Findings Of Fact General. The Westwood permit modification contemplated a series of improvements, not only in its own system, but also to Canoe Creek's surface water management system. These improvements were designed to take into account the previously unknown surface water flows from the 56 acres to the west of Westwood. A special condition of the Westwood permit modification was that Canoe Creek's permit and surface water management system be modified to incorporate changes to accept these additional water flows. The District issued its Administrative Complaint and Order/Notice Of Intended Modification of the Canoe Creek permit, which initiated this case, on February 2, 1990, in an effort to force the incorporation of specific improvements of Canoe Creek's surface water management system to fully integrate it into the area-wide system. Although the procedural contexts of the two cases are different, from an engineering point of view, the same issues are raised in this proceeding by the District to require Canoe Creek to modify its surface water management system as were raised in the earlier proceeding in which Westwood sought, and Canoe Creek opposed, modification of the Westwood surface water management permit so that Westwood's system would accommodate off-site flows. The seven specific modifications proposed for Canoe Creek are: Station 0+00 (southern entrance road): Replace the existing 24 inch diameter CMP culvert with two 30 inch diameter CMP culverts. Station 7+69 (main entrance road): Replace the existing 24 inch X 34 inch CMP Arch culvert with two 24 inch X 35 inch CMP Arch culverts. If the existing 24 inch X 34 inch Arch culvert is in good condition, only one 24 inch X 35 inch CMP Arch culvert will be added at this location. Station 13+00 (outfall structure): Verify that the existing structure was built as designed and then increase the weir length to 6.1 feet at crest elevation 10.25 feet NGVD. The top of this weir structure should also be increased to elevation 20.0 feet NGVD. Station 13+00 to 14+78 (east-west swale): Regrade the swale bottom to remove all high point greater than elevation 8.25 feet NGVD. Station 14+78 (internal road): Replace existing 24 inch X 34 inch CMP Arch culvert with two 24 inch X 35 inch CMP Arch culverts and lower the invert elevation to 8.25 feet NGVD. If the existing 24 inch X 34 inch CMP Arch culvert is in good condition, only one 24 inch X 35 inch CMP Arch culvert will be added at this location. Station 15+23 to 19+29 (east-west swale): Regrade swale bottom starting at elevation 8.25 feet NGVD at station 15+23 and ending with elevation 8.5 feet NGVD at station 19+29. Station 19+29 (weir structure): Increase the existing weir length to the permitted weir length of 5.0 feet at the existing weir crest elevation 10.14 feet NGVD. The Westwood Permit. Historical Background. As noted above, Westwood is an 82.1 acre residential development. It is located in northern Martin County, west of Stuart, Florida, and east of the Florida Turnpike. It is immediately west of Canoe Creek, an older 86.5 acre subdivision of single family homes. Both projects share a common property boundary, and both historically drain into Bessey Creek. Bessey Creek in turn drains into Canal 23 (C-23) which is a work of the District. Canal C-23 is the dominant drainage feature in the area. Development throughout the Bessey Creek watershed has altered historic sheet flow, and directed that flow to point discharges in the various developments. The District issued its Construction and Operation Permit 43-00155-S to Mr. Gordon Nelson on February 14, 1980, for the construction of the residential development which became Westwood. Westwood's surface water management system used grassed swales, catch basins, storm sewers, and natural wetland areas to contain surface waters, which were then directed through one 4-foot weir at elevation 10.75 feet NGVD with a V-notch bleeder set at 9.75 feet NGVD, draining into a 25-foot wide drainage easement and ditch which was part of the Canoe Creek surface water management system. The original permit was reissued to Tall Pines Finance Corporation on July 8, 1982, and included a system of catch basins, one 24 inch by 440 lineal foot CMP equalizing culvert, one 5.33 foot wide weir at elevation 12.2 feet NGVD, one 25 foot wide drainage ditch, and one 42 inch by 40 lineal foot CMP culvert and one 29 inch by 40 lineal foot CMP culvert. The permit was modified on April 14, 1983, to permit Westwood to discharge through a narrower 4-foot wide weir with a crest elevation of 12.1 feet NGVD and two 6-inch diameter circular PVC bleeders, with inverts at elevation 11.5 feet NGVD. Final discharge remained into Canal C-23 via Bessey Creek and the Canoe Creek surface water management system. The Westwood permit was modified for a third time on June 9, 1983, to include about 4.15 acres of off-site flows coming into the Westwood surface water management system. Westwood's fourth application to modify its surface water management permit was filed on October 14, 1988, in response to a Notice of Violation which the District had served on it on August 26, 1988. The unauthorized discharge of stormwater from the southern boundary of Westwood occurred after a heavy storm and resulted in adverse impacts, i.e., shoaling in Bessey Creek. This unauthorized discharge occurred when the surface water management improvements on the Westwood site were only partially complete. The berm around the property perimeter then was about five feet high, was unsodded and unstable. Operation. The breach in the berm on Westwood's southern perimeter was partially caused because Westwood was receiving surface waters from a 56 acre parcel which adjoins Westwood on its western boundary, and that sheet flow had not been included in the original calculations for Westwood's own surface water management system or that of Canoe Creek. The other cause was the incorrect elevation of the control structure on the Westwood/Canoe Creek boundary described in the next finding. Water built up on that 56 acre parcel. It first caused a separate breach in the western perimeter berm of Westwood, and the additional volume of water entering Westwood overloaded Westwood's system, and in turn caused the breach on the south of Westwood's property, resulting in the unauthorized discharge into Bessey Creek. After investigation, Westwood's consulting engineer also found that the outfall structure for the Westwood system had been installed too high, and therefore was not operating correctly. One of the internal pipes had been constructed three tenths of one foot too low, which permitted water to flow in the opposite direction than it had been designed for, which impeded the operation of the system and caused water to back up on the Westwood property. That construction deficiency in the Westwood system has been corrected. Relation with Canoe Creek Subdivision. The available topographic information shows that, in general, the historic natural flow of water over the entire area in issue moves in an easterly and southeasterly direction. This has been recognized to some extent in the surface water management permits issued to both the Canoe Creek and Westwood projects, for their surface water management systems were permitted as integrated systems. The Westwood permit in effect since 1980 authorizes a peak discharge of 21 cubic feet of water per second (CFS) through the weir structure at the subdivisions' common boundary, which is consistent with criteria applicable to the entire C-23 basin. The system is a cascading one, from the 56 acre parcel, through Westwood to Canoe Creek. Water ultimately flows through the Canoe Creek surface water management system down a swale into the Canoe Creek Lake, and from there easterly to a ditch along side West Murphy Road, and then flows south into Bessey Creek. A perpetual easement for drainage and utility purposes had been granted by the developer of Canoe Creek Subdivision, Dean Development, to Westwood's predecessor-in-title on December 17, 1979. The easement covers the 20-foot by a 485-foot swale from the Westwood discharge structure at Canoe Creek's western boundary extending easterly into the Canoe Creek Lake. Relationship with Crane Creek and Bessey Creek. There are other streams in the area which also drain into Canal C-23, such as Crane Creek which is to the south of Westwood. The District has never authorized discharges of water from the Westwood or Canoe Creek areas south into Crane Creek. Proposed modification. Westwood's application to modify its own permit was largely based on the backwater analysis of Westwood's consulting engineer, which calculates the effect of maximum design loadings or flows on the system. That analysis showed that improvements were required both to the Westwood and Canoe Creek surface water management systems to take into account the increased volume of water which was flowing into the Westwood system from the 56 acres beyond the Westwood property. His suggested modifications include raising by six inches the catch basin at the western boundary of Westwood, which intercepts the flow from the tributary 56 acres, in order to impound more water off-site. The second modification was that the crest of the outfall structure from the Westwood subdivision into Canoe Creek be lowered from 12.1 feet NGVD to 11.8 feet NGVD, that the bleeders be lowered from 11.5 feet NGVD to 11.3 feet NGVD and that four (4) bleeders be used. This would alleviate one of the problems that contributed to the breach in the south perimeter berm. The peak discharge from the 56 acres to Westwood during a design storm event would be 3.4 cubic feet per second. The Canoe Creek system also requires modifications. These include the installation of additional culverts under the subdivision's entrance road and West Murphy road, regrading the swales running from the Canoe Creek Lake to lower their cross-section and improve their water carrying capacity, and widening of the weir to 6.1 feet. This would allow the integrated Westwood and Canoe Creek systems a peak discharge rate of 21.3 CFS each during a 10-year/72- hour design storm event. The peak discharge from the entire drainage area of 223.7 acres is about 34 CFS, not the combined peak dicharges from both systems of 42.6 CFS. (See, T. 680). This occurs because the Canoe Creek system will not reach its peak discharge at the same time the Westwood system reaches its own peak. The Canoe Creek system reaches its peak well before the 21 CFS peak flow from the Westwood system arrives. The entire system will retain a portion of the design storm rainfall and runoff. This is due to predischarge detention on each site, and the design of the swales and lakes on both properties. Canoe Creek Permit. History of the Permit. The District construction and operation permit for the Canoe Creek Subdivision, 43-00135-S was issued for phase 1 (48.3 acres) on June 7, 1979. Its discharge was to occur through two 3.5-foot wide weirs with crest elevations of 10.15 feet NGVD, and V-notches with invert elevations at 9.0 feet NGVD. The ultimate discharge was to be into Canal 23, via Bessey Creek and a drainage ditch. Special Condition 4 of the permit is that operation of the Canoe Creek surface water management system "will be the responsibility of Canoe Creek Homeowner's Association." The Canoe Creek permit was modified on August 6, 1981, to include another 37.3 acres, which was phase 2 of the Canoe Creek Subdivision. The control structure was modified to be one 5-foot wide weir with a crest elevation of 10.25 feet NGVD and one 40 degree V-notch with an invert elevation at 9.0 feet NGVD. The discharge route remained the same. The District issued a Notice of Deficiency to Canoe Creek on March 3, 1989, because the District's field staff had found that the control structures, as well as the conveyance system, were not constructed in accordance with the surface water management permit specifications. The swales had been allowed to deteriorate and become obstructed. The weirs were only 3.8 feet wide and had 52-degree V-notches. They had been permitted as a 5.0 feet wide weir with a 40- degree V-notch. The problem with the width of the control structures was easily corrected, however. Hydrological relationship with Westwood subdivision. The Canoe Creek developer, Dean Development Company/Arthur Quinn, granted an easement to Westwood to drain its surface water into Canoe Creek. See, Finding 11, above. Canoe Creek argues that the parties intended to limit the easement for drainage from Westwood into Canoe Creek for a nine acre wetland on the western boundary of Canoe Creek. The more reasonable interpretation of the easement is that the parties meant to recognize and allow for the historic water flow in the area. The historic sheetwater flow runs from the 56 acres to the west of Westwood, across Westwood, and finally across the land which is now the Canoe Creek subdivision before it flows into Bessey Creek. The original surface water management permit issued by the District for the Westwood property on February 14, 1980, and all subsequent amendments to it, have authorized Westwood to discharge up to 21 CFS of water into Canoe Creek through a control structure located on Westwood's eastern boundary. The most recent amendment to the Westwood permit has the same peak discharge into the Canoe Creek system of 21 CFS during a 10-year/72 hour design storm event. Historic Basin Flows. Boundary and Direction of Historic Surface Flows in the Canoe Creek/Westwood Basin. A determination of the historic surface water flows in the basin is important under the District's criteria for granting or modifying surface water permits, which is known as the District's "Basis of Review." That document is part of Vol. IV, the District's Permit Information Manual and is incorporated by reference in District rules. The District generally intends to permit surface water flows which approximate the runoff from a parcel in its undisturbed or natural state. It is not necessary for an applicant to attempt to determine historic water flows where an allowable discharge rate has been developed by the U.S. Army Corps of Engineers for a basin. The rate determined for the C-23 basin is 31.5 cubic feet of water per second per square mile. This maximum allowable discharge rate applies to all projects in the C-23 basin. Basis of Review, Appendix 2, page B-30. This approximates the historic rate of surface water flow over the lands which comprise the C-23 basin during design storm conditions. In an effort to determine what caused the unauthorized discharge from Westwood's southern boundary into Bessey Creek in August 1988, the consulting engineer retained by Westwood, Mr. Searcy, walked the site. Based on his actual inspection, he found that a tributary area of 56 acres immediately west of Westwood contribute sheet flows to the Westwood subdivision. In general, the land west of Westwood has an elevation of about 13 feet. Elevation declines across Westwood and Canoe Creek, where at the eastern boundard of Canoe Ceek the elevation is about 7 feet. Essentially the elevation tilts from west to east. Mr. Searcy actually prepared a topographical map from survey data as an aid to analysis of the site surface water characteristics. This site specific data is persuasive. It supports Mr. Searcy's determination that sheet flow from the 56 acres to the west of Westwood did not flow south into Crane Creek or into some other tributary of Bessey Creek. Topographical data shows a relatively high area at the south end of the Westwood property which would prohibit flows to the south except for a very small area. The 56 acre parcel to the west is essentially a wetland, and when it overflows the discharge would go through the southern half of what now is the Westwood subdivision, flow through a series of wetlands within Westwood and ultimately to the east into the Canoe Creek subdivision. Review of aerial photography and USGS Quad sheets are consistent with Mr. Searcy's analysis. The mere existence of the easement across Canoe Creek's land is not a highly persuasive indicator of historic waterflows, because developers generally tend to force sheet water from the center of developments to their perimeters and discharge the flow from point sources. Mr. Mathers' testimony for Canoe Creek was less persuasive than that of Mr. Searcy because Mr. Searcy's testimony was, to a large extent, based on the topographic map of the area which he had prepared. In contrast, Mr. Mathers' testimony was based on his interpretation of aerial photographs. Inferences from those photos are necessarily more general and less reliable then information developed from on-site measurement. Mr. Mathers relied, to some extent, on older topographic or coastal geodetic maps, which are not always accurate when they are used to make determinations about small acreages in large map areas. Mr. Mathers also had not been on the site during flood conditions. As noted in Finding of Fact 18, above, The U.S. Army Corps of Engineers has computed the historic flow volume of water flowing across land in the Canal 23 basin. According to District rules, when evaluating whether a system is capable of handling a volume of run-off, these Corps of Engineers' calculations must be used, rather than attempting to assess and compare predevelopment versus postdevelopment run-off. Permit Information Manual, Vol. IV, Part B, Appendix 2, at page B-30 and Part C (IX) Design Drainage Basins, at page C-IX-1. The modifications in the surface water management systems proposed for Westwood and Canoe Creek would satisfy the C-23 basin criteria. V. Whether modification should be required. This question has two aspects: what are the deficiencies of the current situation, and what are the benefits of the changes proposed for the current system. These are discussed in subheadings A and B below. Current system's inconsistency with objectives of the District. Without surface water management system modifications, the Canoe Creek system does not provide the required level of flood protection for the area, and therefore can be characterized as constituting a danger to the public health or safety. The objectives of the District are found in Chapter 373, Florida Statutes, and Chapter 40E-4, Florida Administrative Code. The major objective of the District is to prevent damage from flooding. If a project meets the District's permitting criteria it is consistent with the objectives of the District. If a project does not comply with the permitting criteria, it is presumed to be inconsistent with the objectives of the District. Lack of flood protection and drainage, Rule 40E- 4.301(1)(a). 24. The backwater analysis of the Canoe Creek surface water system shows that it has insufficient capacity to convey surface water out of the system during design storm conditions. This creates a likehood that surface waters originating in Westwood and the 56 tributary acres to the west will cause flooding during heavy rains, such as rains which approximate the 10-year/72-hour design storm events. Inadequate flooding protection of the system is a potential nuisance. Ineffective operation and maintenance, Rule 40E- 4.301(1)(f). 25. The Canoe Creek surface water management system has not been maintained as it was originally permitted. It is not uncommon in residential subdivisions for roadside swales to become filled in or obstructed by a driveway construction. The conveyance swales downstream of the Canoe Creek lake's control structure have become filled with a height of material so that the swale is now higher than the control structural itself, which prevents the structure from functioning properly. Though a homeowner did testify the subdivision had recently caused the excavation of some of the material in the swale so that the control structure would be able to function, there is insufficient evidence that the work done restored the swale to its original permit conditions. Properly graded swales are necessary for the system to function as designed. Adverse effects on public health and safety, Rule 40E- 4.301(1)(g). 26. The current Canoe Creek surface water management system does not meet applicable District criteria for design storm events, which means it constitutes a flood hazard, and therefore a threat to public health and safety. Inconsistency with state water policy, Rule 40E- 4.301(1)(h). 27. The failure to meet District design criteria for flood control and drainage also means that the current Canoe Creek system is not consistent with state water policy or applicable basin criteria. Inconsistency with applicable basin criteria, Rule 40E- 4.301(1)(j). The current Canoe Creek system does not meet applicable basin criteria as shown by the Searcy backwater analysis, but if it is modified as proposed, the system will meet those criteria. Facts which show that the modifications proposed will be consistent with District objectives. If modified as proposed, the backwater analysis performed by Mr. Searcy on the modified system, flood routings, hydrographs, and other evidence provide reasonable assurances that the modified Canoe Creek system will meet the criteria found in the District's Basis of Review for Surface Water Management Permit Applications. Flood protection and drainage, Rule 40E-4.301(1)(a). 30. If modified as proposed, the combined Westwood/Canoe Creek surface water management system will provide adequate flood protection and drainage, as shown by the backwater analysis. Absence of adverse water quality and quantity impacts on receiving waters and adjacent lands, Rule 40E-4.301(1)(b). 31. If modified, the Westwood surface water management system and Canoe Creek system will be able to handle their own waters and those from the 56 acre tributary area. Postdevelopment discharge will not exceed predevelopment discharges when measured by applicable C-23 basin criteria of 31.5 CFS per square mile. Water quality treatment is provided by the volume of water detained in the lakes and swales over time and by the incorporation of "best management practices" in the system, including the use of swales and wetlands as part of the treatment system. The increased volumes of water the system will handle, and the marginally increased velocity which comes with the increased water flowing through the system, will not affect water quality. Water quality is assured through the system's detention and storage requirements. Elevations of the control structure are unaltered, so there should be little, if any, increases in water velocity. Detention and storage also is accomplished through the control elevations of the structures in the system, which are not being changed in Canoe Creek. Absence of adverse impacts on surface and ground water levels and flows, Rule 40E-4.301(1)(d). 32. No control elevations within the Canoe Creek surface water management system will be changed, although the weir will be widened. There will be no impact on groundwater levels and flows. Even when regraded, Canoe Creek's existing swales will still be above the seasonal high ground water table. There would be no interchange of ground water with water detained in the swales above ground. Absence adverse environmental impacts, Rule 40E- 4.301(1)(e). 33. No modifications are proposed in the wetlands (lakes) on Canoe Creek's property, and no control elevations are being changed. There should be no adverse environmental impacts as measured by District criteria. Effective operation and maintenance, Rule 40E- 4.301(1)(f). 34. While the existing system has not been effectively maintained, nothing about the proposed modifications will impose any additional burden on Canoe Creek in creating and carrying out an effective maintenance program once the required changes are made. Absence of adverse effects on public health and safety, Rule 40E-4.301(1)(g). 35. Better flood protection and drainage will enhance public health and safety. There will be no impact on potable water supplies as there is no persuasive evidence that water tables in a cone of depression are being affected or altered. District criteria for separation will not be violated, for there is no wet detention system currently permitted in the Canoe Creek system, and none would be created. The testimony of Mr. Unsell in this regard was persuasive (Tr. 232, 305-06, 328). None of the excavation from the regrading of the swales on Canoe Creek's property would intrude into a seasonal high water table of groundwater, or cause a mixing of ground water with surface waters being retained or directed in the system. Since there is no wet detention, the requirement of Section 3.2.2.4 of the Basis of Review, that wet detention areas be separated from public water supply wells by 300 feet, will not be violated. Consistency with state water policy, Rule 40E- 4.301(1)(h). 36. This factor is not implicated in the proposed modifications, for nothing about the proposed modifications of the Canoe Creek surface water management permit would be inconsistent with state water policy. Meets applicable basin criteria, Rule 40E-4.301(1)(j). 37. The testimony of District staff, and of the expert for Westwood are persuasive that the drainage criteria for the Canal 23 basin are satisfied by the proposed modifications. Will not harm district water resources or interfere with the legal rights of others as defined in Rule 17-40.07, Rule 40E-4.301(1)(k). 38. The modifications will result in no harm to water resources of the District. There will be no interference with legal rights of others as defined in Rule 17-40.07, Florida Administrative Code, because that rule of the Department of Environmental Regulation has been repealed. See, Rule 17-40.404, Florida Administrative Code. In addition, the issue of the effect of the modification on Canoe Creek residents has essentially been raised and decided adversely to Canoe Creek in the Westwood permit application litigation, which was recently affirmed by the Fourth District Court of Appeal. The modification is not against public policy, Rule 40E- 4.301(1)(l). 39. The foregoing findings show that the proposed modifications meet the standards found in the District Basis Of Review and Rule 40E-4, Florida Administrative Code. They are therefore consistent with public policy. Will meet the general and specific criteria in the Basis Of Review, Rule 40E-4.301(1)(m). 40. The engineering data and analysis of Mr. Searcy and the testimony the District reviewers are persuasive that the proposed modifications provide reasonable assurances that the general and specific criteria found in the District's Basis Of Review will be satisfied. The modifications are consistent with applicable flood protection, drainage, and water quality criteria. Isolated wetlands, Rule 40E-40.301(1)(n). 41. The hydrologic function of existing wetlands on both the Canoe Creek and Westwood property will be preserved if the proposed modifications are made. They will have no impact on other wetlands. Criteria for above ground impoundments, Rule 40E- 4.301(1)(o). The proposed modifications will meet all design criteria found in the District's Basis Of Review. This is shown by the flood routings and backwater analysis of the existing and proposed systems. This issue also has already been litigated by Canoe Creek in the Westwood permit application case, which was decided adversely to its position there, and the final order in that case was affirmed by the Fourth District Court Appeal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the modifications to the Canoe Creek Surface Water Management permit number 43-00135-S made in the District's administrative complaint and order/notice of intended modification be granted. DONE and ENTERED this 31st day of July, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 31st day of July, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on the findings proposed by South Florida Water Management District: 1. - 4. Discussed in the Preliminary Statement. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. Adopted in Finding 7. Adopted in Findings 7 and 8. Adopted in Finding 10. and 13. Adopted in Finding 10. Adopted in Finding 12. Adopted in Finding 13. Adopted in Finding 14. and 18. Adopted in Finding 15. 19. and 20. Adopted in Finding 16. Adopted in Finding 17. Adopted in Finding 11. Adopted in Finding 15. Rejected as argument. Adopted in Finding 19. Adopted in Finding 21. The remaining paragraphs are treated as if they had been numbered. Adopted in Finding 24. Adopted in Finding 23. Adopted in Finding 24. Adopted in Finding 26. Adopted in Finding 27. and 33. Adopted in Finding 28. Adopted in Finding 29. Adopted in Finding 30. - 38. Adopted in Finding 31. 39. Adopted in Finding 32. 40. Adopted in Finding 33. 41. Adopted in Finding 34. 42. Adopted in Finding 35. 43. Adopted in Finding 36. 44. Adopted in Finding 37. 45. Adopted in Finding 38. 46. Adopted in Finding 39. 47. Adopted in Finding 40. 48. Adopted in Finding 41. 49. Adopted in Finding 40. Rulings on the findings proposed by Westwood: 1. - 7. Discussed in Preliminary Statement. Adopted in Findings 3 and 4. Adopted in Findings 10 and 17. Adopted in Findings 7 and 8. Adopted in Finding 9. Adopted in Findings 4 and 9. Adopted in Findings 10 and 11. Adopted in Findings 3 and 4. Adopted in Findings 8 and 10. Adopted in Finding 12. Adopted in Finding 13. Adopted in Finding 14. Adopted in Findings 10 and 15. Adopted in Finding 16. Adopted in Findings 10 and 17. Adopted in Findings 10, 17 and 19. Rejected as unnecessary. Adopted in Findings 10, 17 and 19. Adopted in Finding 15. Adopted in Finding 2, except for the final two sentences which are rejected as unnecessary. Adopted in Findings 12 and 19. Adopted in Findings 18 and 19. Adopted in Finding 20. Adopted in Findings 18 and 21. and 32. Adopted in Finding 23. Adopted in Finding 22. Rejected as unnecessary. Adopted in Finding 24. Adopted in Finding 25. Adopted in Finding 26. Adopted in Finding 27. Adopted in Finding 28. Adopted in Findings 27 and 28. Adopted in Finding 29. Adopted in Finding 30. - 45. Adopted in Finding 31. Adopted in Finding 32. Adopted in Finding 33. Adopted in Finding 34. Adopted in Finding 35. Adopted in Finding 36. Adopted in Finding 37. Discussed in Finding 38. Adopted in Finding 39. Adopted in Finding 40. Adopted in Finding 41. - 58. Rejected as redundant. Rulings on the findings proposed by Canoe Creek: Adopted in the Preliminary Statement. Adopted in Findings 3 through 7. Adopted in Finding 15. and 5. Rejected as irrelevant. The acreage drained according to the permit is consistent with the application made to the District, but not with the historic sheet flow. Rejected. The project was not constructed properly, see, Finding 25. Sentence one adopted in Finding 11. Sentence 2 and proposed finding 8 are rejected for the reasons stated in Finding 17. Adopted in Finding 14. Rejected as unnecessary and unpersuasive. Rejected as unnecessary. Rejected for the reasons found in Finding 18. Where there is a basin discharge rate, historic discharge is not determined for an individual parcel. Rejected. See, Findings 19 and 20. There is no Crane Creek permit in evidence, which Respondents refer to in their proposed findings as RX 181. Rejected. See, Findings 17 through 20. and 16. Rejected. See, Finding 20. Rejected as unnecessary. Generally accepted in Finding 21. Rejected because routings of the flow north or south would be inconsistent with the historic sheet water flow. and 21. Rejected. See, Findings 19 and 20. Rejected. See, Finding 17. Rejected. See, Findings 10, 17 and 19. Rejected; it is fortunate that there has not been flooding before this time. During the last heavy rain in August of 1988 there may have been no flooding because water from the western 56 acres and Westwood broke through the south of the Westwood berm and could flow south into Bessey Creek in an unauthorized manner. and 26. Adopted in Finding 23. 27. and 28. Rejected because this is not an original permit application, but an action by the District to require modification of an existing permit. It is not necessary for the District to file a permit application with itself. This modification procedure is appropriate, and focuses narrowly on the problems with the current system. Rejected as unnecessary. Rejected for the reasons given for rejecting Findings 27 and 28. Rejected. The Searcy report was generally checked by the District staff, although they did not conduct an independent analysis of their own. and 33. Rejected. See, Finding 35. Rejected. See, Findings 18 and 21. Rejected, Searcy determined that the two systems would peak at different times. See, Finding 14. Rejected, there will be no turbidity problems because there is no increase in velocity of the water. See, Finding 31. Also, there is no additional peak flow of water, see, Finding 14. The peak flow from Westwood remains 21 CFS. Rejected. See, Finding 34. Rejected. See, Finding 35. Rejected. See, Finding 39. Rejected. See, Finding 35. Rejected. See, Finding 34. Rejected as a conclusion of law, but the standards found in Rule 40E- 4.301 are applicable. Rejected as unnecessary. and 45. Rejected as argument, not a finding of fact. Rejected because the developer of Canoe Creek, the developer of Westwood, and the District were mistaken in designing their surface water management systems by not including drainage from the 56 acres to the west of Westwood. The system is inconsistent with the District objectives. It is fortunate that the system has not flooded yet, but if not changed, it will. The discharge of water which took place in August of 1988 from the south perimeter of Westwood will no longer take place. Even if the August of 1988 storm was not the equivalent of a design storm, when a design storm occurs, the current system will be proven to be inadequate by sad experience. Rejected because the testimony of Mr. Searcy was more persuasive. Rejected because the testimony of Mr. Feinstein was unpersuasive. See also, Finding 14. Rejected. See, Finding 35. Rejected. See, Findings 31-33. Rejected as unnecessary, the knowledge of Mr. Unsell is not determinative. Rejected as redundant. Rejected. See, Findings 23 and 24. In a design storm, the proposed modifications will protect Canoe Creek from flooding. The current system will not accommodate historic water flows. Rejected because the routing in the modification reflects the historical water flow. Rejected. See, Finding 12. Rejected as unnecessary. Rejected because the historic water flow is not north to Mid-Rivers or south to Rustic Hills. Rejected as inconsistent with the historic flow. and 61. Rejected, the testimony of Mr. Searcy was more persuasive, See, e.g., Tr. at 661. Rejected. I am not persuaded that improvements to the northern route of Canoe Creek are needed. and 64. Rejected as redundant. Rejected as unnecessary. Rejected because Rule 40E-4.301(1)(k) does not apply, See, Finding 38. COPIES FURNISHED: John J. Fumero, Esquire 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416 Manuel Farach, Esquire Post Office Box 778 Stuart, Florida 3499-50778 Don Mooers Qualified Representative Post Office Box 1147 Palm City, Florida 34990 Terry E. Lewis, Esquire Robert P. Diffenderfer, Esquire Messer, Vickers, Caparello, French, Madsen & Lewis, P.A. 2000 Palm Beach Lakes Boulevard Suite 900 West Palm Beach, Florida 33409 John Wodraska, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether Respondent engaged in an unlawful employment practice with regard to Petitioner.
Findings Of Fact Mr. Bennett was employed as a forester by the Department from May 30, 2003, until his termination on December 10, 2004. During times pertinent he was 30 years of age. The Department is headed by the Commissioner of Agriculture. The Division of Forestry (Division) is an organic element of the Department. Among the duties of the Division are the protection of state forest lands and the provision of forest environmental education and forest recreation. Mr. Bennett had eight to ten years of experience as a forester when he was hired by the Division. His initial assignment was as a forester stationed in the Bear Creek Educational Forest (Bear Creek). Mr. Bennett was diagnosed as having bipolar disorder when he was 19 years of age. He has been medicated since that time with Lithium and Zyprexa. Lithium must be taken on a regular basis. Zyprexa is taken only when the lithium fails to accomplish the desired result. Zyprexa was needed when Mr. Bennett became stressed. Zyprexa taken in a very small dose would not affect Mr. Bennett's ability to work. Larger doses of five or ten milligrams resulted in Mr. Bennett having to be absent from work. Mr. Bennett refrained from revealing his bipolar disorder to his employer. If the effect of the Zyprexa was such that he could not work, he would ask for leave and it would be given to him with no question, at least until August 9, 2004. In performance evaluation periods ending May 2003 and May 2004, Mr. Bennett received acceptable evaluations. These evaluations were mid-range and not remarkable. They did indicate that he consistently achieved Division expectations. At work, Mr. Bennett was teased by co-workers about his excessive weight from time to time and remarks were made to him by fire fighters which indicated that being a forester was not as important as being a fire fighter. This bothered Mr. Bennett. August 9, 2004, was not a good day for Mr. Bennett. His mother was ill and he was feeling stress because of this. He completed a physical examination as a precursor to becoming qualified as a forest fire fighter and then went to Bear Creek despite feeling unwell. When he arrived at Bear Creek he was greeted by Shawn Duggar. Mr. Duggar laughed at him and this upset Mr. Bennett. Mr. Bennett became irate and cursed. It is clear that Mr. Bennett did not physically harm Mr. Duggar, but Mr. Bennett's display of emotion unnerved Mr. Duggar. Mr. Bennett's manner was sufficiently menacing that the physically smaller Mr. Duggar believed that he had reason to fear for his personal safety. As a result of this encounter Mr. Duggar departed the area and drove to the district office. Mr. Bennett felt too upset to work on August 10, 2004. He called in early that day and left a message on Mr. Oswalt's answering machine informing him that he would be unable to come in to work that day. Mr. Oswalt was Mr. Bennett's supervisor at the time. Both Mr. Oswalt and Mr. Weber, the supervisor next up the line, called Mr. Bennett and wanted to have a meeting with him. Later the district manager, Charlie Marcus, called. Lastly, he got a call from John Webster, a bureau chief. Mr. Bennett felt that because he was on sick leave, he did not have to meet with these supervisory personnel. Also to the best of his recollection, Mr. Bennett had taken Zyprexa that morning and as a result, he felt it would be inappropriate to meet with his supervisors while under the influence of that drug. John Webster was sufficiently concerned about Mr. Bennett's behavior that he asked him if he was, "going postal." The phrase "going postal" means engaging in violent acts in the workplace. Subsequently, at Mr. Webster's instigation, Gadsden County Sheriff's Deputy Jenkins came to his residence, which was located within the curtilege of the Bear Creek facility. Deputy Jenkins told Mr. Bennett that he wanted Mr. Bennett to enroll in the Employee Assistance Program (EAP). About one hour later, Deputy Jenkins came back to Mr. Bennett's residence accompanied by Sergeant Wilder from the Gadsden County Sheriff's Office. Mr. Bennett was questioned with regard to his stability and medications, the EAP program was discussed yet again, and Sergeant Wilder observed that Mr. Bennett was "a bit shaky." The officers also talked to Mr. Bennett's girlfriend when she called Mr. Bennett. Thereafter, the officers departed. After several days of suffering from the effects of his bipolar disorder, Mr. Bennett returned to work on August 19, 2005. On August 23, 2004, Mr. Bennett met with his supervisors. As a result of that meeting he was transferred from Bear Creek to Wakulla County, and Ken Weber, the Forestry Operations Administrator for that district, referred him to EAP. He was also required to get a note from his doctor indicating the cause of his absence. The physician's note that he brought the first time failed to specify the type of illness resulting in his absence. He was required to get a second note and he did. This second note also was nonspecific with regard to his illness. The doctors were of the opinion that it would violate Mr. Bennett's privacy if they revealed the nature of his illness. Subsequently, on September 8, 2004, he received a memorandum of counseling. This was not punitive. It merely told him to avoid instances of behavior such as that demonstrated on August 9, 2004. It is important to note at this point, that although Mr. Bennett, immediately after the incident of August 9, 2005, and at the hearing, attempted to minimize the incident with Shawn Duggar, it is found as a fact that Mr. Bennett's actions at that time were irrational and demonstrated a lack of emotional control. This was recognized by the Chief of Human Resources who said he was sent to EAP for "anger management problems." Mr. Bennett successfully completed the requirements of EAP and evidence of this was provided in a letter from Jerry A. Smith of the Allen Group, a provider of employee assistance, which stated, "Mr. Bennett has been compliant with, and has now successfully completed, all recommended treatment." His supervisor at the Wakulla County job was Ken Weber. His work at that job for a few weeks was unremarkable. On October 14, 2004, there was a Wakulla State Forest status meeting which Mr. Bennett attended. Mr. Weber, William Taylor, and others attended. Mr. Bennett suggested that they buy a digital camera for official use. He was informed that he should meet with Allen Griffith, who also used a camera in his work, fill out a necessary form, and then purchase the camera. Mr. Bennett discussed the matter with Allen Griffith briefly, and purchased the camera with his state purchasing card. Mr. Bennett did not fill out the necessary forms due to his lack of understanding of the complexity of state purchasing rules. His purchase of the camera was somewhat precipitous, but there was no malicious intent on his part nor did he personally benefit from the purchase of the camera. He was eventually asked to return the camera to the seller, and he did as asked. Subsequent to Hurricane Ivan, Mr. Bennett was ordered on temporary duty in the Blackwater River State Forest (Blackwater) which had been damaged by hurricane winds. Blackwater is located two to three hours from Crawfordville. He began this duty sometime after the October 14, 2004, meeting. Accommodations for the foresters were provided in a hotel in Crestview. Mr. Bennett was required to share a room with another forester. The roommate to whom he was assigned snored loudly and Mr. Bennett could not obtain the amount or quality of sleep that he needed. This resulted in aggravating his bipolar disorder. The lack of regular sleep, along with the side effects of the lithium he was taking, caused Mr. Bennett's eyes to burn. He had headaches and felt the onset of a manic episode. By the third night his respiration rate increased and he was feeling very stressed. He called his girlfriend and she suggested that she should come get him. He agreed and she drove from the Tallahassee area to Crestview and, beginning after midnight, followed him as he drove his state-assigned vehicle back to Crawfordville, where he ingested some Zyprexa and went to sleep. Mr. Bennett had access to a telephone in Crestview and two-way radio equipment in his truck, but he made no effort to contact his superiors to inform them that he had decamped. Two or three days later he talked to Mr. Weber and explained to him the reason he abandoned his position. Mr. Weber told him that he needed to get some help. The events surrounding the Blackwater forest episode occurred during the work week October 25-29, 2004. Mr. Bennett returned to work Monday, November 1, 2004, after he was able to take his medicine, rest, and achieve stability. Ultimately his superiors sent him back to Blackwater where he stayed in a private room and performed in accordance with expectations. Before Mr. Bennett's planned stay was completed, he was pulled from the Blackwater operation and told he was to be terminated. Although a written reprimand was drafted addressing the camera incident, and another was drafted with regard to the unauthorized departure from the Blackwater operation in October, the letters were never dated, signed, or presented to him. Rather, these matters were addressed in a letter dated November 12, 2004, announcing that he was being recommended for termination. This was signed by Elaine Cooper, Chief of Personnel Management. The letter of November 12, 2004, addressed his failure to follow procedures when purchasing the camera and his unauthorized departure from the Blackwater operation in October. He was notified that his actions constituted a violation of "AP&P No. 5-3, Section V, Insubordination, (Page 3), and Poor Performance, (Page 20), respectively." The letter set a meeting for November 30, 2004, and informed him that he could attend and answer the charges against him. Mr. Bennett responded with a short letter dated November 28, 2004, addressed to Elaine Cooper, Chief of Personnel Management, which informed her that he had a disability which he could manage. He further noted that his disability could cause him to become irritable or angry. He did not reveal his bipolar disorder in this letter. This letter was delivered to Ms. Cooper at the predetermination conference. In a letter dated November 29, 2004, a longer letter was prepared for Ms. Cooper. This letter provided his version of his employment experience as a forester and included a public records request. It did not assert that he was disabled. This letter was delivered to Ms. Cooper at the predetermination conference. At no time prior to November 30, 2004, did Mr. Bennett claim to have a disability or ask for an accommodation as a result of a claimed disability. At no time prior to November 28, 2004, was Mr. Bennett perceived to be disabled by his employer or any of its representatives. When he did inform Ms. Cooper that he believed he had a disability, he did not reveal the nature of his disability. In a letter dated December 6, 2004, addressed to Mr. Bennett, Ms. Cooper noted that at the predetermination conference on November 30, 2004, he informed her for the first time that he believed he had a disability. The letter stated that his doctor should be provided with Mr. Bennett's position description and should comment on his ability to perform in accordance with the position description, with or without an accommodation. No deadline was provided as to when a response was due. In an e-mail dated December 9, 2004, Mr. Bennett asked Ken Weber for one-half day of leave so that he could have his doctor address the matters contained in Ms. Cooper's letter of December 6, 2004. On December 13, 2004, Mr. Weber presented Mr. Bennett with a letter dated December 10, 2004, signed by Ms. Cooper, which informed him that he was terminated effective December 16, 2004. A Special Accommodation for Disability was prepared by Dianna Byrd, a medical doctor, on December 28, 2004, stating that Mr. Bennett should be allowed regular and appropriate lunch breaks and should be allowed to take a five minute break during stressful situations. It further stated that the Department should allow his fiancé to call-in sick for him and that he should be allowed to visit the doctor when he had an appointment. At the time Dr. Byrd described these accommodations, Mr. Bennett's employment relationship with the Department had been severed. It must be noted that even at this late date, no diagnosis was provided. Even when he filed his Charge of Discrimination with FCHR December 21, 2004, he failed to reveal the nature of his asserted disability.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission dismiss Mr. Bennett’s petition. DONE AND ENTERED this 19th day of December, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Marie Mattox, Esquire Law Office of Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Stephen M. Donelan, Esquire Department of Agriculture and Consumer Services 509 Mayo Building 407 South Calhoun Street Tallahassee, Florida 32399-0800 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On August 25, 2008, Respondent Glades County (County) adopted an amendment to its comprehensive plan by Ordinance No. 2008-25 (Amendment). The Department reviewed the Amendment, determined that it did not meet the criteria for compliance set forth in Section 163.3184(1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not “in compliance.” The Department then instituted this administrative proceeding against the County pursuant to Section 163.3184(10), Florida Statutes. Filed June 17, 2010 2:33 PM Division of Administrative Hearings. On May 11, 2010, the County repealed the Amendment by adopting Ordinance No. 2010-08. By virtue of this rescission, the instant controversy has been rendered moot and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department).
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. 3 of 4 FINAL ORDER No. DCA10-GM-112 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by Electronic Mail to each of the persons listed below on this We day of June, 2010. Paula Ford ie Agency Clerk By Electronic Mail The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Richard Pringle, Esquire Attorney for Glades County Strayhorn & Strayhorn Post Office Box 1545 Fort Myers, FL 33902-1545 richard@strayhornlaw.com Lynette Norr Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 Lynette.Norr@dca.state.fl.us 4 of 4
The Issue Whether respondent discriminated against petitioner on account of his race in terminating his employment as a glass bottom boat captain at Silver Springs? Whether Emma Hawkins should be allowed to intervene? If so, whether respondent discriminated against intervenor on account of her race in failing to promote and ultimately in discharging her?
Findings Of Fact On January 1, 1989, FLAC acquired Silver Springs and Wild Waters, an adjacent tourist attraction dating to 1977 or 1978. In or near Ocala, Florida, both properties had belonged to Florida Leisure Acquisitions, Inc., who had acquired them from American Broadcasting Company some five years earlier, in a "leveraged buyout." FLAC also acquired Weeki Wachee in 1989. T.449. Thomas Cavanaugh, who started as a vice-president and general manager in 1973, survived both changes in ownership, and had effective control over a unified personnel system until his departure in 1990. As late as 1973, everybody who worked at Silver Springs as a glass bottom boat captain was black. When FLAC acquired Silver Springs, five of twelve glass bottom boat captains were black. At the time of petitioner's discharge on June 21, 1989, seven of the boat captains were black. The number had fallen to three by November of 1990. Hiring Patterns Most of the jobs at Silver Springs require little or no skill, and this has been true at all pertinent times. Boat captains needed only to be able to deliver a spiel or learn a script and handle a boat. Maintenance and food service positions were predominantly unskilled. In all these areas, there were also some positions for managers or supervisors. Between December 7, 1987, and May 6, 1991, inclusive, respondent or its predecessor hired 104 boat captains or guides, and offered jobs as boat captains or guides to 20 others who did not accept. None of those who refused offers and only one who accepted was black. Nine of 520 persons who applied for these positions during this time period were black. In late 1989 and early 1990, blacks applying for other positions at Silver Springs comprised a significantly higher proportion of the applicants for these other positions. In the early part of 1990, blacks accounted for 6.95 percent of applicants for all jobs at Silver Springs, up from the latter part of the year before. Treating the population between 15 and 64 as a proxy for the civilian labor force, the civilian labor force in the area was, according to 1980 census data, 14.7 percent black, a percentage that had fallen by 1990 to 12.7 percent. Blacks comprised 11.1 percent of the Marion County population 15 and older in 1990, and 16.8 percent of those who found work through the Florida State Employment Service in the period from July of 1990 through June of 1991. A labor economist called by petitioner testified that the discrepancy between the percentage of blacks in the flow of applicants for work as boat captains or guides and the percentage of blacks in the work force in Marion County permitted an inference "that there is . . . probably some barrier to entry for individuals to apply," Fresen Deposition, p. 21, for those positions. The same witness was also willing to speculate, id. at 54, that the discrepancy between the percentage of blacks in the flow of applicants for boat captain or guide positions and the percentage of blacks in the flow of applicants for other positions at Silver Springs "may be . . . [attributable to t]he channelling of applicants for navigational positions into other positions." Id. at 55. Respondent attributed the conceded decline in black applicants for work at Silver Springs to better opportunities increasingly available elsewhere in Marion County, including positions at a Martin-Marietta plant with 1800 employees, at Certified Grocers with 800 employees, at Energy One and at Federal Motors, each with 1100 employees in the community, and at a K-Mart Distribution Center with two or three hundred employees. T.440-1. Glass Bottom Boats For several years, perhaps since 1957, U.S. Coast Guard regulations have required that passengers on glass bottom boats at Silver Springs be told about life jackets on board, and boat captains have been responsible for doing this, before setting out. Otherwise, until a few years ago, each glass bottom boat captain had broad discretion about what he did or did not say to passengers on board. On July 1, 1957, when petitioner David Faison, who is black, began work for one of respondent's predecessors in interest as a glass bottom boat captain (or driver), each captain was required to compose a talk to deliver to glass bottom boat passengers. As a new recruit, Mr. Faison read the book "Eternal Springs" and rode with other captains, before leading his own boat tours, pointing out flora and fauna and sharing information about the springs. An Easter Outing Jim Schorr, then FLAC's new chief executive officer, took his family for their first ride on a glass bottom boat at Silver Springs on Easter Day 1989. They "went down on the glass bottom boat dock, and they took the first boat that was available and that happened to be Riley Williams' boat." T.526. Afterwards Thomas Cavanaugh summoned Riley Williams, a black boat captain with more than 30 years' experience, and Michael Jacobs, respondent's director of operations, to his office. "Riley, what happened? What happened with your trip, Riley?" he asked. "We just talked to Jim Schorr. He said it was a terrible trip." T.526. Surprised and visibly shaken, Mr. Williams reported that "Mr. Schorr even told me my trip was good," (T.527) but allowed that he had been nervous. Mr. Cavanaugh told him to take the afternoon off and said, "Riley, we're going to go ahead - we're going to help all the drivers. We're going to hire a drama coach, and it will help everybody out." Id. Standardization David London, the new drama coach, prepared the first version of a script the boat captains were asked to commit to memory, or at least to follow closely as a guide when giving tours. As requested, petitioner, along with other boat captains, made suggestions for improving the script. T.251, 521. At a meeting on or after May 2, 1989, a revised script was distributed to assembled boat captains, and Mr. Schorr announced "that he wanted them to learn the script, and if they chose not to learn the script, that they could find work elsewhere." T.484. No deadline was given. T.44, 429. Whether petitioner Faison was in attendance is unclear. T.294. Riley Williams now works on the grounds at Silver Springs, landscaping and gardening. His pay is no less than if he had remained a boat captain. He asked for a transfer because he felt he "really wasn't coming up to par of what they wanted . . . [from boat captains] and the time was closing in " T. 581. Dockmaster A black man, Willie Barr began as a glass bottom boat captain at Silver Springs in 1974. Except for a hiatus that began in 1980 and ended in 1981, he continued in respondent's employ (or that of a predecessor in interest) until November 18, 1989, when he retired as dockmaster, a salaried position he first assumed in 1982. As dockmaster, Mr. Barr reported directly to Mike Jacobs, the white man who worked as respondent's director of operations. Mr. Barr had overall responsibility for both jungle cruise and glass bottom boats; and particular responsibility for scheduling glass bottom boat captains' work and for maintenance of the glass bottom boats. A separate maintenance department actually did the work. He also piloted, loaded, unloaded and tied up glass bottom boats. Mr. Barr retired at age 52 at least partly because of high blood pressure, a malady of which both he and Mr. Jacobs had become aware in early 1989. T.299, 481. During the months before he stepped down, Mr. Barr came to Mr. Jacobs on several occasions, and told him "about the stress he was under at the boat dock, the problems he was having with the drivers, a new company taking over and all the changes that were taking place." T.481. In May of 1989, Mr. Jacobs asked Mr. Utz, a decorated Navy veteran who had worked at Silver Springs longer than Mr. Barr, "to give Willie a hand." T.371, 481-2. At the time of this request, Mr. Utz, who is white, was "at the jungle cruise most of the time running the jungle cruise operation," (T.298) as lead or "manager of the jungle cruise." T.368. Mr. Barr viewed Mr. Utz, before May of 1989, as his assistant, as did every glass bottom boat captain who testified on this point. But management witnesses insisted that Mr. Utz's position "at the jungle cruise" was equal in rank to that of glass bottom boat dockmaster, the position Mr. Barr held. T.472. Although Mr. Utz worked for an hourly wage before (and, initially, after) the change in May of 1989, Mr. Utz's remuneration exceeded Mr. Barr's salary significantly. In addition to supervising jungle cruises, Mr. Utz trained boat captain recruits. Respondent gave Mr. Utz no pay raise in May of 1989, when his broader responsibilities seemed to most to entail greater authority. The company's chief executive officer acknowledged that a change in the pecking order occurred. T.455. Mr. Barr began reporting to Mr. Utz in May of 1989. T.275. On May 7, 1989, Mike Sentman took over as lead for jungle cruise operations. Response to Petitioner's First Set of Interrogatories, No. 16. Glass bottom boat drivers considered Mr. Barr their supervisor before, but not after, the time Mr. Utz undertook his new role in glass bottom boat operations. T.42, 53- 4, 57. Ultimately Mr. Utz assumed a new title, supervisor of boat operations (T.295, 372), and filled a newly created position, which respondent never advertised, even to other employees. He continued to train all new boat captains before they took a test the U.S. Coast Guard required, drawing on his long experience with boat handling. Only in January of 1990, after Mr. Barr had retired, however, did Mr. Utz acquire his present title and become a salaried employee. T.372. We Are Not "Edutained" On Tuesday, June 20, 1989, the day David Faison returned from a two- week vacation, David London rode on his boat and listened to what petitioner said to the tourists. Unfavorably impressed, he told Donald Utz afterwards, "Wow, that was terrible. That was the wors[t] yet." T.378. That afternoon Donald Utz and Michael Jacobs sent Robert Sinkler, Jr., at the time employed in respondent's "Edutainment" program, on a boat ride with petitioner, with instructions to videotape petitioner's performance. Virtually without interruption, petitioner (who mistook Mr. Sinkler for a tourist) was videotaped for the duration of the trip. Received in evidence as Respondent's Exhibit No. 1, the videotape records petitioner's remarks, delivered in a sometimes unintelligible singsong. They bear scant resemblance to the prescribed script, and include no reference to life jackets. On other occasions, however, petitioner did advise passengers of the life preservers on board. T. 278. David Faison was asked the next day to join Messrs. Jacobs and Utz, in viewing at least a portion of the videotape. In the discussion that followed, petitioner, who was said to be good-natured ordinarily, expressed resentment at having to use the script, which Mr. Jacobs took as a refusal to do so. Petitioner is "a person that would tell you what he thought." T.451. He terminated petitioner's employment on the spot, although Mr. Faison was generally seen by his superiors in the organization as not the type of person to be insubordinate. T.450-451. The day Mr. Faison was discharged Willie Barr, the dockmaster, asked to see the videotape, after he learned from other boat captains that petitioner had been sent home. Mr. Barr watched part of it in the company of Don Utz, who told Mr. Barr that petitioner had been discharged for failure to use the assigned script. T.295. Mr. Utz "didn't really indicate that" (T.295) respondent had refused to use the script. Before petitioner's discharge, Mr. Utz had told Virginia Phillips that he did not know how the black boat captains were going to do because they were difficult to understand. T.51. He also told her he did not want her going to "that area of the city," (T.47) which she took to mean the black residential area. She had recently travelled there when she drove a black boat captain, Alphonso Sears, home. Insubordination was (and remains) a recognized ground for dismissal. T.293, 303. But a white glass bottom boat captain was not dismissed despite refusing to be "cross-trained" as a boat captain for two of the three other rides offered by FLAC, even though he had originally been told that "cross training" for all three was mandatory. T.108. The white employee did train as a boat captain for one of the three other rides. He was told, three weeks before the hearing, that training for the other two was not required. T.109. Another boat driver, Virginia Ferguson, testified that she "was told recently all boat drivers needed to be cross-trained" (T.175) to act as guides on all four rides. T. 176. A second white boat driver also refused cross- training with impunity. T.420. But nobody else was shown to have insisted on giving the glass bottom boat tour his own way, without using the prescribed script. Respondent's newly installed chief executive officer had personally decided and publicly announced that all glass bottom drivers were to use the script. Recruitment Efforts Four times petitioner tried unsuccessfully to get in to see Mr. Cavanaugh in an effort to regain the job he had held for more than three decades. At hearing, Mr. Cavanaugh characterized his failure to talk to petitioner about his discharge as an "error" (T.452) that he attributed to the emotional drain of having himself to terminate the employment of so many people he had worked with for a long time. David Faison was one of approximately twenty employees FLAC discharged in 1989, most of whom were managers. "The new management was making a sweep." T.449. Like his brother David, Roosevelt Faison has worked as a boat captain at Silver Springs for many years. He began on May 4, 1956, and worked full-time until 1989, when he chose to cut back to two days a week. An average or above average employee (T.276), his evaluations have been consistently "good" or "excellent." In May of 1989, he told Anne Dansby, a white woman who worked for respondent that "the few blacks . . . [still employed] felt like they w[ere] not really wanted in the park." T.125. She apparently relayed the substance of this conversation to Tom Cavanaugh, who later brought up the subject with Mr. Roosevelt Faison, agreeing that the number of black employees had dropped. Mr. Cavanaugh told Mr. Roosevelt Faison that he "was dead on the money, but it wasn't done intentionally." T.126.36. On the third or fourth day after his arrival at Silver Springs, Thomas Cavanaugh ordered an end to racially segregated bathrooms at Silver Springs. He personally included a sledge hammer in an attack on a urinal reserved, until its destruction, for the use of black men. Within months of his arrival, he "retired" the white supervisor of glass bottom boats and replaced him with a long-time black employee. He sought to recruit black employees through the school system and enlisting the assistance of black community leaders. These efforts antedated his discussion of the situation with Roosevelt Faison, and intensified after their discussion. Lay-Off On a Monday in July of 1989, when Mr. Roosevelt Faison reported to work, he found a note with his paycheck, which said, "Roosevelt, you are off until notified to come back to work." T.127. When he spoke to Ms. Dansby about the note, she called Mike Jacobs, but he was reportedly too busy to talk to Mr. Roosevelt. Ms. Dansby then called Mr. Utz, who did speak to Mr. Roosevelt Faison, first telling him, "It's just slow business, and we're just cutting back," (T.129) then referring him to Willie Barr, who was not at work that day. The next day, when Roosevelt Faison spoke to Mr. Barr by telephone, Mr. Barr rescinded the lay-off. Although he had not recommended the lay-off, (T.277) Mr. Barr had written the note to Mr. Faison ("on Roosevelt's time card" T.305) at Mr. Utz's behest. T.307. Mr. Roosevelt Faison did not work that week, but he was paid for a half day (presumably because he had come in Monday.) He resumed working his wonted Mondays and Tuesdays the following week. McCants Charlie McCants, who is black, went to work for respondent or a predecessor in interest in 1959 in the deer park, feeding and otherwise taking care of the animals there. He also mended fences and did other maintenance, until his transfer in 1985 to the wildlife section of the attraction. There he did much the same thing, although for different animals, among them giraffes, to whom he had to give shots. He was paid the same thing in the wildlife section as he was making in the deer park before the transfer, although he never supervised anybody in the wildlife section, as he once did for a while in the deer park, without actually holding a supervisor's position. He and Bill White, who is white, were relocated at the same time. Management felt they had both become too often hard to find in the deer park. Emma Hawkins Emma Hawkins began work at Silver Springs in the food and beverage department in May of 1974. In September of 1976, she resigned to go to junior college, but she returned to her job in November of 1977, and was promoted the following month to lead. She was promoted a second time -- to unit coordinator -- in March of 1979, and a third time -- to supervisor -- in August of the same year. She viewed her transfer in February of 1990 to the food and beverage department at Wild Waters as a fourth promotion. T.185, 198. She did not, however, receive every promotion for which she applied. She was passed over in favor of another black person for a job "managing the warehouse," (T.188, 489) and lost out, again to another black applicant, when she applied for an administrative position in the front office. T.188, 489. In January of 1989, she received the last in a series of merit pay raises. More than once, she applied unsuccessfully to become assistant manager of the food and beverage department. The last time she applied to be assistant manager of the food and beverage was the spring of 1989. T.188. The position remained open until Shari Wynkoop, a white woman who had not previously worked at Silver Springs, began as assistant manager of the food and beverage department on June 28, 1990. T.479. At the time of her transfer to Wild Waters, Ms. Hawkins had charge of a restaurant at Silver Springs, The Outback, where she supervised some 20 employees, more in the summertime. T.299-301. At Wild Waters, she had responsibility for five food facilities and up to 50 employees. Id. She had "charge of hiring, firing, inventory purchasing, schedules, supervising, cooking, [and] cash control." T.186. At least after the transfer, many of the assistant manager's duties devolved on Ms. Hawkins, until Ms. Wynkoop took over. A few months before the transfer, Robert Santillana, the food and beverage director, had given Ms. Hawkins a written reprimand because Tina Balboni, whom she supervised, had been permitted to work with "NO HAT, SCARF OR NAME TAG." Petitioner's Exhibit No. 8. On a "CAST MEMBER COUNSELING FORM," Mr. Santillana warned that another such dereliction would result in further counseling. Id. Money Bags The Wild Waters operations manager's morning routine included a trip from Silver Springs to Wild Waters with locked bags full of cash for the various Wild Waters cash registers. He put the money bags needed for the operations Ms. Hawkins supervised in a milk crate in his office. She usually took the crate herself from there to her office in the back of the Surf's Up restaurant, before distributing the money to cashiers. Ms. Hawkins had a door lock installed -- there was none when she started at Wild Waters -- but she did not always lock her office door. An electronic timing device for one of the water slides at Wild Waters was located in her office, and the operations manager needed access to reset the timer. She spent a certain amount of time out of her office but in close proximity. Ms. Hawkins was told on her return (after two days off) to work on or about August 10, 1990, that $98.16 had not been accounted for on or about the evening of August 8, 1990, and that a cashier had quit the day after the loss was discovered. She relayed this information to Mr. Santillana, who did not seem particularly concerned at the time. But Mr. Santillana gave her a written reprimand when, sometime within a few days of August 8, 1990, approximately $400 was taken from an unlocked money bag a cashier left in her unlocked office, in violation of prescribed procedure and apparently without Ms. Hawkins' knowledge. This loss occurred on a Friday. Mr. Santillana, who did not learn of it until the following Monday, was angry that Ms. Hawkins had not succeeded in reaching him over the weekend. She had standing instructions to report major losses to him as soon as possible. On August 16, 1990, he and Ms. Wynkoop went to Ms. Hawkins' office and found it unlocked. Nobody was in the office, but a milk crate full of money bags was in plain sight. He went straight to the front of the restaurant and asked Ms. Hawkins to come to his office the following day. Later he wrote a memorandum, memorializing his findings on August 16, 1990, recounting the loss a week or so before of $98.16, and terminating her employment. August 16, 1990, was the last day Ms. Hawkins' worked for respondent. Ms. Hawkins was not the first to lose a job with respondent for (apparent) failure to abide by prescribed cash handling procedures. On occasion employees were discharged for a single (apparent) breach of such procedures. Ms. Hawkins (who had not yet clocked in when Mr. Santillana accosted her on the morning of August 16, 1990) noticed that a trusted employee had a good view of her office door, but did not bother to check whether it was locked, before going to help elsewhere in the facility, where she was needed.
Recommendation It is, accordingly, RECOMMENDED: That FCHR enter a final order denying the petition for relief. That FCHR enter a final order denying the petition to intervene. DONE and ENTERED this 30th day of November, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 30th day of November, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1-10, 15, 16, 17, 18, 21, 24, 25, 32, the first two sentences of No. 33, Nos. 34, 35, 57, 58, 63, 64, 65, 69- 74, 77-82, 84, 86, 87, 90-93, 95, 98, 99, 100, 105-112, 115, 116, 117, 120-124, 127, 129, 130, 131, 132, 134, 138 and 139 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 11, the CEO was Jim Schorr. Petitioner's proposed findings of fact Nos. 12, 13, 14, 20, 22, 26, 28-31, 59-62, 66, 67, 68, 76, 83, 85, 88, 89, 94, 102, 103, 104, 118, 119, 126, 128, 135, 136, 140, 143 and 144 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 19, the weight of the evidence established that petitioner did not give the warning on June 20, 1989. With respect to petitioner's proposed findings of fact Nos. 23, 36, 37, 96, 97, 101, 125 and 142, the witnesses testified as reported. Petitioner's proposed findings of fact No. 27, the last sentence, of No. 33, Nos. 75, 113 and 141 have been rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed findings of fact Nos. 36-56, the case has been decided on the assumption, pro hac vice, that race discrimination did take place at some point. With respect to petitioner's proposed finding of fact No. 114, the transfer occurred in February. With respect to petitioner's proposed finding of fact No. 137, she had not been performing as assistant manager for ten years. Respondent's proposed findings of fact Nos. 1 through 5 pertain to the procedural posture of the case, apart from evidence adduced at final hearing. Respondent's proposed findings of fact Nos. 6-8, 12-15, 17-20, the first sentence of No. 21, Nos. 25, 27, 28, 31-34, 36, 37, 39-47, 49-56, 60, 61, 62, 64, 67, 69-75 and 76 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 9, 10 and 11, it is not clear whether Faison was present and heard Mr. Schorr's remarks, or that he was ever told of any deadline. With respect to respondent's proposed finding of fact No. 16, it is not clear whether FLAC intended not to hide the fact that one of its employees was videotaping petitioner. With respect to the last sentence of paragraph No. 21 and Nos. 22, 23 and 24, petitioner was fired for perceived refusal to use the script, whether or not he had time enough to learn it. Respondent's proposed findings of fact Nos. 26, 29, 30, 35, 38, 48, 58, 63, 77, 78 and 79 pertain to subordinate matters. Respondent's proposed finding of fact No. 57 is interally inconsistent. With respect to respondent's proposed finding of fact No. 59, it is unnecessary to decide this question in order to decide the case. With respect to respondent's proposed finding of fact No. 65, the position was filled on June 28, 1990. With respect to respondent's proposed finding of fact No. 66, see paragraphs 46-51 the findings of fact. With respect to respondent's proposed finding of fact No. 67, the evidence was in equipoise on the question of where Ms. Hawkins was when the loss was discovered. COPIES FURNISHED: Mary C. O'Rourke P. Kent Spriggs Spriggs and Johnson West College Avenue Tallahassee, FL 32301 Loren E. Levy Bruce Kaster Cove, Green and Kaster P.O. Box 2720 Ocala, FL 32678 Margaret Jones, Clerk Commission on Human Relations John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Lewis E. Shelley 117 S. Gadsden Street Tallahassee, Florida 32302
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a challenge by petitioners, Organized Fishermen of Florida, Inc., Southeastern Fisheries Association, Inc., Seafood Consumers and Producers Association, Inc., Glen Black, Ronald E. Black, Henry Crane, Dewey Destin, Cecil Lane, Denise Leek, Gerald Pack, Harold Raffield, Richard Van Munster, D. W. Wilson, Tim Adams, Johnnie Clopton, Geoffery Cox, Mike Davis, Ronnie Day, Tim Dixon, Bob Gill, Tim Gerz, Tim Goodrich, and Mark Taylor (petitioners), to the validity of certain changes to forty-seven rules proposed by respondent, Marine Fisheries Commission (MFC or agency). According to paragraphs 5 through 27 of their amended petition, which are not contested, petitioners are incorporated associations of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, as well as individual commercial fishermen, fish and bait dealers, owners of seafood unloading facilities, processors, packers and producers, all of whom are substantially affected by the proposed rules. As such, they have standing to bring this action. The changes being proposed by the MFC affect various rules in Chapters 46-3, 46-4, 46-23, 46-24, 46-36, 46-37, 46-39, 46-42 and 46-43, Florida Administrative Code. The rule changes were proposed as a result of the adoption by the electorate on November 8, 1994, of Article X, Section 16 to the State Constitution. That section generally (a) prohibits the use of gill or entangling nets to take marine animals, and (b) places limitations on other nets in nearshore and inshore Florida waters. The amendment becomes effective July 1, 1995. On December 30, 1994, the agency published notice in the Florida Administrative Weekly (FAW) of its intent to adopt new rules, amend certain rules, and repeal all or portions of other existing rules. Claiming that these changes were invalid on a variety of statutory grounds, petitioners filed a petition to invalidate proposed rules on January 20, 1995. On March 3, 1995, a notice of changes to proposed rules was published in the FAW advising that, "based on written comment and public testimony" given at public hearings, further changes, albeit minor, were being made to rules 46- 3.008, 46-3.029, 46-4-001, 46-4.002, 46-4.004, 46-4.005, 46-23.003, 46-36.002, 46-37.002, 46-37.006, 46-39.002, 46-42.007, and 46-43.005. By virtue of these changes, petitioners were authorized to file an amended petition which contains essentially the same contentions as were previously pled. They include allegations that the rules are an invalid exercise of delegated legislative authority because (a) the MFC failed to materially follow the applicable rulemaking procedures in Section 120.54(2)(b), Florida Statutes, by failing to provide them a copy of the Economic Impact Statement (EIS) on each of the rules at least 14 days prior to the public hearing, (b) the MFC failed to materially follow the procedures in Rule 46-1.004(4), Florida Administrative Code, by not allowing public testimony at the final rule adoption hearing, (c) the proposed rules have no foundation in statutory law but rather are derived from the Florida Constitution and thus exceed the MFC's delegated legislative authority, (d) the proposed rules are arbitrary and capricious because they are based on law enforcement considerations and lack scientific certainty, (e) the rules conflict with the law implemented, and (f) as to twelve of the rules, the MFC failed to materially follow an applicable rulemaking procedure in Rule 46- 1.004(5), Florida Administrative Code, which requires that, before amending or repealing any rule derived from local laws, a public hearing be held in each affected county. In conjunction with their claims that the rules exceed the agency's rulemaking authority or are arbitrary and capricious because of law enforcement considerations, petitioners have rarely cited the specific language in the rules that they wish to be invalidated. Rather, they suggest that the entire rule is invalid. Therefore, the undersigned has been forced to undertake the tedious and difficult task of attempting to identify the allegedly offensive language in each of the challenged rules. Where the offending language cannot be readily identified, or speculation is required to identify that language, the contention has been rejected. The Rules and Their Genesis As noted above, on November 8, 1994, the electorate adopted Article X, Section 16 of the Florida Constitution. The new section, which is entitled "Limiting Marine Net Fishing," has a stated purpose of "enact(ing) limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing, and waste." More specifically, subsection (b) of section 16 provides as follows: (b) For the purpose of catching or taking any saltwater finfish, shellfish, or other marine animals in Florida Waters: No gill nets or other entangling nets shall be used in any Florida waters; and In addition to the prohibition set forth in 1., no other type of net containing more than 500 square feet of mesh area shall be used in nearshore and inshore Florida waters. Additionally, no more than two such nets, which shall not be connected, shall be used from any vessel, and no person not on a vessel shall use more than one such net in nearshore and inshore Florida waters. Paragraphs 1.- 5. of subsection (c) go on to define the terms "gill net," "mesh area," "coastline," "Florida waters" and "nearshore and inshore Florida waters," while subsection (d) exempts from the application of the provision the "use of nets for scientific research or governmental purposes." Subsection (f) provides that "implementing legislation is not required for enforcing any violations hereof," and that "nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine animals." Consistent with subsection (f), the legislature has not enacted any implementing legislation for the purpose of enforcing the new amendment. Also, the MFC has cited a proposed effective date for the rules of July 1, 1995, which coincides with the effective date of the new amendment. In the notice published in the FAW, the MFC stated that "the constitutional provision effectively changes the direction of marine fisheries regulation in the state." In general terms, the MFC proposed the numerous changes, additions and repeal of rules to conform the rules "to this new direction," to remove the provisions that were obsolete or in conflict with the new constitutional provision, and to enhance its ability to enforce the new amendment. According to the MFC's executive director, the constitututional amendment "will have a very significant impact on the historical means and methods of commercial, . . . recreational and subsistence fishing in Florida." As specific authority for making every change, the MFC cites Subsection 370.027(2), Florida Statutes, which grants the MFC "exclusive rulemaking authority (in ten areas) relating to marine life," including gear specifications, prohibited gear, closed areas and seasons. As to the rules in chapter 46-3, the MFC also cites as rulemaking authority Section 2, Chapter 83- 134, Laws of Florida, as amended by Chapter 84-121, Laws of Florida. For those rules being modified in chapter 46-4, the MFC additionally relies upon the new constitutional amendment. For the affected rules in chapter 46-23, the agency further identifies as its authority for rulemaking Subsection 370.01(20), Florida Statutes, which authorizes the MFC to include within the term "restricted species" such species of saltwater products as the MFC deems necessary. As the law implemented for all rule changes, the MFC cites Sections 370.025 and 370.027, Florida Statutes. The former statute generally authorizes the MFC to adopt rules to further the state policy of managing and preserving renewable marine fishery resources while the latter statute delegates to the MFC "full rulemaking authority over marine life." The MFC further cites the Florida Constitution as the law implemented for rules in chapter 46-4, and for chapter 46-3 it cites Chapters 83-134 and 84-121, Laws of Florida. In broad terms, the rule chapters in issue cover a wide range of subject matter within the MFC's regulatory jurisdiction over marine fisheries resources, including local laws which have been reenacted as rules governing marine fishing in all or parts of thirteen counties (chapter 46-3), gear specifications and prohibited gear (chapter 46-4), and regulations pertaining to the harvest of spanish mackerel (chapter 46-23), spiny lobster (crawfish) and slipper lobster (chapter 46-24), blackdrum (chapter 46-36), spotted seatrout (chapter 46-37), marine life (chapter 46-42), and bluefish (chapter 46-43). The constitutional amendment does not prohibit the possession of gill or entangling nets. Rather, it prohibits the use of such nets in Florida waters. Thus, it is still permissible for Florida fishermen to use this gear in federal waters which lie outside of Florida waters. In addition, the amendment prohibits the use of any type of net "containing more than 500 square feet of mesh area . . . in nearshore and inshore Florida waters" but contains no limitations for nets below that threshold size. Within the context of petitioners' objections, it is noted that the proposed rule amendments fall into two broad categories: those which delete obsolete or conflicting language in order to conform existing rules to the new amendment, and those which add more restrictive measures than are contained in the new amendment. While petitioners contend that all of the proposed rules are invalid, their principal attack is directed at the more restrictive amendments. For example, the latter group of rules prohibits (a) the possession of a gill net in state waters, (b) the possession of a gill or entangling net aboard a vessel in state waters at the same time a cast net is on the same vessel, (c) the use of two nets from the same vessel in nearshore and inshore waters, (d) the use of purse seine nets under 500 square feet, (e) the use of a bailer net in Volusia County, (f) the use of a trawl for any purpose other than the harvest of shrimp, and (g) the use of purse seines of any size in Escambia and Santa Rosa Counties. None of these activities is prohibited by the new constitutional amendment. Do the Rules Exceed the MFC's Rulemaking Authority? Petitioners contend that all of the proposed rules "have as their exclusive foundation the adoption by referendum of Art. X, Sec. 16 of the Constitution of the State of Florida," and thus they "have no foundation in the criteria established by Ch. 370.025 et seq. for the adoption of rules by the (MFC)." As a consequence, petitioners essentially contend that the MFC has exceeded its delegated legislative authority by relying upon a constitutional provision, rather than statutory law, as the source of authority for its rulemaking. At the same time, they contend that the MFC exceeded its rulemaking authority by adopting a number of rules, all containing more restrictive measures than are found in the constitutional amendment, based solely on law enforcement considerations, rather than on its statutory charge of managing and preserving renewable marine fisheries resources. Similarly, they contend that the more restrictive rules are arbitrary and capricious because they are based on law enforcement considerations. This contention, however, is dealt with in a separate part of this order. As noted earlier, the MFC cites Subsection 370.027(2), Florida Statutes, as the source of its rulemaking authority for each of the rules. That subsection vests in the MFC "exclusive rulemaking authority (in ten areas) relating to marine life," including gear specifications, prohibited gear, closed areas and seasons. For rules in chapter 46-4, the MFC has cited the new constitutional provision as an additional source of authority. Finally, as to the rules in chapter 46-3, the MFC also relies on Section 2 of Chapter 83-134, Laws of Florida, as amended by Chapter 84-121, Laws of Authority. All of the rule changes generally pertain to the areas of gear specifications, prohibited gear, closed areas and seasons, each of which is within the "exclusive rulemaking authority" of the MFC. In this broad sense, they are derived from MFC's statutory authority under Subsection 370.027(2), Florida Statutes, and thus they arguably fall within the scope of the organic law. Petitioners contend, however, that the MFC exceeded its rulemaking authority by making law enforcement considerations a basis, at least in part, for adopting the more restrictive rules. Petitioners assert that there in nothing in Chapter 370, Florida Statutes, which allows the MFC to take into account law enforcement issues when engaging in rulemaking. In this regard, respondent concedes through testimony, as corroborated by documentation received in evidence, that the more restrictive rules were crafted for the sole purpose of "facilitat(ing) the most cost effective and efficient enforcement on the prohibition of use (of prohibited gear)." In other words, while the new amendment did not require these more restrictive terms, the MFC nonetheless proposed the rule changes in order to make the Florida Marine Patrol's (FMP) job of enforcing the ban on prohibited gear less "costly" and more "efficient." One of the statutes relied upon by the MFC as the source of its rulemaking authority is Section 370.027, Florida Statutes. Among other things, subsection (1) thereof provides that "(a)ll administrative and enforcement responsibilities which are unaffected by the specific provisions of this act continue to be the responsibility of the department (of environmental protection)," of which the FMP is a part. Although Section 370.028, Florida Statutes, provides that "any law enforcement officer certified pursuant to s. 943.13" shall have the responsibility of enforcing the rules of the MFC, it is clear that the FMP has the primary responsibility of enforcing the new restrictions imposed by the constitutional amendment. The principal statutory charge of the MFC is to manage and preserve renewable marine fisheries resources. The MFC has no specific statutory authority to enact rules solely for the purpose of allowing more "cost- efficient, effective" enforcement of its regulations by another agency, and its executive director readily acknowledges that the agency has no role in enforcing its regulations from a law enforcement perspective. The purpose of the constitutional amendment is to protect marine animals from "unnecessary killing, overfishing and waste." By its own terms, then, the intent of the amendment is to preserve and protect Florida's existing and future fishing stocks. The amendment should achieve its goal, for the record shows that, once the amendment becomes effective, there should be a significant reduction in fishing mortality, with a concomitant rise in fishing stocks. Under Section 370.025, Florida Statutes, the MFC is charged with a similar responsibility of managing and preserving marine fishery resources. The evidence clearly shows that the more restrictive rules will have no meaningful effect on fishing mortality. That is to say, this category of rules has been proposed, not to further the MFC's charge of managing and preserving marine fisheries resources, but rather for the sole purpose of assisting another agency (the FMP) in enforcing the ban on the use of gill or entangling nets in Florida waters, and the use of certain nets in nearshore and inshore waters. As such, the more restrictive rules have no foundation in statutory law, and they exceed the MFC's rulemaking authority. For this reason, the following proposed rules or parts thereof are deemed to be an invalid exercise of delegated legislative authority: the last sentence in 46-3.008(3)(c)3.; 46-3.028(3); 46-3.029(3); 46- 3.031(3); 46-3.032(3)(a); 46-3.034(3); 46-3.035(3); 46-3.037(3); 46-3.038(3); 46-4.001(1)(b); the sentence in 46-4.001(1)(c)3. which reads as follows: "(t)he exceptions provided in this paragraph are not available to a person aboard any vessel on which is also possessed a cast net"; the word "trawl" in 46- 4.001(2)(e); 46-4.001(2)(c)5.; 46-4.001(3); 46-4.004; 46-4.005(2)(a)3.; 46- 23.002(2); the first sentence in 46-23.003; 46-24.007(5); 46-37.002(2); 46- 37.006(2) and (3); 46-39.002(3); and 46-42.007(1)(b) and (c). Because the record supports a finding that the changes to rules 46-4.007, 46-4.015, 46- 4.017, 46-36.002, 46-39.011, 46-39.012, and 46-43.005 do not impose more restrictive conditions than are found in the new amendment, and are derived from appropriate statutory law, the contention that they exceed the MFC's rulemaking authority is deemed to be without merit. Are the Rules Arbitrary and Capricious? In their amended petition, petitioners also contend that all of the rules affected by these changes are arbitrary and capricious. In this vein, they contend that the rules "are not grounded in logic and reason and are not supported by appropriate scientific certainty." They also claim that where the MFC has exceeded the mandate of the constitution, the rules are arbitrary and capricious in the sense they are not grounded on a rational or logical basis since they stem from MFC's desire to ease the FMP's job in enforcing the new amendment rather than its desire to further the goal of managing and preserving the marine fishery stocks in Florida. The record on which the MFC based its changes was derived in part from public hearings conducted in three locations around the state. At those hearings, it heard comment from its staff, numerous affected persons, including those who oppose and support the proposed rules, as well as FMP representatives who are charged with the responsibility of enforcing the new law. In addition, during the rulemaking process, MFC and FMP staffers consulted with the State of Texas, which has a similar ban on the use of entangling net gear, to gain an insight on any enforcement problems which that state experienced. Thereafter, the MFC staff prepared an analysis of the public comment, together with their own recommendations, which were considered by the MFC prior to its final decision. Copies of the staff reports and analyses have been made a part of this record. The more restrictive rules and law enforcement considerations Before adopting any rule, the MFC says it always consults with, and obtains advice from, the FMP regarding enforcement implications. Thus, in crafting its more restrictive rules, the MFC relied wholly upon the recommendation of the FMP, which has the responsibility of enforcing the law. The FMP in turn relied upon the experience of the State of Texas, which first imposed a statutory ban on the use of nets in 1988, and later imposed a statutory ban on the possession of nets in order to provide more effective enforcement. Based on advice from the FMP that, without more restrictive measures, it would experience the same problems as did Texas, the MFC decided that a ban on the possession of nets would be necessary in order to permit a more efficient enforcement of the new amendment. Indeed, it did so even though the FMP's chief law enforcement officer acknowledged that the FMP can enforce the new constitutional amendment without the MFC adopting any new rules. Except for this advice from the FMP during the rulemaking process, there is no other basis in fact or logic to support the broad and sweeping revisions. Therefore, while the more restrictive rules are designed to ease the job of law enforcement officials, and thus in that respect they have some logical and rational basis from a law enforcement perspective, they nonetheless have no correlation to the MFC's task of managing and preserving marine fisheries resources. Given this lack of a factual and logical predicate, the following proposed rules or parts thereof are deemed to be an invalid exercise of delegated legislative authority: the last sentence in 46-3.008(3)(c)3.; 46-3.028(3); 46-3.029(3); 46-3.031(3); 46-3.032(3)(a); 46-3.034(3); 46-3.035(3); 46-3.037(3); 46-3.038(3); 46- 4.001(1)(b); the sentence in 46-4.001(1)(c)3. which reads as follows: "(t)he exceptions provided in this paragraph are not available to a person aboard any vessel on which is also possessed a cast net"; the word "trawl" in 46- 4.001(2)(e); 46-4.001(2)(c)5.; 46-4.001(3); 46-4.004; 46-4.005(2)(a)3.; 46- 23.002(2); the first sentence in 46-23.003; 46-24.007(5); 46-37.002(2); 46- 37.006(2) and (3); 46-39.002(3); and 46-42.007(1)(b) and (c). Because the record supports a finding that the changes to rules 46-4.007, 46-4.015, 46- 4.017, 46-36.002, 46-39.011, 46-39.012, and 46-43.005 do not impose more restrictive conditions than are found in the new amendment, the contention that they are arbitrary and capricious on account of law enforcement considerations is deemed to be without merit. The other rules Petitioners also contend that the rules are arbitrary and capricious because they "are not grounded in logic and reason and are not supported by appropriate scientific certainty." Each of the affected chapters will be discussed separately. Chapter 46-3 Chapter 46-3 contains provisions governing fishing in Lee, Volusia, Collier, Duval, Escambia, Santa Rosa, Hernando, Manatee, Martin, Pinellas, Sarasota, Walton and Brevard Counties. When the MFC was statutorily created as a part of the Department of Natural Resouces (DNR) in 1983, there were numerous local laws in existence having special application to these counties. The law which created the MFC directed that these local laws be repealed and reenacted as DNR rules. Some of these were codified in chapter 46-3. As changes to organic law occur, the MFC must logically amend these "local" rules to conform them to statewide requirements. According to the notice published in the FAW, the "purpose of these rule amendments (in chapter 46-3) is to conform the Marine Fisheries Commission's rules readopting portions of various special acts (local laws) to this new direction by deleting numerous local netting regulations and amending other provisions relating to gear still allowed by the constitutional provision." The notice added that "the effect of this rulemaking will be to eliminate many obsolete local rules and implement the constitutional provision's uniform regulatory regime." Affected by the proposed changes are rules 46-3.002, 46-3.008, 46- 3.025, 46-3.027, 46-3.028, 46-3.029, 46-3.031, 46-3.032, 46-3.034, 46-3.035, 46- 3.037, and 46-4.038. Each of these rules contains requirements unique to a particular county or waterbody within a county. They include seasonal restrictions on the use of nets other than cast nets and bait seines (Caloosahatchee River in Lee County, rule 46-3.002); restrictions on the use of gill nets (Volusia County, rule 46-3.008); minimum mesh size for gill nets and other gear (Lee, Collier and Duval Counties, rules 46-3.025 and 46-3.027); minimum mesh size for gill or trammel nets, a special management regime for purse seine harvest of menhaden in inside waters, and a minimum length for seines (Santa Rosa and Escambia Counties, rule 46-3.028); minimum mesh sizes for gill or trammel nets and maximum lengths for nets (Hernando County, rule 46- 3.029); restrictions on net fishing and a minimum gill net mesh size (Manatee River and Terra Ceia Bay in Manatee County, rule 46-3.031); restrictions on allowable nets and traps for inside waters (Martin County, rule 46-3.032); minimum mesh size for gill and trammel nets (Pinellas County, rule 46-3.034); miminum mesh size for gill and trammel nets (Sarasota County, rule 46-3.035); minimum seine length (Walton County, rule 46-3.037); and restrictions on the use of nets and seines (Brevard County, rule 46-3.038). All of the rules in chapter 46-3 have been amended in some respect to delete language made obsolete by the constitutional amendment. More specifically, the existing rules provide an array of requirements relative to the use of gill or entangling nets in the various counties which are clearly at odds with the amendment. Wherever this language appears, or where other obsolete local rules are present, they have been deleted since the use of such gear will no longer be allowed anywhere in the state after July 1, 1995. On this basis alone, and to the extent the changes do nothing more than delete obsolete or conflicting language, it is found that the changes in rules 46- 3.002, 46-3.008, 46-3.025, 46-3.027, 46-3.028, 46-3.029, 46-3.031, 46-3.032, 46- 3.034, 46-3.035, 46-3.037 and 46-4.038 have a factual and logical basis and are not arbitrary and capricious. Chapter 46-4 This chapter is entitled "Gear Specifications and Prohibited Gear." As stated in the FAW, the purpose of the changes is "to implement new prohibitions and specifications to enhance enforcement of the (constitutional) amendment, and provide guidance to Florida citizens in complying with the requirements of the new provision." In new rule 46-4.001, the FMC prescribes new limitations on marine net fishing. More specifically, it prohibits the use of any gill or entangling net to harvest any marine species in state waters, prohibits possession of nets on the waters of the state except for those persons who have a legitimate need for legal harvest elsewhere, prohibits the use of any net in nearshore or inshore Florida waters to harvest marine species other than certain equipment of specified dimension, prohibits the use of any purse seine in nearshore and inshore Florida waters, and provides an exception for nets fished pursuant to a special activities license issued for public or scientific purposes. Rule 46-4.002, which contains gear definitions, provides new or amended definitions of the terms "entangling net," "gill net," and "mesh area," and repeals the definition of an "airboat." At the same time, rule 46-4.0025, which contains other definitions, provides new or amended definitions for the terms "coastline," "Florida waters," "harvest," and "nearshore and inshore Florida waters." According to the FAW, these changes make the definitions "consistent" with the new constitutional amendment. In proposed rule 46-4.004, as later modified in the notice of changes to proposed rules, the MFC expands the scope of the rule banning the use of certain gear with power to include nearshore and inshore waters. As to rule 46-4.005, it is unclear from the record whether the changes regarding the issuance of a special activities license first proposed in paragraph (2)(a)3. were later eliminated by the notice of changes to proposed rules. Assuming they were not, the revisions to the remaining part of the rule simply substitute the word "governmental" for "public" and redesignate the Department of Natural Resources as the Department of Environmental Protection. The MFC has also proposed to repeal rules 46-4.006, 46-4.007(1)and (3), 46-4.008(1)-(4), 46-4.0081, 46-4.0085, 46-4.015(1), 46-4.016, and 46- 4.017(1) and (5). The MFC says these changes are required in order to eliminate obsolete language, some of which is derived from special laws. Finally, the minor changes in rules 46-4.013 and 46-4.014 prohibit the use of spotter planes in harvesting Spanish mackerel and prescribe gear specifications for using purse seines in certain waters of Pinellas, Hillsborough and Manatee Counties, respectively. These changes have been made in order to conform the rules to what the MFC perceives to be existing law. Where the above revisions simply delete obsolete or conflicting language, or make other changes which are not more restrictive in nature, as described in finding of fact 24, there is a sufficient record basis to support a finding that the amendments are grounded in fact and logic and are thus not arbitrary and capricious. Chapter 46-23 This chapter governs the harvest of fishing for Spanish mackerel. By the rule changes, the MFC proposes to prohibit the commercial harvest of this species of fish in state waters by gill nets after July 1, 1995, and to allow only hook and line gear to be thereafter used. Specific changes have been made to rules 46-23.001, 46-23.002, 46- 23.003 and 46-23.004 to eliminate all reference to gill nets, and to describe other restricted activities relating to this species. To the extent these changes do not create more restrictions than are found in the new amendment, as more specifically described in finding of fact 24, they conform to the new law and will ease the fishing pressure exerted on Spanish mackerel. Because the changes in chapter 46-23 enhance the state policy of preserving marine fishery resources, there is insufficient evidence to support a finding that they are arbitrary and capricious. Chapter 46-24 Chapter 46-24 governs the harvest of Spiny Lobster (Crawfish) and Slipper Lobster. The only rule affected by the changes is rule 46-24.007, which has been amended to specify the maximum size of bully nets and hoop nets used in the spiny lobster fishery. More specifically, the changes in subsection (5) of the rule limit bully nets to a diameter no larger than 3 feet while hoop nets are limited to a diameter no larger than 10 feet. Because the only change has been previously found to be arbitrary and capricious, the additional argument that the rule lacks "scientific certainty" need not be addressed. Chapter 46-36 This chapter, which relates to Black Drum, is amended in one respect by changing language in rule 46-36.002(2) to delete reference to nets and seines in the definition of the term "commercial harvest." Because the change is necessary to conform the rule with the new amendment, and there will be no appreciable change in the number of fish that can be caught, there is a sufficient factual predicate to support the change. Chapter 46-37 This chapter specifies regulations pertaining to the harvest of spotted seatrout. Only two rules are affected, those being rules 46-37.002 and 46-37.006. According to the FAW, the effect of the changes will be to "clearly indicate that hook and line gear is the only allowable gear for the harvest of spotted seatrout and that spotted seatrout harvest in excess of recreational bag limits will be considered commercial harvest after (the constitutional amendment) become(s) effective July 1, 1995." The only change in rule 46-37.002 is found in section (2), which defines the term "harvest for commercial purposes." There, the MFC has proposed to delete reference to the use of nets. In addition, sections (2) and (3) of rule 46-37.006 have been amended to delete all gill and trammel net mesh size requirements. Since both changes exceed the constitutional mandate and are based solely on law enforcement considerations, and have already been determined to be arbitrary, it is unnecessary to address petitioners' remaining contentions. Chapter 46-39 Chapter 46-39 governs the harvest of mullet, which has traditionally been a gill net fishery. All or parts of rules 46-39.002, 46-39.0035, 46- 39.005, 46-39.006, 46-39.007, 46-39.008, 46-39.009, 46-39.010, 46-39.011 and 46- 30.012 have been amended or repealed to conform these rules to the new amendment. More specifically, the species will now be available to a limited extent only through the use of cast nets, and thus all provisions pertaining to gill net specifications, spotter planes, daily vessel limits, and weekend closures and other closed seasons have been deleted. To the extent these rules do not exceed the constitutional mandate, as previously discussed, they are based on facts and logic and are not arbitrary or capricious. Chapter 46-42 This chapter pertains to the broad subject of "Marine Life." As stated in the FAW, the purpose of the single rule amendment is to "specify the maximum size of barrier nets and drop nets used to harvest tropical fish." Rule 46-42.007 provides gear specifications for the harvest of tropical fish. Paragraphs (1)(b) and (c) have been amended to establish a maximum length for barrier nets of 60 feet, with a maximum depth of 8 feet, and a maximum dimension of 12 feet for drop nets. Because these changes have been previously found to be arbitrary and capricious by virtue of being based solely on law enforcement considerations, it is unnecessary to determine if they are arbritrary and capricious for other reasons. Chapter 46-43 The final chapter being amended governs the bluefish harvest and changes one rule "to provide gear specifications to apply to the commercial harvest of bluefish in the federal Exclusive Economic Zone (EEZ) waters adjacent to east coast Florida waters in the Atlantic Ocean, in accordance with the Fishery Management Plan for the Bluefish Fishery . . . as implemented through federal rules." Specifically, subsection (2) of rule 46-43.005 has been amended to delete references to current statewide gear rules and provide new net gear requirements applicable to commercial bluefish harvest in federal waters adjacent to Florida east coast waters, including tending requirements, net marking specifications, maximum net length and minimum mesh size, and soak requirements. The new language also allows only one net to be fished at a time from a single vessel, but allows possession of a maximum of two nets, including the one being fished. Finally, the term "net" is defined to exclude purse seines. These changes apply only to the bluefish fishery in adjacent federal waters which are subject to Florida rulemaking by virtue of an interstate compact. The proposed changes have been approved by the Atlantic States Marine Fisheries Commission, are necessary in order for Florida to meet its state quota under the compact, and have a basis in fact and logic. Accordingly, the rule changes are not found to be arbitrary or capricious. Do the Rules Conflict with the Law Implemented? Petitioners further allege that the proposed rules conflict with the law implemented. More specifically, they have alleged that the proposed rules do not conform with the criteria established in Section 370.025, Florida Statutes, one of the two statutes relied upon by the MFC as the law implemented for all rules. Subsection (1) of the law declares that the state policy of managing and preserving its renewable marine fishery resources shall be based upon the best available information, emphasizing protection and enhancement of the marine and estuarine environment in such a manner as to provide for optimum sustained benefits and use to all the people of this state for present and future generations. Subsection (2) requires that all rules adopted by the MFC relating to saltwater fisheries be consistent with the following standards: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Conservation and management measures shall be based upon the best information available, including biological, sociologi-cal, economic, and other information deemed relevant by the commission. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis. When possible and practicable, stocks of fish shall be managed as a biological unit. Conservation and management measures shall assure proper quality control of marine resources that enter commerce. State marine fishery management plans shall be developed to implement management of important marine fishery resources. Conservation and management decisions shall be fair and equitable to all the people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of privileges. Federal fishery management plans and fishery management plans of other states or interstate commissions should be considered when developing state marine fishery management plans. Incon- sistencies should be avoided unless it is determined that it is in the best interest of the fisheries or residents of this state to be inconsistent. To show conformity with the above standards, the MFC staff prepared a document entitled "Adherence to Commission Standards" for each of the affected chapters. These documents, which are a part of the rule file, are found in respondent's exhibit 1 received in evidence, and they were considered by the MFC as a part of the rulemaking process. They provide an analysis on how the proposed rules comply with the standards enumerated in subsection 370.025(2), to the extent such standards are applicable. This analysis was not credibly contradicted at hearing. In their proposed order, petitioners focus principally on the rules in chapter 46-4, which relate to gear standards and specifications, and contend these rules are illustrative of the fact that none of the rules are consistent with the statutory standards. As to whether the changes in all of the chapters are consistent with the criteria in Subsection 370.025(1), Florida Statutes, the rule changes were based on oral and written comments from laypersons, law enforcement personnel and experts and thus were based on the best available information. In addition, many of the changes were necessary by virtue of the constitutional amendment, and to this extent, they protect and enhance the marine environment for the benefit of all present and future generations. Accordingly, they are found to be consistent with the criteria in Subsection 370.025(1), Florida Statutes. As to whether the changes in chapter 46-4 are consistent with the standards in Subsection 370.025(2), Florida Statutes, the MFC's analysis indicates they "reduce fishing mortality on most inshore finfish species" and do not "jeopardize the health or abundance of inshore finfish stocks" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], eliminate obsolete provisions and "allow for alternative gear fisheries to develop after the new constitutional provision becomes effective" [paragraph (c)], "complement and affect the provisions of already developed management plans" and "maintain consistency" [paragraph (f)], "apply equally to all persons" [paragraph (g)], and "are consistent as possible with federal management plans" [paragraph (g)]. The standards in paragraphs (d) and (e) do not apply. Given these considerations, it is found that the rule changes in chapter 46-4 are consistent with the criteria and standards in Subsection 370.025(2), Florida Statutes. In a similar vein, the rule changes in chapter 46-23 "affect a reduction in fishing mortality on Spanish mackerel in state waters" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], allow the species to "continue to be available to commercial harvesters in state waters with hook-and-line and cast net gear" [paragraph (c)], conduct the management of the species "on the unit stock" [paragraph (d)], amend the fishery management plan [paragraph (f)], "apply equally to all persons" [paragraph (g)], and are "consistent as possible with federal management plans" [paragraph (h)]. The standard in paragraph (e) does not apply. As such, the changes are consistent with the statutory criteria. With respect to the changes in chapter 46-37, they "affect a reduction in fishing mortality on spotted seatrout in state waters" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], allow the species to "continue to be available to commercial and recreational fishers with hook-and-line gear" [paragraph (c)], conduct "the managment of spotted seatrout . . . on the unit stock" [paragraph (d)], amend the fishery managment plan [paragraph (f)], "apply equally to all persons seeking to harvest spotted seatrout" [paragraph (g)], and are not "inconsistent with recommended management plans initiated by the interstate commissions" [paragraph (h)]. The standard in paragraph (e) does not apply. On this basis, the rule changes are found to consistent with the standards. As to the consistency of the changes in chapter 46-39, they "affect a substantial reduction in fishing mortality on mullet in state waters" [paragraph (a)], "implement and aid enforcement of the recently adopted revisions to the Florida Constitution" [paragraph (b)], make "available to harvesters with cast net, and to a much lesser extent, hook-and-line gear" and "aid in the development of alternative gear fisheries for mullet" [paragraph (c)], continue to conduct the management of mullet on the unit stock [paragraph (d)], amend the fishery management plan [paragraph (f)], and "apply to anyone attemting to harvest mullet" [paragraph (g)]. The standards in paragraphs (e) and (h) do not apply. Accordingly, the rule changes are found to be consistent with the statutory standards. The revisions in chapter 46-43 "will not change the substantial conservation measures heretofore in place" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], "continue the current regulatory regime in place in the bluefish management plan" [paragraph (c)], allow the management of Atlantic bluefish to be continued to be conducted on the basis of the U. S. Atlantic coast unit stock" [paragraph (d)], amend the fishery management plan [paragraph (f)], "continue the regulatory regime currently in place and allow a fair and equitable distribution of the available bluefish harvest among commercial and recreational fishers" [paragraph (g)], and "are consistent with federal management plans" [paragraph (h)]. The standard in paragraph (e) does not apply. Again, it is found that the rule changes are consistent with the statutory standards. G. Were Procedural Requirements Met in Adopting the Rules? Petitioners complain that the MFC materially failed to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes, in three respects. First, it is alleged that the MFC failed to provide petitioners with a timely draft of the EIS prepared for each of the rule changes. Second, petitioners contend that the MFC erred by refusing to take public comment at the final adoption meeting in violation of Rule 46- 1.004(4)(b), Florida Administrative Code. Finally, petitioners argue that the MFC amended or repealed rules derived from local laws without holding a mandatory meeting in each affected county. These contentions will be considered separately below. Was the EIS submitted on a timely basis? The Organized Fishermen of Florida, Inc., Southeastern Fisheries Association, Inc., and Seafood Consumers and Producers Association, Inc. are organizations representing at least one hundred persons. Under Section 120.54(2)(b), Florida Statutes, an agency must prepare an EIS if within 14 days after the publication of the notice provided pursuant to paragraph (1)(c) or, if no notice of rule development is provided, within 21 days after the notice required by paragraphs (1)(a) and (b), a written request is filed with the appropriate agency by . . . an organization representing at least 100 persons. The same statute goes on to provide in part that: If an economic impact statement is prepared pursuant to paragraph (2)(b), at least 14 days prior to any public hearing on a proposed rule held pursuant to subsection (3), the agency shall make a draft copy of the economic impact statement available to any person who requests a copy of the statement. On January 20, 1995, or just four days before the first public hearing, petitioners filed with the MFC a written request for preparation of an EIS on each of the proposed rules. They also asked that they be provided with a copy of a draft of the statement. Notwithstanding this request, the hearing on the proposed rules was held on January 24-26, 1995, as previously scheduled. The official record of the rulemaking proceedings was closed on February 9, 1995. On the same day, petitioners were provided with a draft EIS. There is no evidence as to how petitioners were prejudiced in the conduct of this proceeding by virtue of not receiving a copy of the EIS prior to the public hearings. Indeed, petitioners never made the MFC aware of any specific concerns regarding the EIS, and they made no claim that the EIS itself is deficient. Therefore, even if an error in procedure occurred, it was harmless and did not impair the fairness of the proceeding. Did the MFC improperly refuse to hear public comment? Rule 46-1.004(4)(b), Florida Administrative Code, provides that during a MFC rulemaking hearing any person present shall be heard on any issue under consideration, subject to control by the presiding officer of irrelevant, repetitious or unduly extended comment. The rules under consideration here were revised and approved for adoption at a MFC meeting held on February 16, 1995. It is undisputed that no public comment was permitted at that meeting. Prior to the final adoption meeting, the MFC conducted public hearings on the proposed rules in Lee, Orange and Leon Counties. The MFC general counsel was appointed as a hearing officer to conduct those meetings, and at least one commissioner attended each meeting. Members of the public who attended the meetings were allowed to offer both written and oral comment on the rules. The meetings were not transcribed, but they were videotaped in order to preserve the record. After the meetings were completed, the MFC general counsel prepared a summary of the public comment and a staff recommendation for use by the MFC at its regularly scheduled meeting on February 16, 1995. Since three public hearings had already been conducted, including one in Tallahassee, the MFC opted to dispense with public comment at the February 16 meeting and to deliberate and vote on the proposed rule changes. It is undisputed that, prior to voting on the changes, the commissioners who had not attended the public hearings did not watch the videotaped record. Instead, they relied upon the summary of comments prepared by their staff. Even if the MFC's decision to dispense with public comment was in violation of rule 46-1.004(4)(b), there is no evidence as to how petitioners were prejudiced. This is especially true since a public hearing had already been held in Tallahassee less than a month earlier, at which time public comment was invited. Therefore, if an error in procedure occurred, it was not material, and it did not impair the fairness of the proceeding. Were hearings required in each affected county? Each of the twelve affected rules in chapter 46-3 is derived from local laws identified in Chapter 83-134, Laws of Florida, as amended by Chapter 84-121, Laws of Florida. Although these rules affect Lee, Volusia, Collier, Duval, Escambia, Santa Rosa, Hernando, Manatee, Martin, Pinellas, Sarasota, Walton and Brevard Counties, a public hearing was held only in Lee County. Rule 46-1.004(5), Florida Administrative Code, provides in relevant part as follows: (5) Before adopting any rule amending or repealing any rule derived from local laws identified in Section 2(5)(a), (b), or (c) of Ch. 83-134, Laws of Florida, . . . the Commission or, at the direction of the Commission, one or more Commissioners or staff members shall hold a public hearing. When acting on rules derived from such local laws, a hearing shall be held in the county or counties affected. (emphasis added) This rule tracks language in Section 2(5)(d) of Chapter 83-134, Laws of Florida, which requires the MFC to "hold a hearing in the affected county or counties" before amending or repealing any rules derived from local law. Petitioners contend that the foregoing rule and law were violated since a hearing was held in only one of the thirteen affected counties. As noted earlier, when the MFC was created by Chapter 83-134 as a part of the DNR, numerous local laws were in effect regulating fishing practices on a county by county basis. Section 2(5)(a) of Chapter 83-134 provided as follows: Effective upon the appointment of the commission, the following local laws pertaining to saltwater fishing, to the extent they relate to those areas specified in subsection (2), shall be repealed and shall continue as rules of the department: Chapter 83-134 was amended by Chapter 84-120, Laws of Florida, which, among other things, repealed additional local laws but provided that they continue in effect as DNR rules. It is a commonly recognized fact that in 1993 the DNR was abolished through a merger with the Department of Environmental Protection (DEP). Respondent takes the position that when the DNR was merged with the DEP, the DNR rules were repealed and readopted as MFC rules, and thus the present rules found in chapter 46-3 are no longer "derived from local laws." As a consequence, the MFC contends that a public hearing in each affected county is not required. The history notes to the challenged rules reflect that they were amended at various times in 1992, or before the merger of DNR and DEP occurred. No amendments have occurred since that time. Whether the 1992 changes constitute the readoption that the MFC relies upon is not apparent from the record. In any event, the rules are clearly derived from local laws, and thus they are subject to the requirements of Chapter 83-134, Laws of Florida, and Rule 46-1.004(4)(b) Florida Administrative Code. This finding is buttressed by the fact that in the FAW, the MFC describes its changes in chapter 46-3 as being for the purpose of conforming its rules "readopting portions of various special acts (local laws)" to the constitution. Moreover, the rules themselves contain language that the MFC intends "to readopt certain provisions of (the local law)." Even though the requirement in chapter 83-134 was not followed, there was no showing by petitioners that they were prejudiced by this error or that the fairness of the proceeding was impaired. Therefore, the error is deemed to be harmless. G. Do the Rules Conflict with the Constitution? Although petitioners' amended petition does not contain the allegation that the rules conflict with the new constitutional provision, in the main body of their proposed order they argue that eighteen rules "enlarge, modify or contravene the specific provisions of the constitution implemented." In contrast, the appendix to their proposed order cites twenty, rather than eighteen, rules which are allegedly constitutionally infirm. More specifically, petitioners complain that rules 46-3.008, 46-3.029, 46-3.032, 46-4.001, 46-4.005, 46-4.007, 46-4.015, 46-4.017, 46-23.001, 46- 23.002, 46-23.003, 46-24.007, 46-36.002, 46-37.002, 46-37.006, 46-39.002, 46- 42.007 and 46-43.005 make certain conduct unlawful even though such conduct is permissible under Section 16, Article X. By way of example, the rules make the possession (as opposed to the use) of gill or entangling nets unlawful even though the possession of such equipment is not barred by the constitutional amendment. Assuming, but not conceding, that the constitutional claim has been timely raised, Subsection (f) of Section 16, Article X provides in part that "nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine life." (Emphasis added) Since the changes to the rules under challenge arguably relate to the "use of nets," and they have been made "pursuant to law," that is, pursuant to MFC's statutory rulemaking authority, the cited rules, even if more restrictive than the amendment, do not contravene the constitutional provision.
Findings Of Fact Respondent, Studebaker's Restaurant (Respondent), owns a 50's theme bar in Clearwater which offers entertainment and dancing and serves alcoholic beverages and food. Studebaker's has a nationwide policy, also followed at the Clearwater establishment, of restricting admittance to persons aged 23 and older. In the same building housing the Clearwater Studebaker's, Respondent also owns and operates a theme bar called the Palm Beach Club which is under common management and which is operated like Studebaker's except that the theme and music is contemporary and anyone who has attained the legal drinking age is allowed admittance. Petitioner, Ronald M. McElrath, is the coordinator for the Community Relations Board established under Chapter 99 of the City of Clearwater Code. He is approximately 38 years of age. In May or June 1985, McElrath witnessed an employee of the Clearwater Studebaker's refusing admission to a female on the basis that she was not at least 23 years of age. Investigating further, McElrath verified through the manager of the Clearwater Studebaker's that Respondent did have a policy restricting admission to the Clearwater Studebaker's to persons at least 23 years of age. Based on McElrath's knowledge and information, McElrath and the Community Relations Board attempted to conciliate with Respondent the alleged conflict between Respondent's age policy at the Clearwater Studebaker's and Chapter 99 of the City of Clearwater Code. By November 13, 1985, McElrath and the Community Relations Board concluded that their attempts at conciliation would not be successful, and the Community Relations Board filed a charge of discrimination against Respondent. That charge of discrimination was referred to the Division of Administrative Hearings and assigned Case No. 85-3513. On or about February 11, 1986, Case No. 85-3513 was dismissed and the file closed based upon the Community Relations Board's report that it was withdrawing its petition in the case and that an individual other than the Community Relations Board would file a separate petition as Charging Party. Actually, on or about January 9, 1986, McElrath, in his capacity as coordinator for the Community Relations Board, had filed a Supplemental Charge Of Discrimination against Respondent on the same alleged facts that formed the basis of Case No. 85-3513. McElrath's Supplemental Charge Of Discrimination was referred to the Division of Administrative Hearings on or about February 4, 1986, resulting in this case. McElrath has never attempted to file any other complaint under Chapter 99 of the City of Clearwater Code in his capacity as coordinator for the Community Relations Board. Because no further investigation was necessary and no further attempts to conciliate were reasonably likely to succeed, McElrath made no further investigation and made no further attempts to conciliate with Respondent after filing the Supplemental Charge Of Discrimination. Before filing of the Supplemental Charge Of Discrimination in this case, McElrath did not make a formal probable cause determination and did not serve notice of determination of probable cause on the Respondent. Respondent and its management has a commendable and appropriately implemented policy of being a responsible seller of alcoholic beverages for consumption on the premises. However, contrary to Respondent's assertions in this case, the policy of allowing only persons 23 years of age and older in the Clearwater Studebaker's is not significantly motivated by a desire to reduce alcohol-related traffic accidents. The primary motivation for the age limit is to establish and maintain an economically successful theme bar. Any contribution towards reducing alcohol related traffic accidents is an after thought rationalization. This was proven by Respondent's willingness to divert patrons younger than 23 next door to its Palm Beach Club where Respondent willingly serves them alcoholic beverages for consumption on the premises.
The Issue Is an Agency that settles a challenge to its denial of a license by agreeing to issue the license a "non-prevailing adverse party," as defined by section 120.595(1)(e)3., Florida Statutes (2019)? 1
Findings Of Fact The Commission denied an application by Mr. Lightsey for issuance of a Hunt Preserve License. A letter titled "Amended Notice of Denial" (Amended Notice), signed by Major Rob Beaton, Division of Law Enforcement, advised Mr. Lightsey that the Commission intended to deny his application. The Amended Notice included this dispositive paragraph: "Due to the facts stated above, pursuant to 68-1.010, F.A.C, your application for a HPL has been denied. We are processing your application fee for a refund, and you should receive it within 21 days." The Amended Notice also advised Mr. Lightsey of his right to request a hearing to challenge the intended decision. Mr. Lightsey challenged the proposed denial and requested a formal administrative hearing. Mr. Lightsey brought his challenge under section 120.57(1), which creates a right to a formal hearing to dispute a proposed agency action. The Commission referred the matter to the Division for assignment of an Administrative Law Judge and conduct of the hearing. The parties settled the licensing dispute before the hearing. Their settlement agreement provided for the Commission issuing each of the denied licenses. The parties' agreement also provided for severing the attorney's fees and costs claim, leaving it pending for the Division to resolve if the parties could not agree. The order closing the file in this case severed the fees and costs claim and reserved jurisdiction over it. The parties could not agree. The division re-opened the fees case as DOAH Case No. 19-5210F. This proceeding followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that The Florida Fish and Wildlife Conservation Commission enter its Final Order denying Petitioner's Motion for Fees and Costs under section 120.595, Florida Statutes. DONE AND ENTERED this 31st day of March, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 31st day of March, 2020. COPIES FURNISHED: Bert J. Harris, Esquire Swaine, Harris & Wohl, P.A. 401 Dal Hall Boulevard Lake Placid, Florida 33852 (eServed) Bridget Kelly McDonnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Sharmin Royette Hibbert, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
