost fisheries, increased danger to manatees, and increased turbidity.
Recommendation Based on the foregoing, RECOMMENDED: That the Department of Environmental Protection enter a final order denying Petitioner’s request for authorization to lease sovereign submerged land. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31st day of March 1997. J. D. PARRISH 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 31st day of March 1997. COPIES FURNISHED: Stephen E. Tunstall, Esquire Stephen E. Tunstall, P.A. 2701 Southwest LeJeune Road Suite 410 Coral Gables, Florida 33134 Jeffrey Brown, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
