The Issue This hearing officer appeal under Section 4-505 of the City of Clearwater Community Development Code (Code) is the second of two administrative appeals available to and taken by Appellant, Deborah Groen Sobeleski (Sobeleski) under the Code. The issue in this second appeal is whether to sustain the decision of the City of Clearwater Community Development Board (CDB). The CDB's decision, made under Section 4-504 of the Code, was to allow Sobeleski's earlier Application for Administrative Appeal to the CDB from a Development Order (DO) issued by the City of Clearwater Community Development Coordinator (CDC) to remain on the CDB's consent agenda, which had the effect of denying the Application for Administrative Appeal and confirming the CDC's DO without a quasi-judicial hearing for receipt of additional evidence. The CDC's DO granted, with conditions, the Flexible Standard Development Application filed by Appellee, Christopher Mariani (Mariani, or Applicant), and subsequently amended, for a deviation to allow construction of a dock exceeding the 60-foot maximum length otherwise allowed by the Code.
Findings Of Fact On January 18, 2002, Appellee, Christopher C. Mariani (Mariani, or Applicant), filed a Flexible Standard Development Application for a deviation from Section 3-601.C.1.b.2 of the City of Clearwater Community Development Code (the Code) to allow construction of a 101-foot long dock (98 feet in length with a 3-foot step-down) where 60 feet would be the maximum otherwise allowed by the Code. The deviation from Code apparently was requested because a Pinellas County Department of Environmental Management Water and Navigation Report dated November 26, 2001, stated: Seagrass beds are located along this entire property, and extend out to a maximum of 65 ft. from the seawall in the area of the proposed dock although it becomes sparse at approximately 60 ft. It is the policy of this Department to limit structures over seagrasses to 4 ft. in width and to place the terminal platforms and boat slips beyond the limits of the seagrasses wherever possible. At the time the application was filed, Section 4-505 of the Code provided that, in an appeal to a hearing officer from a decision of the City of Clearwater Community Development Board (CDB), the record before the CDB could be "supplemented by such additional evidence as may be brought forward during the hearing"; and the appellant's burden was to show that the CDB's decision could not be "sustained by the evidence before the board and before the hearing officer." The "City of Clearwater Planning Department Staff Report for 2/14/02 DRC Meeting" recommended flexible standard development approval for a 92-foot long dock.3 The stated "Bases for approval" were: compliance with the flexible standard development criteria under Section 3-601.C.1.g.4 of the Code; compliance with the general applicability criteria under Section 3-913 of the Code; and compatibility with the surrounding area. The Staff Report noted: (1) "there are no navigational concerns with the proposed development"; and (2) "the proposal is more environmentally sensitive than the existing5 dock and constitute an improvement over existing conditions." The Report also stated that, since only one of the three criteria in Section 3- 601.C.1.g. need be met, similarity to surrounding dock patterns was not applicable but that "the proposed dock, as amended, will be similar to surrounding dock patterns." By letter dated March 5, 2002, Mariani amended his application to: decrease the length of the proposed dock to 95 feet; reduce the roof length over the larger capacity boat lift from 48 feet to 38 feet (to match the roof length over the smaller capacity lift); and reduce the total dock square footage to 476.25 square feet versus the 498 feet previously requested. On or about April 14, 2002, Mariani submitted to the City a set of "Dock Plans" for a 92-foot long dock.6 The document included "Diagram A Permittable Construction" and "Diagram B Proposed Construction." The apparent purpose was to contrast the dock Mariani would have been permitted to build in the absence of seagrasses with his proposed dock.7 On May 2, 2002, Section 4-505 of the Code was amended to provide that the appeal hearing before a hearing officer consists solely of reception of the record before the CDB and oral argument and that the burden on appeal to the hearing officer is for "the appellant to show that the decision of the [CDB] cannot be sustained by the evidence before the [CDB], or that the decision of the [CDB] departs from the essential requirements of law." Under the amendment, no other evidence is to be considered.8 By letter dated July 22, 2002, the CDC9 issued a DO stating concurrence with the DRC's "findings." Except for this reference, the record-on-appeal does not contain any evidence of the DRC's recommendation or any written findings by the DRC.10 But the CDC approved Mariani's application, as amended, upon the same "Bases for approval" contained in the "City of Clearwater Planning Department Staff Report for 2/14/02 DRC Meeting," with the following conditions: That a building permit for the proposed dock only be issued concurrently with, or subsequent to, building permit issuance for a principal, residential structure on the site; That the proposed dock be relocated farther east (with the dock head centered on the midpoint of the waterfront property line, as measured at the seawall) and constructed perpendicular to the waterfront property line; That the relocation of the dock meet all criteria under Section 3-601.C.1; and That revised plans reflecting conformance with condition #2 be submitted with the building permit application, to the satisfaction of staff. The DO then stated: "The approval is based on and must adhere to the site plan dated received April 15, 2002, or as modified by condition #2."11 On July 26, 2002, Sobeleski filed an Application for Administrative Appeal to the CDB from the CDC's decision. It included numerous exhibits. It appears that not all of the Application for Administrative Appeal and attachments were presented to the CDB for its consideration on August 20, 2002. One attachment was a letter dated March 27, 2002, from Sobeleski's attorney to the CDC and the City's Land Planner. This letter had 15 exhibits attached, but the CDC removed Exhibits 9-15 from the version of the letter presented to the CDB for its consideration. However, the letter stated that Exhibits 10-15 were attached for "ease of review," and the CDC separately presented copies of the documents contained in Exhibits 12-15 for the CDB's consideration. As for the other exhibits removed from the letter, Exhibit 9 was a computer diskette containing the photographs that were presented to the CDB for its consideration as Exhibits 1-8. Exhibit 10 was a letter dated March 6, 2002, from individuals named Blum to the City Planner stating no objection to the proposed dock. Exhibit 11 was a letter dated March 7, 2002, from Mariani to the CDC responding to opposition from Sobeleski and another individual to the proposed dock. While Exhibit 11 apparently was not presented to the CDB for its consideration, it clearly was adverse to Sobeleski's position and was addressed at length in the letter from Sobeleski's attorney dated March 27, 2002. In On August 20, 2002, the CDB considered the documents described in the immediately preceding Finding, together with a "City of Clearwater Planning Department Summary of Events," dated August 20, 2002, as well as oral presentations by the CDC, counsel for Sobeleski, and counsel for Mariani. The audiotape- recording of the oral presentations reveals that, upon the advice of the CDC and the Assistant City Attorney, the CDB attempted to limit the oral presentations to the question whether the CDB should remove Sobeleski's Application for Administrative Appeal from the CDB's consent agenda so as to cause a quasi-judicial hearing to be conducted, or should leave it on the consent agenda, which would result in upholding the CDC's decision. After being restricted by the CDB from addressing the merits, counsel for Sobeleski argued for a quasi- judicial hearing for reasons of "public policy." The CDB then allowed counsel for Mariani to address the merits in arguing that Sobeleski had made no showing as to why the CDC decision was incorrect so as to justify a quasi-judicial hearing.12 The Assistant City Attorney concurred that some such showing should be necessary to justify removal from the consent agenda. After the oral presentations, the CDB voted to leave Sobeleski's Application for Administrative Appeal on the CDB's consent agenda, thereby upholding the CDC's decision to issue the DO. On August 26, 2002, Sobeleski filed an Appeal Application from the CDB's decision. On September 20, 2002, the City referred the Appeal Application to DOAH under Section 4-505 of the Code. However, the referral letter from counsel for the City stated: Please note that I am not forwarding Exhibits 1-15 to the Appeal Application. Items 1-9 and 12-15 are already of record before the Board and are thus otherwise included. Items 10 and 11 were not of record below and are not being included, on that basis. Although the manner in which the record-on-appeal was prepared made it exceedingly difficult to ascertain, it appears that the referral actually failed to forward the entirety of Exhibit B to the Appeal Application, which consisted of letters from Appellant's counsel dated August 16 and March 27, 2002.13 The documents called "Exhibits" or "Items" in the referral letter actually were Exhibits 1-15 attached to the letter from Appellant's counsel dated March 27, 2002. As previously found, the CDC decided not to present to the CDB all attachments to the letter dated March 27, 2002. See Finding 9, supra. For that reason, the Assistant City Attorney "redacted" the Appeal Application by deleting the items not in fact presented (Exhibits 9, 10, and 11), as well as the items identical to documents separately presented (Exhibits 12-15), to the CDB for its consideration. See Finding 11, supra.14
The Issue The issues in these cases are whether Respondent violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425, Florida Statutes (2007 & 2009),1/ and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the administrative complaints, Mr. Organo was licensed as a certified general contractor in the State of Florida, having been issued license number CGC 1512005. At all times material to the administrative complaints, Mr. Organo was the primary qualifying agent for Bennett Marine Contracting and Construction, Inc. (Bennett Marine). On or about September 29, 2007, Jean Walker (Ms. Walker) entered into a contract with Bennett Marine to construct a dock and a tiki hut at 12305 Boat Shell Drive. The contract (the Walker contract) provided that the contractor would make application for a permit from Lee County, Florida. Mr. Organo signed the Walker contract for Bennett Marine. It is undisputed that the Walker contract did not include a written statement explaining Ms. Walker's rights under the Florida Homeowners' Construction Recovery Fund. On October 24, 2007, Bennett Marine applied for a permit to construct the dock. The application was denied October 29, 2007, because the site plan contained the tiki hut. When the tiki hut was removed from the application, the dock permit was approved. Ms. Walker paid Bennett Marine draws on the construction project. The payments were given to Mr. Organo. The payments totaled $9,200. By February 2008, a tiki hut had been constructed on Ms. Walker's property without a permit. Because the tiki hut was built without a permit, and it was in an illegal location, Lee County required that the tiki hut be removed. By April 2008, the tiki hut had been removed, and another tiki hut had been built in its place. Again, no permit was pulled for the tiki hut, and it was placed in an illegal location. Again, Lee County required that the tiki hut be removed. Mr. Organo subcontracted the construction of the tiki hut to Rick Fewell Chickees. Mr. Fewell of Rick Fewell Chickees, a Seminole Indian,2/ applied for a permit to build a tiki hut, but the application was rejected because the plot plan was not to scale, and the tiki hut did not meet the setback requirements from the water. Another tiki hut was built, and, in March 2009, Lee County again cited Ms. Walker for not having a permit for the tiki hut and for not meeting the setback requirements. In 2010, a permit was finally issued for the construction of a tiki hut on Ms. Walker's property. The permit was issued to Ms. Walker. Bennett Marine commenced work on the tiki hut without obtaining a building permit. On January 5, 2010, Bennett Marine entered into a contract with Chris Bevan (Mr. Bevan) to remove an existing dock, uninstall an existing boatlift, construct a dock, construct a tiki hut, and to reinstall the boatlift. The contract (the Bevan contract) required that the contractor obtain a City of Cape Coral building permit. The Bevan contract was signed by Mr. Organo for Bennett Marine. It is undisputed that the Bevan contract did not contain a written statement explaining Mr. Bevan's rights under the Florida Homeowners' Construction Recovery Fund. On March 17, 2010, Bennett Marine showed up on Mr. Bevan's property and commenced work, by knocking down a cantilever dock that was hanging over a seawall, removing old decking from the boatlift, and rough-framing part of the new dock. Bennett Marine worked until approximately March 25, 2010. That was the last that Mr. Bevan heard from Mr. Organo or Bennett Marine. Mr. Organo applied for a building permit for the Bevan contract on April 1, 2010. The permit was approved on April 13, 2010, but it was not issued. On May 14, 2010, the City of Cape Coral placed a stop-work order on the Bevan project. Mr. Bevan applied for an owner-builder permit for the dock construction, and the permit was issued on June 9, 2010. Mr. Bevan completed the dock construction at additional expense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Organo violated sections 489.129(1)(i), 489.129(o), and 489.1425; imposing a fine of $250 each for the Walker contract and the Bevan contract for a total of $500, for failure to advise the owners of the recovery fund; imposing a fine of $3,000 and placing Mr. Organo on probation for two years for beginning work without a permit for the Walker contract; and imposing a fine of $1,000 and placing Mr. Organo on probation for one year for beginning work on the Bevan contract without a permit with the one-year probation to run concurrently with the probation imposed for the Walker contract. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of April, 2011.
The Issue The Jupiter Inlet District, a special taxing district located in northern Palm Beach County maintains that the definition of "public navigation project" found in Rule 18-20.003(26), Florida Administrative Code, is invalid. It reads: "'Public navigation project' means a project primarily for the purpose of navigation which is authorized and funded by the United States Congress or by port authorities as defined by Section 315.02(2), Florida Statutes." The term public navigation project is substantively used in Rule 18- 20.004(1)(e), Florida Administrative Code, which establishes management policies, standards and criteria used by the Board of Trustees of the Internal Improvement Trust Fund when deteremining whether to approve request for activities on sovereignty lands in aquatic preserves. That rule states that: "(e) A lease, easement or consent of use may be authorized only for the following activities: a public navigation project; maintenance of an existing navigational channel..." Other portions of the rule provide that eligible requests for a lease, easement or consent of use will be evaluated according to stated social, economic and environmental benefit criteria.
Findings Of Fact The Jupiter Inlet District is a special taxing district in Palm Beach County created in 1921. It is authorized to "construct and thereafter to maintain an inlet connecting the mouth of Jupiter River with the Atlantic Ocean, and ... to deepen Jupiter River in said district and thereafter to maintain same." Section 8, Ch. 8910, Laws of Florida (1921). The legislation found the deepening of the river was a "public purpose and necessary for the preservation of the public health and for the public use of shipping and transportation, and for the extension of commerce of the State of Florida." The district is specifically authorized: "[T]o clean out, straighten, widen, change the course or flow of or deepen any other water course, natural stream or body of water that may be found to be necessary by said board in order to facilitate the opening and maintenance of said inlet or waterway ... or necessary to maintain a sufficient depth of water in said Jupiter River." Section 9, Ch. 8910, Laws of Florida (1921). The district's powers further include the authority to: "Construct and maintain canals, ditches, revetments, jetties and other works," construct bridges, roads, acquire property, and construct and maintain "docks, wharves, buildings and other improvements upon any of the properties which may be acquired by virtue of this act." Id. It is not a port authority as defined in Section 315.02(2), Florida Statutes (1985). The Legislature revised the District's enabling legislation in 1979. That statute contains a finding that the District is "a responsible local agency, entrusted by statute with maintenance of certain waters of the State within its territorial boundaries." Section 1, Ch. 79-532, Laws of Florida. The Legislature then required the Department of Environmental Regulation to seek and take into account recommendations or suggestions by the governing board of the Jupiter Inlet District on any applications for permits for activities in the waters within the Jupiter Inlet District. The territorial boundaries of the district overlap and include a portion of the Loxahatchee River/Lake Worth Creek Aquatic Preserve. The Loxahatchee River was formerly known as the Jupiter River. Before 1980, the Board of Commissioners of the Jupiter Inlet District constructed navigation channels and performed other dredging within the boundaries of the Loxahatchee River/Lake Worth Creek Aquatic Preserve. The district is applicant for consent for use of sovereignty lands to dredge a new channel in a portion of the Loxahatchee River located within the preserve. The Florida Aquatic Preserve Act was adopted in 1975. It directs that state-owned submerged lands in areas which have exceptional biological, aesthetic and scientific value be set aside forever as aquatic preserves or sanctuaries. Section 258.36, Florida Statutes (1985). The Loxahatchee River/Lake Worth Creek Aquatic Preserve is created in Section 258.39(10), Florida Statutes (1985). Under Section 258.40(2), Florida Statutes (1985), the following areas are excluded from aquatic preserves: "Any publicly owned and maintained navigation channel or other public works project authorized by the United States Congress designed to maintain or improve commerce and navigation shall be deemed excluded from the aquatic preserves established under this act." The Board of Trustees of the Internal Improvement Trust Fund is charged with the maintenance of aquatic preserves. Under Section 258.42(3)(a), Florida Statutes (1985), the trustees are instructed that: "No further dredging or filling of submerged lands shall be approved by the trustees except the following activities may be authorized pursuant to a permit: Such minimum dredging and spoiling as may be authorized for public navigation project.... 4. Such other maintenance dredging as may be required for existing navigation channels. " The Board of Trustees is empowered by Section 258.43, Florida Statutes (1985), to enact: "[R]easonable rules and regulations to carry out the provisions of this act and specifically to provide regulation of human activity within the preserve in such a manner as not to unreasonably interfere with lawful and traditional public uses of the preserve, such as sport and commercial fishing, boating and swimming." The Legislature also authorized the trustees to permit other activities in aquatic preserves, stating: "Reasonable improvement for ingress and egress, mosquito control, shore protection, public utility expansion, surface water drainage, installation and maintenance of oil and gas transportation facilities, and similar purposes may be permitted by the trustees subject to the provisions of any other applicable laws under the jurisdiction of other agencies." Section 258.44, Florida Statutes (1985). There are numerous special act inlet districts in Florida, e.g. St. Lucie Inlet District and Port Authority created by Ch. 9631, Laws of Florida (1923); Lake Worth Inlet District (now the Port of Palm Beach District) created by Ch. 7081, Laws of Florida (1915); Daytona, New Smyrna Inlet District created by Ch. 14503, Laws of Florida (1929); Ponce de Leon Inlet and Port district created by Ch. 21614, Laws of Florida (1941); Port Orange Special Road and Bridge Inlet District created by Ch. 13492, Laws of Florida (1927); Vero Beach Inlet District created by Ch. 11263, Laws of Florida (1925); Sebastian Inlet District created by Ch. 78-440, Laws of Florida; Hillsborough Inlet Improvement and Maintenance District created by Ch. 73-422, Laws of Florida; and South Lake Worth Inlet District created by Ch. 7080, Laws of Florida (1915). Each district has been subject to special acts amending its organic legislation. The Board of Commissioners of the Jupiter Inlet District filed a petition with the Department of Natural Resources, pursuant to Section 120.54(5), Florida Statutes (1985), seeking amendment of the rule at issue here to include in the definition of public navigation projects not only those authorized and funded by Congress and by port authorities, but also those of special districts. That petition was assigned Case No. 86-001 and was denied by the Department of Natural Resources in an Amended Final Order entered August 28, 1986, introduced into evidence as Respondent's Exhibit 1. No evidence was taken in that proceeding. The Amended Final Order consists mostly of the Department's explanation of why it does not believe amendment of the rule in the manner sought by the Jupiter Inlet District is appropriate. Except for the holding that the Department of Natural Resources will not institute proceedings to amend the rule defining public navigation projects, the Amended Final Order is entitled to little weight. For example, the statement in its Findings of Fact that the Jupiter Inlet District is not within the boundaries of the Loxahatchee Aquatic Preserve (see paragraphs 1 and 11) is simply wrong. There is no evidence that the Jupiter Inlet District operates any sort of port facility.
Findings Of Fact Chapter 216.14, Laws of Florida, 1941, establishes the Ponce de Leon Inlet and Port District for the primary purpose of obtaining land and easements to be turned over to the U.S. Government in connection with various harbor and channel improvements in Volusia County. The name and authority was changed in 1963, 1965 and 1969, so that now it is called the Ponce de Leon Port Authority whose powers were expanded to include "long-range development of the facilities for ports and recreation facilities within the district and traffic through these said ports." (Exhibit 1). In 1964 the qualified electors of Ponce de Leon Inlet and Port District approved the issuance of $4,000,000 special obligation bonds for the purpose of creating port and harbor facilities. Federal legislation authorized the stabilization of Ponce de Leon Inlet conditioned upon local authorities, viz. the Port Authority, complying with certain provisions such as paying part of the cost, providing spoil disposal sites, easements, etc. and providing "necessary mooring facilities and utilities including an adequate public landing or wharf with provisions for the sale of motor fuel, lubricants and potable water, equal to all on equal terms." (Exhibit 4). Pursuant to such federal legislation the channel improvements were completed in 1970-71. The availability of mooring and harbor facilities was an element used in determining the favorable cost-benefit ratio for the channel stabilization project. (Exhibit 2). The Port Authority's application in 1971 to the then Department of Pollution Control for a permit to construct a port and marina facility north of Ponce de Leon Inlet was denied. Thereafter an extended search for a suitable site was instituted. Included in this study are plans for a waterfront park which are referred to in various exhibits but are not a part of or integral with the application here under consideration. The Volusia County Planning Department was retained by the Port Authority to work on site selection and site design. After surveying existing marinas and determining that a need for the proposed marina existed, the planners determined that to meet the expressed need for a marina the site would require a minimum of twenty acres to accommodate water and land based boating facilities. Also, the site must satisfy the following requirements: It must be located to serve both New Smyrna Beach and Daytona Beach. The land use in the vicinity of the site must be compatible with the proposed marina. The site must be readily accessible by both land and water. There should be a minimum conflict with vehicular traffic over bridges which need to be opened to allow boat traffic. Municipal services such as electricity, water and sewage disposal facilities must be available. Topography of site must be such as to accommodate the construction of a marina. The site must offer protection to moored boats from wind and wave action. Consultants were employed to locate potential sites within the study area and six sites were identified with potential for developing a marina thereon. Three of these sites were quickly ruled out because of ecological factors and access problems, and various studies were conducted over a six months' period to evaluate the plant and animal life occupying the other three sites. In 1976 the results of the investigations, studies and meetings with various government agencies were documented in Marina and Park Study (Exhibit 8) which constituted the recommendations of the Volusia County Planning Department as adopted by the Port Authority. Upon completion of the study it was determined that Site V comprising some 90 acres which was given to the Port Authority by the City of New Smyrna Beach to whom title had earlier been conveyed by the Trustees, Internal Improvement Trust Fund, offered the best site for the project. Part of this tract consisted of a spoil disposal site upon which the New Smyrna Power Plant had been built. In addition to spoil disposal in this area some dredging had been done both north and south of the power plant site to provide access by fuel barges and other boats. Thus part of the area had previously been disturbed by man's activity and was no longer pristine. This site is close to Ponce de Leon Inlet and boats going from the marina to the ocean would have no drawbridges to pass under; the site is readily accessible from U.S. 1; Municipal facilities are available at the site; an industrial park has been established at the airport across U.S. 1 from the site thereby providing space for businesses to serve the proposed marina; the topography of the site is suitable for a marina; and the site will provide protection from wind and waves to boats moored there. Plans for the construction of the proposed marina were prepared and submitted to DER for the issuance of a permit. The Port Authority's position in 1976, which is substantially the same as now, is succinctly stated in Exhibit 8, p. 5, as follows: The Ponce de Leon Port Authority is committed ideologically and contractually to the provision of these facilities and fulfillment of these needs subject to state and local cooperation in permitting land acquisition and construction. In many respects the proposed park-marina is in fact a completion of park and recreation plans prepared as part of the original inlet stabilization proposed by the Corps of Engineers. Those parts of the current proposals not specifically contained in the plans prepared by the Corps of Engineers are modifications or logical extensions of the ideas contained therein. Numerous conferences between representatives of the Port Authority and officials of DER resulted in two modifications of the original development proposal. On each of these modifications the Petitioner further reduced the dredged area containing the most productive habitat. The final proposal, for which the application for permit was denied and is the subject of this hearing, reduced the area of mangroves to be dredged to approximately five acres and contained a design which would provide 90 percent flushing of the marina area each one-half tide cycle. By this application Petitioner seeks to construct a marina to accommodate 40 commercial vessels and 136 recreational boat slips (Exhibit 15) with the commercial boats and recreational boats on separate sides of the upland area involved. Ecological Considerations Involved The entire site owned by Petitioner and comprising some 90 acres is an impounded area bounded on the east by the Intracoastal Waterway (ICW); on the south by a road providing access to Inlet Shores, a residential development erected on a former spoil disposal site immediately south of Petitioner's property; on the west by U.S. 1 and east of that by a power line road; and to the north by the access road to the power plant site. The power line road which runs north - south and is east of U.S. 1 is breached in several places and some tidal effects are present in the marshy area between the power line road and U.S. 1. Petitioner proposes to dredge 327,000 cubic yards of which 93.5 percent is seaward of mean high water. Part of this dredged material would be used to fill and develop upland portions of the marina site, and the remainder will be deposited on disposal sites generally west of the power line road. The dredging will be done by suction dredges, and necessary safeguards will be provided to prevent turbidity or water degradation during the dredging and filling operations. To provide 90 percent flushing of the marina basin on each one-half tide cycle the water portion of the marina will be dredged to ten feet below mean low water. Of the uplands and tidal areas proposed to be dredged 0.66 acre is populated by red mangroves, 4.28 acres are populated by black mangroves, and 7.52 acres are populated by Batis/Salicornia. The fill area comprises 1.02 acres of black mangroves and 9.43 acres of Batis/Salicornia. (Exhibit 42). These vegetations are approximate because each specie is not the sole occupant of the area but merely the dominant specie thereon. Plant species in this site also include Spartina and Barrichia. To provide the 90 percent flushing of this proposed marina Petitioner proposes to make the power plant and uplands marina site into an island connected to the mainland by a bridge. This will result in eliminating the existing power plant access road and replacing it with a rerouted road and the construction of a bridge spanning the channel connecting the commercial and recreational slips. Petitioner proposes to bulkhead around the upland area of the marina and to stabilize the south side of the marina channel with rip-rap. The project slope of this channel, which abuts the area of greatest ecological significance, is two to one. Connected to the proposed marina basin to the south of the project site is a shallow tidal creek two or three feet deep which extends southward through the impounded property and provides a flushing channel for the entire impounded area east of U.S. 1. This tidal creek is the most significant ecological feature of this tract and is little affected by the proposed dredging. The proximity of this site to Ponce de Leon Inlet gives it a coastal oceanic component imposed on what would otherwise be simply an estuarine system. This component is evident from the aquatic species inhabiting the site. This is significant in that there is an import of food from the ocean as well as an export of food from the estuary both adding to the food chain at this location. Tidal range in most of the area is approximately 2.5 feet. This tidal range decreases to less than one foot west of the power line road. The few breaks in the power line road allow this tidal component to enter this area, but the reduced tidal component is due to the barrier presented by the power line road. As a result of this lower tidal range the flora west of the power line road has a much smaller red to black mangrove ratio and is generally less productive. Furthermore, greater freeze damage has occurred west of power line road than east of it; however, there remains considerable evidence of extensive freeze damage to black mangroves in the western portion of the tract east of power line road. The last freeze causing extensive damage occurred in 1977. In connection with the proposed marina project Petitioner proposes to install culverts under the power line road to allow more tidal flushing west of power line road. This will increase the productivity and ecological value of this area and thereby increase the productivity of the impounded area comprising this estuarine system. No evidence was presented from which the quantum of this increase can be determined. The most ecologically significant vegetation in this site is located adjacent to the IC and immediately south of the proposed entrance channel to the marina. Earlier applications included dredging in this area. Although not the most significant in the tract, those areas now proposed to be dredged are ecologically productive and provide sanctuary and nursery habitat for aquatic species important to the fishing industry. In this connection, studies conducted by Respondent show this area to be much more productive than do the studies conducted by Petitioner. Respondent's studies were conducted for a one- year period; Petitioner's studies were completed in six months. Additionally, Respondent used a smaller seine opening, thereby capturing a large number of small animals that could have passed through Petitioner's seines. Accordingly, more credence is given to the Respondent's evaluation of the productivity of the impounded area than is given to Petitioner's evaluation of this productivity. Biomass studies were not conducted by any of the parties hereto. Therefore, a quantitative evaluation of the loss to the site by the proposed dredging cannot be made. Suffice it to say that this loss to the ecology caused by the dredging is significant, and this significance is demonstrated by the variety of species found in the area. Water Quality Degradation With respect to water quality degradation the parties have stipulated that there will be no short-term water quality degradation due to the construction of the proposed marina. If short-term degradation will not occur due to construction it would seem obvious that this construction could not cause long-term degradation of water quality. Water quality degradation resulting from operation of the proposed marina can only be addressed by considering measures proposed by Petitioner to insure the integrity of the water quality against those forces that would cause degradation. Those forces primarily attested to include oil and gas spills, waste from moored boats, discharge from upland areas, and paint flakes from boat bottoms. The assurances that water quality degradation will not result from marina operations is provided by the necessary equipment to clean up any accidental oil or gas spills; adequate waste disposal facilities at the marina plus regulations precluding people from living aboard boats that are moored at the marina; provisions for retention of water runoff on the upland area of the marina; and 90 percent flushing on each one-half tide cycle designed into the project. This constitutes reasonable assurances that long-term degradation of water quality will not occur. Respondent's witnesses' testimony that long-term water quality degradation could occur in the estuarine channels south of the marina basin is based on the assumption that oil spills and discharge from boats is inevitable, that some of these contaminants would be carried by incoming tides up the estuarine creeks, that all of these contaminants will not exit with the outgoing tides, and consequently these contaminants will build up to a point the quality of the water will be below minimum standards. No evidence to support these assumptions was presented. While it is possible or even probable that some contaminants will enter the shallow estuarine channels on incoming tides, most of these contaminants will also exit on outgoing tides. Some of the contaminants that do not exit the estuarine channels through the marina basin will exit these channels through the mangroves on outgoing tides directly to the ICW. Other contaminants will be assimilated and absorbed by the plant life in this system. Absent flagrant violations of all laws and regulations protecting water quality, the design and equipment proposed does provide reasonable assurances that water quality will not be degraded. Responsible enforcement of these various laws and regulations will preclude flagrant violations. Wildlife Interference Manatees have been sighted in the vicinity of the power plant site. It is also an accepted fact that manatees are known to congregate near warm water discharges from industrial plants. The power plant has its water intake on the north side of the plant and its discharge on the south side of the plant site into the proposed channel to be used by recreational boats entering the marina. From these facts Respondent concludes that the proposed marina would increase the frequency of harmful and fatal encounters between boats and manatees. Manatees have been sighted in many areas of the ICW between New Smyrna Beach and Daytona Beach with the only concentration reported at the warm water discharge from the sewage treatment plant at Edgewater (just south of New Smyrna Beach). No evidence was presented from which it can be concluded that greater danger to manatees will result if the marina is located as proposed rather than at another site. Boats generally enter marinas at reduced speeds due to the restricted area in which they must operate, the potential damage wakes could create for moored boats, and the increased danger of collision with boats or docks while operating in restricted waters. While operating at reduced speeds it is less likely that a boat will hit a manatee than when operating at high speed and, if such a collision does occur, the damage to the manatee or the boat will be much less. Furthermore, without a marina near the entrance to Ponce de Leon Inlet boats will travel a much greater distance in the ICW (and at higher speeds than when entering the marina) while making a voyage to the ocean and back. This increased travel in the ICW would increase the probability of collision with a manatee more than would a concentration of boats at the marine. Various birds, some of which are endangered species, have been sighted in the area herein involved. No specific damage to these birds was shown by the proposed marina other than the potential effect removal of the productive vegetation would have on these animals. No evidence was presented that any of these endangered species nest in this area or that removal of productive vegetation would have any specific adverse effect on these birds. Public Interest and Benefits As noted above, one of the factors used to arrive at a favorable cost to benefit ratio for the channel stabilization project at Ponce de Leon Inlet was the construction by local authorities of port facilities where fuel and docking spaces would be available to the public. Surveys of existing facilities were conducted in connection with the Marina Port Study 1976 (Exhibit 8). This revealed existing marinas were full and that a substantial waiting list for berths at these marinas existed. At this time the registered boats per 1,000 population in Volusia County was 43.2. (Exhibit 11). The significance of this figure is that it shows a substantial increase since 1967, and by 1980 the registered boats per 1,000 population was 57. At the same time the population of Volusia County was also increasing each year. Available slips for boats have not kept up with these increases; in fact, statistics presented show a further widening between the number of boats and the availability of berths in Volusia County. This is also reflected in the increase in number of boats on the waiting lists at those marinas polled. Facilities for commercial fishing vessels designed to work out of Ponce de Leon Inlet are minimal. While some docking facilities exist, these consist only of piers to which to moor. Fuel is available at only a few marinas, and then by tank truck. Inadequate facilities are available in this area for unloading the catches from commercial fishing vessels. Some 30 fishing vessels are owned by local residents. Thirteen of these owners submitted signed statements that they needed and would use the proposed facility for all the needs of their vessels. Marina owners and fish house operators testified in opposition to the proposed marina, contending that a marina constructed with tax revenues and low interest loans would offer unfair competition to them, that their facilities were adequate to meet the existing needs for marina and fishery services, that if the public facility was not built they would expand their facilities to meet the need, that there are insufficient fish to provide a source to support the additional boats to be attracted by the marina, and that no increase in the available fish to be taken off Ponce de Leon Inlet is a realistic concept. While there have been wide fluctuations in the annual fish harvest in this area, the average fish catch over the past ten years indicates that this harvest is now at or near its maximum sustainable yield. Therefore, a significantly increased harvest is not anticipated. This does not mean that if facilities for off-loading fish are provided by the proposed marina that there will not be a substantial increase in the quantity of fish landed here. If so, this would mean that these fish loadings would be taken from another port. While this would result in no economic increase for Florida (assuming the landings were taken from Cape Canaveral), it would represent an economic benefit for Volusia County. Considerable testimony was presented respecting the desirability and economic feasibility of governmental intrusion into private enterprise which will occur if the marina is constructed by the port authority as proposed. The answer to such a question is predominantly a political one which has been answered in favor of such intervention by the voters. The evidence that a business enterprise is more efficiently run by private interests than by a governmental entity was not disputed. However, there are occasions where the size of the project, the risks involved, or the necessity for the project is such that it will only be done if constructed by a governmental entity. Classic examples of such projects are airports, bridges, tunnels, low-cost housing projects, large reclamation projects, and port and harbor facilities. There are also many marinas that have been constructed and run by public bodies such as cities, port authorities or other political subdivisions. The facilities when completed are to be leased to private enterprise to operate these facilities. This will be more efficient than if the port authority operated the facility. The primary, if not sole, consideration used by Respondent to deny the permit was the destruction of productive habitat that will result from the construction of this marina. No evidence was presented that Respondent weighed the loss of habitat against the public need for the marina; or, if such was done, the factors used in determining the weight to be given to each. At the hearing evidence of need (and lack thereof) for a marina was presented as well as evidence bearing on the economic feasibility for this marina. After considering all of the testimony I find that the construction of the marina will result in the destruction of valuable habitat, that the slips to be provided at this marina are needed for both commercial fishing boats and recreational boats, and that the marina will provide economic benefits to Volusia County. Balancing the loss to be caused by the proposed dredging and filling against the gain to the people of Volusia County and the surrounding area by the construction and operation of the proposed marina, I find construction of the marina not to be contrary to the public interest.
The Issue The issue in the case is whether the Petitioner should be granted an environmental resource permit and authorization to use sovereign submerged lands for construction of an extension to an existing multi-family residential docking facility.
Findings Of Fact The Petitioner, Bay Oaks Circle Association, Inc., represents the 20 property owners of the Bay Oaks Circle subdivision. Bay Oaks Circle borders on Lemon Bay. Lemon Bay is a Class II Outstanding Florida Water. Lemon Bay is also an aquatic preserve and a designated state "Special Water." The Lemon Bay aquatic preserve is recognized for its water quality and resources. To protect the resources, special standards are applicable to review of permits for aquatic activities. The Petitioner's existing dock was permitted in the 1970's. The dock has four slips and extends approximately 100 to 120 feet from the shoreline into water depths of approximately one to one and a half feet at low tide. The dock attaches to the shoreline from a 45.5-foot wide easement owned by the Petitioner. There is evidence of prop dredging in the existing mooring area. The existing mooring area has little natural value as a water resource. Initially, the proposed dock was to extend another 120 feet (for a total extension of 220-240 feet) into deeper water approximately three to three and a half feet at low tide and would accommodate a mooring area for eight slips. In the area of the proposed dock, most of Lemon Bay is about three and a half feet deep at low tide. The application was subsequently amended to provide an extension of 112 feet for a total length of 199.5 feet, with six boat slips. The final proposal provided for a 104 feet long by three feet wide access walkway. Two 16 feet long by two feet wide "finger" piers would extend from the walkway. The end of the walkway would terminate in a dock platform 8 feet by 20 feet wide. The total square footage of proposed structure over water is 536 square feet. The proposed mooring areas are defined by mooring pilings place into the bay bottom. The applicant seeks a sovereign submerged land lease to permit the preemption of 2,219 square feet of submerged bottom land. Because the proposed dock exceeds 500 square feet in an Outstanding Florida Water, a standard environmental resource permit must be obtained before the proposal can be constructed. Two of the proposed mooring slips are over seagrasses. Additionally, two shallow areas located nearby contain seagrasses. Seagrasses provide the basis of the food chain in the waters. Adverse impacts to seagrass beds negatively affect marine productivity, as well as the fishing and recreational values of the waters. The proposed dock expansion poses a threat to the seagrass beds at the mooring slips and in the shallow areas near the shoreline and to the east of the proposed dock. Although the proposed dock extension does not appear to directly impede a marked navigation channel, review of the bay bottom suggests that boats currently navigate in the proposed mooring area to avoid a shallower nearby shoal. It is likely that the proposed dock expansion would result in diversion of boat traffic into the seagrassed area of the shallower waters. Section 373.414(1), Florida Statutes, sets forth the review criteria used in consideration of a permit application when the proposed activity occurs in an Outstanding Florida Water. The Petitioner offered no evidence to establish that the permitting criteria set forth at Section 373.414(1), Florida Statutes, have been met. The proposed multi-family docking facility requires issuance of a sovereign submerged land lease before the facility can be constructed. Sovereign submerged land leases are reviewed according to the size of the proposed facility and the quality of the lands to be impacted by construction and operation. Submerged land is classified according to resource quality into "Resource Protection Areas (RPA)" to permit appropriate application review. An RPA I is an area of fragile, easily-damaged marine resources such as coral beds or seagrasses, that require the highest level of protection. An RPA II is an area or seagrasses or benthic animals which, while not as fragile as an RPA I, still require substantial protection. An RPA III is an area of sand that contains fewer marine resources than an RPA I or II. The seagrassed areas near the proposed docking facility are classified as an RPA I. The areas near the proposed docking facility contain less seagrass, but have substantial evidence of benthic anumals, and are classified as RPA II. According to the parties, the Petitioner must meet a "ten to one" rule to obtain a permit. In the alternative, the Petitioner may qualify for a lease if the proposed facility does not exceed the maximum square footage permitted for a single- family dock. The ten-to-one criteria provides that the total dock structure may not preempt more than ten times the linear footage of the property owner's shoreline, in which case a lease may be issued. In this case, the shoreline is 45.5 feet, resulting in a permissible preemption of 455 square feet. In this case the applicant proposes to preempt 2,219 square feet. According to the credited testimony of the Respondent’s witness, the single-family dock methodology does not qualify the proposed dock for permitting. Although a number of hypothetical dock proposals were discussed at the hearing, the hypothetical proposals are not included in the permit application. There is no evidence that the agency gave any formal consideration to hypothetical proposals prior to the hearing. At the hearing, the Petitioner proposed that the applicable rules be waived to allow the permit and lease to be issued. Specifically, the Petitioner proposed that the permitting criteria be waived as to dock design and minimum square footage. There is no credible evidence to support waiver of applicable statutes and rules in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order denying the application for the proposed dock extension filed by the Bay Oaks Circle Association, Inc. DONE AND ENTERED this 16th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 16th day of July, 1999. COPIES FURNISHED: Barry L. Dasher Bay Oaks Circle Association, Inc. 3075 Bay Oaks Circle Englewood, Florida 34223 Francine M. Ffolkes, Attorney Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard G. Perkins 4005 Bay Oaks Circle Englewood, Florida 34223 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation ("Department") is the state agency charged with regulating the practice of architecture and interior design pursuant to Subsection 20.165(4)(a)1. and Chapters 455 and 481. The Department has jurisdiction over the unlicensed practice of architecture pursuant to Subsections 455.228(1) and 481.223(1)(a). At all times relevant to this proceeding, Respondent, Helmuth Geiser, was not duly registered or certified to engage in the practice of architecture pursuant to Section 481.213. At all times relevant to this proceeding, Geiser of America, Inc. ("Geiser of America"), was not duly registered or certified to engage in the practice of architecture pursuant to Section 481.213. Helmuth Geiser was the president and sole shareholder of Geiser of America. Mr. Geiser holds a Degree of Geometer from the College of Modena, Italy. Mr. Geiser explained that the geometer degree encompasses surveying, engineering, structural engineering, and architecture and that the degree qualifies him to work as an architect and engineer in all countries of the European Union. The Department offered no evidence contradicting Mr. Geiser's description of the geometer degree. The complaint in this case was initiated by Claudio Riedi, an attorney representing Tranquility Bay Development, Inc. ("Tranquility Bay"), and its ultimate principal, Joern Eckermann, in litigation against Mr. Geiser and Geiser of America. On or about July 16, 1996, Geiser of America entered into a contract with Tranquility Bay "to design, engineer and supervise the Development of a +/- 70 acre land, located in Pine Island, Florida, in Section 16, Township 445, Range 22E, on Tranquility Bay Road." Tranquility Bay was a corporation formed to develop a 75-unit upscale residential project on the aforementioned property. The project was to be a "fly-in" community with its own centrally located airstrip. The majority shareholder of Tranquility Bay was Somec America, Inc., which was in turn owned by Mr. Eckermann. Both Mr. Eckermann and Mr. Geiser were directors of Tranquility Bay when the contract was executed. While Mr. Geiser was an officer of the corporation, there was no evidence that he had an ownership interest in Tranquility Bay. The contract refers to Tranquility Bay as "Client" and refers to Geiser of America as "Architect." The scope of services to be provided by Geiser of America as "Architect" were set forth as follows: Architect shall investigate the above cited real property for suitability and the requirements, legal or otherwise, that will affect the planning of the Project; pre-plan the entire Project; work up the final design of the Project, including, but not limited to, the architectural plans and drawings required; draft and submit all documentation required for obtaining of governmental permits; carry out the detailed planning of the Project; prepare and issue to appropriate construction companies, the construction contract bidding documentation; supervise the entire project, including, but not limited to, site inspections, constructions [sic] supervision, and/or construction observation; coordinate work flow with the contractor; obtain the required engineering services from licensed engineers; obtain the required services from specialists (ecologist, environmentalist); obtain the required services from surveyors. Not included in these services are soil tests (borings), ev. [sic] coastal engineering (Boat Dock & Seawall) permitting and Mangrove-trimming, and all fees payable for permits. The contract called for Geiser of America to receive $145,000 for the services listed in (A) through (F) above, $35,000 for the services listed in (G) and (H) above, and $130,000 for the services listed in (I) through (K) above, for a total of $310,000. Mr. Geiser completed a series of preliminary site drawings setting forth a proposed layout of the project, including 70 or so lots for single-family residences, an airstrip, a tennis clubhouse, a water treatment plant and retention area, and a nature preserve surrounding an eagle's nest on the property. The Department's expert, C. Trent Manausa, testified that Mr. Geiser's preliminary site drawings were "preliminary study designs" as that term is employed in the definition of "architecture" found in Section 481.203(6). The drawings do not support this contention. Mr. Geiser more accurately described the drawings as layouts of the subdivision of the land, not study designs preparatory to the design and construction of a structure or group of structures. The drawings set out a proposed footprint for the project, sizing the home lots and locating the other structures on the property, but the drawings did not provide a proposed design for anything to be built on the property. Mr. Geiser testified that the entire purpose of the contract was for the layout and subdivision of the land, not to build or design any structures for human habitation. Mr. Geiser anticipated designing some of the single-family residences in the project, but foreswore any intention to design or build the tennis clubhouse, landing strip, or any other kind of structure depicted on his preliminary drawings. Mr. Geiser attributed the contract's reference to Geiser of America as the "architect" of the project to his lawyer, who drafted the document. Mr. Geiser testified that his command of the English language was not good in 1996 and that he did not appreciate the significance of the term "architect" at the time the contract was executed. Mr. Geiser testified that he understood that he was not allowed to practice architecture in Florida. He intended to hire engineers to perform those tasks that would require the obtaining of permits, such as construction of the airstrip, tennis courts, roads, and installation of utilities. Mr. Geiser's limited understanding of English may explain the use of the term "architect" as a shorthand reference to Geiser of America throughout the contract. However, Mr. Geiser's testimony as to the services contemplated is contradicted by the plain language of the contract itself, which stated that Geiser of America will "work up the final design of the Project, including, but not limited to, the architectural plans and drawings required." (Emphasis added.) It further stated that Geiser of America will "draft and submit all documentation required for obtaining of governmental permits" and "supervise the entire project, including, but not limited to, site inspections, constructions [sic] supervision, and/or construction observation." The contract clearly called for Geiser of America to shepherd the Tranquility Bay project to completion, including the provision of architectural services, not merely to draw a layout and subdivide the land. Before the project reached the point of permit applications, a dispute arose between Mr. Geiser and Mr. Eckermann over payments due under the contract. In October 1998, Mr. Geiser hired a local attorney, Robert Burandt, to draft and file a claim of lien on the real property for an alleged $258,940 owed by Tranquility Bay for services rendered under the contract. The claim of lien alleges that Geiser of America "furnished labor, services or materials consisting of the furnishing of subdivision improvements, architect, landscape architect, engineering, surveyor and mapper services, and other services to make the real property suitable as a site for improvement. . . ." (Emphasis added.) Mr. Burandt later withdrew from his representation of Mr. Geiser. In the ongoing litigation, Mr. Burandt later submitted answers to interrogatories propounded by counsel for Mr. Eckermann. One of the interrogatories asked, "Did Helmuth Geiser disclose to you prior to recording of the lien that he was a licensed Florida architect at times relevant to this Complaint?" Mr. Burandt's answer was: "Mr. H. Geiser advised me that he was a German Architect licensed in Germany and Florida." Mr. Burandt testified at the hearing in this matter. His testimony was less direct than his interrogatory answer. Mr. Burandt did not testify that Mr. Geiser ever directly stated that he was a Florida-licensed architect. Rather, Mr. Burandt testified that he inferred Mr. Geiser was claiming to be a Florida-licensed architect from the fact that Mr. Geiser signed the claim of lien swearing that he had provided architectural services to Tranquility Bay. Mr. Geiser testified that he was introduced to Mr. Burandt by another local attorney, Ernest Seemann. Mr. Seemann had represented Mr. Geiser in other matters, but had a conflict that prevented him from representing Mr. Geiser in the Tranquility Bay matter. Mr. Geiser testified that, in Mr. Seemann's presence, he told Mr. Burandt that he was not licensed to practice architecture in Florida. Mr. Seemann testified that he was present during a meeting in which Mr. Geiser told Mr. Burandt that he was not a Florida-licensed architect. Mr. Seemann could not recall whether this meeting took place before or after the claim of lien was filed. The Department submitted an affidavit filed by Mr. Eckermann in the Tranquility Bay litigation. Mr. Eckermann's affidavit stated, in relevant part: Attorney Earnest [sic] Seemann of Cape Coral referred me to Helmuth Geiser . . . whom he represented to be a skilled architect, so that he could assist Somec in a specific investment opportunity. Geiser told me he was an architect, licensed in Florida and abroad, which was supported by his business card, which he gave me, and by his letterhead. Mr. Eckermann did not testify at the hearing in this matter. Mr. Geiser strongly denied having told Mr. Eckermann that he was a Florida-licensed architect. Mr. Seemann, who also knew Mr. Eckermann, also denied ever telling Mr. Eckermann that Mr. Geiser was licensed in Florida. Mr. Seemann testified that he and Mr. Eckermann conversed in German and that in formal German conversation it is customary to refer to a person by his name and occupation. Thus, when they discussed Mr. Geiser, Mr. Seemann referred to him as "Herr Architekt Geiser," in deference to Mr. Geiser's status as an architect in Europe. Mr. Seemann theorized that this form of reference may have given Mr. Eckermann the impression that Mr. Geiser was licensed to practice architecture in Florida. Given that Mr. Eckermann did not testify at the hearing, the evidence presented is insufficient to demonstrate that Mr. Geiser directly told Mr. Eckermann that he was a Florida-licensed architect. However, when the hearsay contained in Mr. Eckermann's affidavit is considered in conjunction with the contract between Tranquility Bay and Geiser of America and the claim of lien, it becomes apparent that Mr. Eckermann had adequate cause to believe that Mr. Geiser was a Florida-licensed architect. The evidence presented at the hearing established that Mr. Geiser, through Geiser of America, offered to render architectural services in connection with the design and construction of the Tranquility Bay development. In attempting to collect monies allegedly owed under the contract, Mr. Geiser swore that he had provided architectural services to Tranquility Bay. Even if Mr. Geiser did not expressly tell Mr. Eckermann that he was a Florida-licensed architect, Mr. Geiser's act of entering into a contract to provide architectural services in Florida operated as a de facto assertion of his Florida licensure. The evidence presented at the hearing did not establish that Mr. Geiser actually performed architectural services in relation to his performance of the Tranquility Bay project. Mr. Riedi's complaint included information about projects other than Tranquility Bay. In a deposition dated April 7, 1999, Mr. Geiser admitted under oath that he provided services to a Mr. Kohler on a commercial project that included restaurants and offices. Mr. Geiser stated that he had no written contract with Mr. Kohler, but expected to receive $70-80,000 pursuant to a verbal agreement with Mr. Kohler. At the hearing in this case, Mr. Geiser testified that he provided only "aesthetic design" concepts and early layouts setting forth raw square footage of the buildings to be placed on the property. Without more evidence, it cannot be found that Mr. Geiser provided architectural services on the Kohler project. In the same April 7, 1999, deposition, Mr. Geiser admitted under oath that he provided layout designs to subdivide the land on a commercial project known as Sky Manor. At the hearing in this case, Mr. Geiser testified that his layouts simply subdivided the land with lines drawn on a map of the property. Mr. Geiser denied any agreement to design or construct any structures on the property. Without more evidence, it cannot be found that Mr. Geiser provided architectural services on the Sky Manor project. In a letter dated May 22, 1998, from Geiser of America to the U.S. Consulate concerning his application for renewal of E-2 Treaty Investor Status, Mr. Geiser stated that Geiser of America "is in the business of providing architectural and engineering services in Southwest Florida, including consulting and design." However, the letter also states that Geiser of America "primarily designs and helps build residences in the $200,000 to $800,000 range." In a Nonimmigration Treaty Trader/Investor Visa Application, Mr. Geiser stated that his firm provides "architectural and engineering services, including consulting and design [and] supervise[s] building projects." For a period of time in the late 1990's, Geiser of America's letterhead included "architecture" among the services provided by the company. During the same period, Mr. Geiser's business card designated him as "architect," the German spelling of the term. Advertisements placed by or for Geiser of America in German language publications designated Mr. Geiser as an "architekt" or as providing architectural services. However, these advertisements also made it clear that Geiser of America's practice was limited to the design and construction of single- family residences. In explanation, Mr. Geiser disclaimed any attempt to imply that he was a Florida-licensed architect. He stated that he understood that the statutory definition exempted work on single-family residences from the definition of "architecture," but that as a practical matter he could think of no other term to describe the work he performs in designing and building these residences. Thus, he referred to his services as "architectural," though he had in mind nothing that would violate the terms of Chapter 481, Florida Statutes. Mr. Geiser's explanation is credited for reasons more fully explained in the conclusions of law below. In conclusion, the Department established by clear and convincing evidence that Mr. Geiser offered to perform architectural services and held himself out as a Florida- licensed architect when he entered into the contract for the Tranquility Bay project. The Department failed to establish any of the other allegations of the Administrative Complaint by clear and convincing evidence.
Recommendation Based on all the evidence of record, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Respondent committed one violation of Subsection 481.223(1)(a) and one violation of Subsection 481.223(1)(c) and that an administrative penalty of $2,000.00 be imposed. DONE AND ENTERED this 2nd day of September, 2003, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 2nd day of September, 2003. COPIES FURNISHED: David K. Minacci, Esquire Smith, Thompson, Shaw & Manausa, P.A. 2075 Centre Pointe Boulevard Tallahassee, Florida 32308-4893 Darrin R. Schutt, Esquire Seemann & Schutt, P.A. 1105 Cape Coral Parkway, East Suite C Cape Coral, Florida 33904 Juanita Chastain, Executive Director Board of Architecture and Interior Design Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues to be resolved in this proceeding are whether the Department should issue a permit to Casetta, and whether the Department should issue a permit to Harbor Point. The two application proceedings were consolidated for hearing purposes. In many respects, common factual and legal issues relate to the two proceedings. For that reason, in the interest of economy of time and space, a single recommended order is being issued with respect to the two proceedings.
Findings Of Fact History of Proceedings In 1974, a prior owner of the property now owned by Casetta filed an application with the Department to entirely fill the pond which is the subject of this proceeding. A final order denying the application was entered by the Department on August 31, 1977. A second application to fill the entire pond was filed with the Department by Casetta's predecessor in 1979. During the pendency of that proceeding, Casetta purchased the property and by stipulation was permitted to be substituted as the Petitioner. The Department gave notice of its intent to deny the second application in February, 1981. Casetta challenged the Department's assertion that it had jurisdiction under the provisions of Chapter 253, Florida Statutes. The matter was forwarded to the Division of Administrative Hearings and given Case No. 81-1082. The matter before the Division has been closed, but it remains as a pending proceeding before the Department. It is being held in abeyance pending the resolution of Casetta's present application. The application involved in this proceeding was submitted to the Department during December, 1981. The City of Riviera Beach, Florida, granted local approval for this application; and on May 18, 1982, the Department issued a Notice of Intent to issue the permit. The Department published a notice of its proposed action in the Commercial Record, a Palm Beach County newspaper. The Florida Wildlife Federation and the Property Owners' Association of Singer Island together filed a request for formal hearing with the Department. The Singer Island Civic Association filed a separate request. Counsel for the Wildlife Federation and the Property Owners' Association withdrew during the course of the proceeding. It was indicated that these parties would voluntarily dismiss the requests for hearing, but no such papers were filed. No one appeared on behalf of the Florida Wildlife Federation or the Property Owners' Association of Singer Island during prehearing conferences that were conducted in this matter or at the final hearing. The Executive Director of the Florida Wildlife Federation testified as a public witness at the hearing and indicated that they were not participating in the proceeding as a party. During the pendency of proceedings respecting the Casetta application before the Division of Administrative Hearings, Harbor Point filed an application with the Department to install a culvert which would connect the pond that is the subject of the Casetta application with a pond located on property owned by Harbor Point through a culvert system. Harbor Point sought to have its application considered by the Department as an alternative to the Casetta application. On or about August 2, 1982, the Department issued a Notice of Intent to deny the Harbor Point application Harbor Point thereafter petitioned for a formal hearing. On or about June 4, 1982, the United States Corps of Engineers issued a permit to Harbor Point to construct its proposed culvert system. Description of Property in the Area of Proposed Projects. Casetta is the owner of approximately five acres of land that lie between the Atlantic Ocean and Lake Worth on Singer Island in Palm Beach County, Florida. The property includes a rectangular pond that is approximately three acres in area. This pond will hereafter be referred to as the "Casetta pond." Submerged lands in the Casetta pond were conveyed into private ownership by the Trustees of the Internal Improvement Trust Fund, State of Florida, in 1924. Harbor Point owns land adjacent to Casetta's property to the north. Harbor Point's property includes a pond which is configured in the approximate shape of an hourglass and is approximately one acre in area. A condominium apartment building has been constructed on Harbor Point's property. Harbor Point members own residential units in this facility. The area presently owned by Casetta and Harbor Point was, in its natural condition, a part of the littoral zone, a shallow, submerged area, on the eastern edge of the lake. Lake Worth is an estuarine water body located between the mainland and Singer Island. The littoral zone of such a lake is of fundamental ecological importance. It serves as a habitat for a wide variety of wildlife and serves to maintain water quality in the lake through uptake of nutrients by vegetation that thrives in the area. The natural condition of the area was markedly changed by the construction of State Road A-1-A. The highway separated the area, including what is now the Casetta and Harbor Point properties, to a large extent from the waters of Lake Worth. A culvert was constructed under the highway in the area of what is now the Harbor Point property. This culvert allowed tidal waters from Lake Worth to enter the area, and the area thus remained in a diminished fashion as a littoral zone of Lake Worth. Sometime between 1953 and 1964, landowners in the area constructed dikes which appear to have served as driveways along their northern and southern boundaries. Fill was placed on the Harbor Point property so that a pond was created in its present approximate configuration. The Harbor Point condominium facilities are presently in part set on the filled land. The Harbor Point pond remained connected with the waters of Lake Worth through the culvert system. The Harbor Point pond thus remains subject to tidal influences from Lake Worth. It is an estuarine system which serves as a part of the littoral zone of Lake Worth. The driveway to the condominium, however, completely Separated the Casetta pond from direct interaction with the waters of Lake Worthy. The Casetta pond is presently in an approximately rectangular configuration. Probably as a result of groundwater interaction, it is affected in a minimal manner by tidal influences in Lake Worth. The Casetta pond receives water from runoff and from groundwater interaction. It has become a freshwater body. While the Casetta pond is no longer a direct part of the Lake Worth estuarine system, and while it is by no means in its natural condition, it remains a wetland ecosystem. The pond is surrounded by mangrove communities. There is considerable biologic activity. Many bird species roost in the mangroves and feed in the pond. The mangroves provide shelter for aquatic organisms which are a food source for the birds. The pond does not support a wide diversity of marine plants or animals. A single species of minnow, mosquito fish, exists in substantial quantities These serve as a food source for birds including ducks, herons, egrets, and kingfishers It appears that the Casetta pond has been used in the past as a borrow pit to obtain fill for adjoining properties trenches, which are as much as six feet in depth, have been dug along the northern, southern, and eastern perimeters and across the pond. Because it is cut off from Lake Worth, and because of the ditches that have been cut through it, the Casetta pond is in a very deteriorated condition. While healthy mangroves surround the pond, they are, except to the west, extremely narrow populations due to the sharp banks that have been caused by dredging activity. The mangroves have no room to expand their population and are stressed due to invasion of upland vegetation such as Brazilian pepper. Widgeon grass exists in the lake bottom. Algae, however, has become the dominant vegetation in the pond. From 80 to 90 percent of the pond's bottom is covered by a mat of algae that ranges up to five and one-half inches in thickness. The algae population is increasing rapidly. Widgeon grass populations are being choked off by the algae. Dissolved oxygen levels in the Casetta pond are consistently low, below standards set in the rules of the Department. The oxygen demand of the algae community has depleted dissolved oxygen levels. While the Casetta pond functions as a wetland community, its values are severely reduced, and it appears that water quality in the pond is likely to continue to deteriorate. While by no means in a natural condition, the Harbor Point pond continues to function as a viable part of Lake Worth. This is a result of the pond being connected to the lake through the culvert system. The edges of the pond are populated by mangrove and cord grass communities. Marine species such as mullet are easily observable. Wading birds roost in surrounding vegetation and feed in the pond. The Harbor Point pond is basically a shallow, tidal water body. Water quality in the Harbor Point pond basically mirrors water quality in areas of Lake Worth to the west of Highway A-1-A. The Harbor Point pond has an eastern and western lobe connected by a narrower area, forming an approximate hourglass configuration. The eastern lobe is farthest from the connection to Lake Worth. Water quality in the eastern lobe is generally poorer than water quality in the western lobe and in Lake Worth. The deepest portion of the Harbor Point pond is in the eastern lobe. Wind action cannot serve to fully flush the waters of this area because of its relative isolation from the western lobe. Runoff from the Harbor Point condominium to the east of the pond and from a fire station parking lot to the west enters directly into the Harbor Point pond. It is filtered only by the action of grasses over which it flows. There is no ex-filtration drainage system. The culvert which connects the Harbor Point pond with Lake Worth runs from the western lobe of the pond under Highway A-1-A into Lake Worth. Lake Worth is a Class III water body under the Department's rules. The Parties' Proposals 1. The Casetta Application Casetta is proposing to construct a high-rise condominium on the eastern portion of its property. There is insufficient land on the property as it is presently configured to accommodate needed parking spaces. Casetta proposes to fill in 1.8 acres, or approximately 60 percent of the Casetta pond in order to construct parking facilities. Casetta has proposed to construct a culvert system that would connect the remaining portion of the pond with Lake Worth. The remaining portion of the pond would be regraded and configured. The northern and western boundaries would remain basically in their present configuration The remainder of the pond would be completely modified. A meandering shoreline would be created for an "L"- shaped pond. The bottom would be recontoured so that broader, shallow areas along the shoreline would be created. With the culvert system installed, the reconfigured pond would receive tidal waters from Lake Worth. The pond would effectively become, as the entire area once was, a portion of the littoral zone of Lake Worth. With the meandering shoreline and a gradually sloping bottom, the reconfigured pond would have as much area for littoral zone vegetation to establish itself as the present pond. Casetta proposes to commence construction activities by filling in a portion of the pond and regrading the remainder. The pond would be drained so that the algae that presently exists in large quantities would die and be removed. Clear fill material would be used to grade the pond. An exfiltration system would be created so that runoff that would reach the pond from upland areas would be filtered before it could enter the pond, thus reducing the impact of pollutants from upland runoff. The proposed culvert system would be in three sections. There would be a 35-foot section leading from the pond and slanting gradually downward to a point approximately eight to nine feet under Highway A- 1-A. The second section would be 110 feet long, lying vertically under Highway A-1-A. The third section would be 95 feet long, gradually rising from the second section to the bottom of Lake Worth. The bottoms of the open ends of the culvert in the Casetta pond and in Lake Worth would be at the ordinary low-tide marks. The top would be below the ordinary high-tide marks. Thus, the culvert openings would be exposed at low tide and submerged at high tide. The portion of the culvert under A-1-A would be filled with water at all times. It is necessary to place the culvert at least eight feet under Highway A-1-A in order to avoid utility pipes and cables that lie under the highway. The portion of the pipe under A-1-A would be installed through a boring technique known as "jack and bore." This technique would obviate any need for the closing of traffic on Highway A-1-A. The portion of the culvert in the Casetta pond and in Lake Worth would be installed by digging trenches, laying the pipe, then filling the trenches. Two openings would be made in the pipe at either end of the deep sections. These would be "manhole-type openings that would allow for periodic maintenance. Installation of the portion of the pipe in Lake Worth would be accomplished by building a work platform into the lake from material that is dredged from the trench. Once the pipe is laid, the material from the work platform would be placed back on top of the culvert, and any extra material would be removed from the site. Turbidity screens would be used to surround the project to reduce the short-term impacts of turbidity caused by construction. Once the pond is reconfigured and the culvert is installed, tidal flows would be introduced to the reconfigured pond on a gradual basis in order to observe any problems that might result. Shoreline grasses such as cord grass would be introduced in the shallow areas, and mangroves removed during filling operations would be replanted along the shoreline. This would serve to stabilize the shoreline and to provide the beneficial effects of littoral zone vegetation, including wildlife habitat and water quality benefits. The reconfigured Casetta pond would be approximately 33,000 square feet in area. If the culvert system functions as proposed, the reconfigured pond would become a part of Lake Worth. There are environmental and ecological advantages and disadvantages to the proposal. The disadvantages are rather obvious. One and eight-tenths acres of wetland habitat would be eliminated. While the present Casetta pond is only a marginally valuable wetland, it is not without its beneficent effects as have been described above. Furthermore, during construction, the habitat values of the Casetta pond would be lost, and short-term deleterious water quality impacts would occur in Lake Worth. There are trade-offs. The proposed filling, regrading, and connecting of the ponds to Lake Worth could have substantial positive impacts. The most apparent of these is that Lake Worth would regain 33,000 square feet of littoral zone. Construction activities have removed as much as 75 percent of the Shoreline vegetation that once Surrounded Lake Worth. The littoral zone has been replaced with developments that in ecological terms have negative impacts. Reconnecting the ponds to Lake Worth would be a slight reversal of that trend. Habitat for marine species would be increased, and the "kidney effect" that shoreline vegetation provides would be reestablished. Except during construction, Casetta's proposal would have no adverse water quality impacts upon surrounding waters. Adverse impacts during construction would be minimized by protective techniques that Casetta has proposed, including the use of turbidity screens. Long-term water quality impacts of the proposed project would be positive. Water in the present Casetta pond is of poor quality. The pond does not presently serve any water quality function for Lake Worth, since it is not connected to Lake Worth. Connecting the reconfigured pond to Lake Worth would allow waters from the lake to be purified through nutrient uptake by littoral zone vegetation. In habitat terms, the filling would reduce the total area of wetland habitat. The quality of the habitat would, however, be vastly improved. Rather than an unnatural, stagnant pond which provides habitat for only a few varieties of very common freshwater minnows, a marine habitat would be provided for all manner of creatures that survive in the littoral zone of estuarine water bodies. Bird habitats would not be reduced, since the shoreline of the lake would not be lessened. Thus, while the Casetta proposal would reduce the total size of wetland habitat, it would vastly improve it and would not have a detrimental effect that would be contrary to the public interest. In order for the reconfigured Casetta pond to offer an improved wetland habitat and a positive water quality impact for Lake Worth, it is essential that the proposed culvert system functions so as to allow an unimpeded interchange of water between the reconfigured pond and Lake Worth. If the culvert system does not operate, the result of the proposed project would be merely to lessen wetland habitat. Rather than a three-acre unnatural wetland habitat, there would be a 1.2-acre unnatural wetland habitat. Such an adverse impact upon wildlife habitat would be clearly contrary to the public interest. Furthermore, limited exchange of water between a eutrophic pond and Lake Worth could have an adverse impact upon water quality in Lake Worth so as to result in violations of the Department's water quality standards along the border of Lake Worth. The evidence does not establish that the proposed culvert system will properly function. Casetta had proposed a 36-inch culvert. Robert Snyder, a consulting engineer, was retained to determine the flushing characteristics of the culvert. Snyder calculated that maximum velocities associated with mean or average tides through the culvert system would be 1.89 cubic feet per second. Snyder calculated that this exchange rate would be sufficient to flush sediment and debris that would collect in the culvert. Thus, the culvert would be self- cleaning with only limited maintenance required to keep it open. In calculating the exchange rate, Snyder utilized the wrong formula. He overestimated the exchange rate by a factor of two. If the rate estimated by Snyder is reduced by a factor of two, it is apparent, that the exchange rate would not be sufficient to flush the culvert. Sediment and debris would collect in the pond, and rather regular maintenance would be required. Mechanical means can be utilized to clean a clogged culvert. A culvert of the length and configuration proposed by Casetta is difficult to clean through mechanical processes, however, and the processes themselves increase turbidity in the area. The evidence does not establish that regular maintenance would be sufficient to keep the culvert free of sediment and debris so that there would be a free exchange of water between Lake Worth and the reconfigured pond. When engineer Snyder was made aware of his miscalculations, he proposed reducing the size of the culvert to 24 inches. He testified that this would adequately increase the exchange rate so that the culvert would be selfmaintaining. Snyder's testimony in this regard has not been deemed credible. Given the witness's use of an erroneous formula in calculating exchange rates and another error that he admitted making in calculating scour potential, the witness cannot be considered competent to give expert testimony in these areas. If the culvert system proposed by Casetta allowed for the free exchange of waters between Lake Worth and the reconfigured Casetta pond, the water quality and habitat impacts of the proposed Casetta project would be, on balance, positive. The evidence does not, however, establish that the culvert system would function. It appears likely that the culvert system as proposed would be frequently clogged with sediment and debris, thus preventing the exchange of waters between the reconfigured pond and Lake Worth. The result of the proposed project would therefore be a reduction of wildlife habitat with potentially adverse water quality impacts upon the waters of Lake Worth. 2. The Harbor Point Proposal Harbor Point has proposed to install a culvert system that would connect the Casetta pond in its present configuration with the Harbor Point pond. Since the Harbor Point pond is connected through a culvert system with Lake Worth, the Harbor Point proposal would result in opening the Casetta pond to tidal influences from Lake Worth. Harbor Point has presented no evidence as to construction techniques that would be utilized and has provided no assurance that the construction itself would not result in water quality violations in the Harbor Point pond and in Lake Worth. Opening the Casetta pond in its present configuration to tidal influences would have the positive impact of allowing an exchange of water from the Casetta pond. Water quality in the Casetta pond would inevitably be improved. Given the configuration of the bottom of the Casetta pond, with its deep troughs, a complete exchange of waters would not occur, and water quality in the Casetta pond would be likely to remain poor, albeit improved. The Harbor Point proposal would have short-term and long-term negative impacts upon water quality in the Harbor Point pond and in Lake Worth. Simply opening the Harbor Point pond and Lake Worth to exchange of poor-quality water with the Casetta pond would have a negative impact. As water quality in the Casetta pond improves, this impact will be lessened, but will remain. Furthermore, the proposed culvert would result in poorer flushing of the waters from the eastern extremity of the Harbor Point pond. This would occur as a result of increased water velocities in the western extremity. Water quality in the eastern extremity of the Harbor Point pond is already stressed, and reducing the flushing characteristics of the pond would be likely to result in violations of the Department's water quality standards in the eastern portion of the Harbor Point pond. While the Harbor Point proposal would have the ecologically positive impact of opening the Casetta pond to tidal flows, it would have the negative impacts of reducing water quality in the Harbor Point pond and potentially along the shoreline of Lake Worth. Water quality in the Casetta pond would thus be improved at the expense of water quality in the Harbor Point pond and in Lake Worth. Riparian Rights Harbor Point owns a narrow fringe of the northern border of the Casetta pond. The precise amount of the Casetta pond that is owned by Harbor Point cannot be determined from the evidence, but it is clear that Harbor Point owns some portion of the Casetta pond which may be at one point as much as six feet of the northern portion of the pond. The Casetta pond offers minimal amenity to Harbor Point. The pond is unsuitable for boating, bathing, swimming, or any commercial enterprise. The pond is largely blocked from view by Harbor Point residents by abundant mangrove and upland vegetation. Reconfiguration of the pond as proposed by Casetta would not change the northern boundary of the pond, and it would remain largely blocked from view by Harbor Point residents. To the extent that the Casetta pond provides a view for Harbor Point residents, it is only minimally attractive given the configuration of the pond and given the fact that a high-rise condominium has been constructed on property to the south of the pond. There is no evidence in the record from which it could be concluded that the value of Harbor Point property would be in any way reduced as a result of the projects proposed by Casetta.
The Issue The issue is whether Respondent Alexander J. Milanick should be required to pay attorney fees and costs in the amount of $4,976.00 to Petitioner Charles Osborne to compensate Petitioner for his defense of an ethics complaint filed with the Florida Commission on Ethics.
Findings Of Fact The Town of Beverly Beach, Florida has a population of about 600 located in Flagler County, Florida. It is about one mile from north to south, and occupies about .4 square miles. It is bounded on the west by the Intracoastal Waterway and on the east by the Atlantic Ocean. U.S. Highway A1A is the main north-south route through the town. Mr. Osborne is an aerospace engineer who served on the Beverly Beach Town Commission from 1997 through March 1999. He was mayor from March 1999 until 2001. He has lived at 2641 Osprey Circle, in Beverly Beach, in a home constructed at that location, since 1995. This residence is closer to the southern boundary of Beverly Beach than to the northern boundary. Dr. Milanick is a dentist who, along with his brother John, and a person named McGee, during times pertinent, owned land immediately north of Beverly Beach. On the property then and currently owned by Dr. Milanick, and east of A1A, is a restaurant named the Shark House. The premises has also been known as Crabby Joe's. In 1995, Dr. Milanick applied to the Town Commission to have his property, and that of his brother, and that of McGee, annexed into the town limits of Beverly Beach. He did this by asking a Mr. Taylor to do what was necessary to cause the annexation to occur. Mr. Taylor thereafter filed a petition with the Town Commission. By Ordinance 95-9-4, the Town Commission, in 1995, assented to the request and it was made effective November 15, 1995. The Ordinance purported to annex the Milanick property into the Town of Beverly Beach and to zone it general commercial. Mr. Osborne was not a member of the Town Commission and was not mayor during this time. The Ordinance, however, was defective in four ways. The Ordinance purported to annex the property into Bunnell, Florida; it was not properly signed by all commissioners; it was not publicly noticed; and it did not provide a legal description of the property. It was not filed with either the Flagler County Clerk of the Court or the Florida Secretary of State. The matter languished until 1997 when Dr. Milanick determined that his property had not in fact been moved within the boundaries of Beverly Beach. Dr. Milanick brought this to the attention of the Town Commission in October 1997. At a Town Commission meeting on December 3, 1997, the Town Attorney stated that he had not had a chance to look into the Milanick and Shark House issue. At a Town Commission meeting on February 4, 1998, Dr. Milanick inquired as to the progress being made on the annexation of his property and was told that the Town Attorney would get with him and discuss the procedure. Subsequently, the Town Attorney, Pat McCormick, suggested that it would be necessary to start the process from the beginning if the land was to be annexed. At a Town Commission meeting on March 4, 1998, Mayor Osborne stated that there was no benefit to the annexation of the Shark House. One member of the Town Commission suggested that they honor past commitments. Dr. Milanick was in attendance at this meeting. At a Town Commission meeting on May 5, 1999, Dr. Milanick and his brother again attended the Town Commission meeting and requested the annexation of their property and discussed the procedure that would be necessary. At a Town Commission meeting on June 2, 1999, a motion was made to go forward with Ordinance 95-9-4 and to amend the official city map and legal description to include the Shark House property. The motion passed but Mayor Osborne vetoed it. During a regular monthly meeting of the Town Commission on July 7, 1999, James Kearn, an attorney retained by Dr. Milanick, who was authorized to act for Dr. Milanick, appeared and requested that the Commission direct the Town Clerk to sign Ordinance 95-9-4 and to forward it to the county and the state in order to determine if the Ordinance was valid. This request was approved by the Town Commission. Mayor Osborne, vetoed the measure. Thereafter, the veto was over-ridden by the Commission. At a Town Commission workshop on July 21, 1999, there was additional discussion regarding the annexation of the Shark House. Mr. Kearn accused Mayor Osborne of discussing the Milanick annexation matter with Sid Crosby, Clerk of the Court of Flagler County. Mayor Osborne denied the charge. The discussion became heated and accusatory and Mayor Osborne threatened to have the sheriff eject Mr. Kearn from the meeting. Subsequent to the action of the Town Commission of July 7, 1999, the Town Clerk, Douglas Courtney, took Ordinance 95-9-4 to Syd Crosby, Clerk of the Court for Flagler County. In a memorandum dated July 26, 1999, Mr. Courtney reported to the Town Commission that Mr. Crosby would not file Ordinance 95-9-4 because it was defective. One of the defects cited was that the instrument purported to annex the land into the City of Bunnell, Florida. No creditable evidence was adduced which indicated that Mayor Osborne visited Syd Crosby for the purpose of preventing the recording of the annexation of Dr. Milanick's property. Mr. Crosby concluded from the beginning that Ordinance 95-9-4 was not recordable. Mayor Osborne suggested some solutions which would permit the annexation, including, re-submission of a proper application. Over a period of time some "glitch" bills were considered which would annex the land. However, none passed. Mr. Kearn attended the Town Commission meeting on February 2, 2000, and the minutes of the meeting noted that he was accompanied by "a person taking notes." Following this meeting, in a February 16, 2000, letter to Dennis Knox Bayer, Town Attorney, Mr. Kearn claimed that Mayor Osborne had a personal vendetta against Dr. Milanick, and that he was exercising dictatorial efforts to prevent citizens to speak at town meetings. He further demanded that ". . . all Town officials, including you as their representative, refrain from saying things that are simply and blatantly false, which only serve to incite Mr. Milanick." At a town meeting on March 1, 2000, Mr. Kearn complained about the annexation not being on the agenda and Mayor Osborne stated that a request for inclusion on the agenda had not been made in writing. Mr. Kearn was permitted to speak for three minutes, he spoke for three minutes, and immediately thereafter Mayor Osborne adjourned the meeting. On or about April 25, 2000, Dr. Milanick and his brother John, filed suit against the Town of Beverly Beach and Mayor Osborne personally, in the Circuit Court of the Seventh Judicial Circuit in and for Flagler County. The suit alleged that the Town of Beverly Beach and Mayor Osborne violated the civil rights of the Milanicks. The suit alleged that Mayor Osborne had a vendetta against Dr. Milanick and should be held personally liable to Dr. Milanick. The Circuit Court dismissed the civil rights count against Mayor Osborne and the town, and this dismissal was affirmed by the Fifth District Court of Appeal. The Circuit Court also dismissed the mandamus action, finding that the 30- day limitations' period for filing a petition for a writ of certiorari applied and that a prima facie case for mandamus had not been established. The Fifth District Court of Appeal, on October 19, 2001, remanded that count to the Circuit Court with directions to grant the petition for mandamus, but upheld the dismissal of the civil rights counts. On January 23, 2003, the Circuit Court entered its Alternative Writ of Mandamus. The Writ incorporated the allegations of Plaintiff's Complaint by reference and ordered that the Defendants take whatever steps necessary to sign and record Ordinance 95-9-4. When this occurred, Mr. Osborne was no longer an elected official of Beverly Beach. The Circuit Court complaint filed by Dr. Milanick recited that the recording of the ordinance did not occur because Mayor Osborne conferred with the Clerk of the Court to block recording of the ordinance. The adoption of the matters recited in the complaint as true, by the appellate court, does not make them proven facts because no evidence was taken in the case. The complaint, moreover, alleges actions, such as being tyrannical and peevish, which could not in any event constitute a violation of a person's civil rights. The complaint does not allege that Mr. Osborne took any action, as mayor, because he wished to obtain a personal advantage and does not allege that the annexation of Dr. Milanick's real property would affect Mr. Osborne's real property in terms of value or otherwise. As of the date of the hearing, Dr. Milanick's property had not been annexed into the corporate limits of Beverly Beach. Mr. Osborne, while serving as mayor, was not helpful in causing the annexation to occur and it is apparent that his relations with Mr. Kearn were not amicable. Mr. Osborne, while serving as mayor was irascible, intimidating, and controlling. Mr. Osborne believed that the annexation would bring no benefit to Beverly Beach and believed it would, "change the town's character." Mr. Osborne gained nothing directly or personally by preventing, or making difficult, the annexation of Dr. Milanick's land. As an elected official, he was permitted to advance his own ideas with regard to what he believed would be best for Beverly Beach and for himself as a citizen and property owner of Beverly Beach. He could act in this regard so long as he did not secure a special privilege, benefit, or exemption for himself, as opposed to a general benefit. A letter signed by Mr. Kearn dated July 18, 2003, accompanied by an affidavit signed by Dr. Milanick, requested that the Commission conduct an investigation into the activities of Mr. Osborne during the period when he was the mayor of Beverly Beach. For reasons which become apparent hereafter, this letter, which had the words "Via Airborne Overnight Mail" stamped on its face, will be hereinafter referred to as the "Airborne" letter. The following statements were contained in the "Airborne" letter: Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land into the Town as a general commercial, simply because he personally did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town. He also met with the former Clerk of Court for Flagler County, Mr. Syd Crosby, to persuade the Clerk to not record anything regarding the annexation of such land, in order to prevent the completion of the annexation. He thus plainly put his purely personal concerns, ahead of his duties as mayor, and fiduciary duty to the citizens of Beverly Beach. The mayor still refused to oblige the Town's request, or to honor the duly adopted resolution, for his own personal reasons, irrespective of his duties as mayor to the citizens of Beverly Beach.... Even worse, he met with the former Clerk of Circuit Court of Flagler County, Mr. Syd Crosby, to attempt to persuade Mr. Crosby to not record any ordinance presented by the Town, annexing the Milanicks' property. Mayor Osborne repeatedly ignored and defied the will of the Town to complete the annexation, to pursue his own personal agenda, i.e., stopping annexation of land as general commercial. The "Airborne" letter then parroted items that indicated that the Circuit Court had found to be true, as follows: Additionally, Mr. Osborne simply does not allow anyone to speak with whom he disagrees, or to address matter that he does not want addressed. Mayor Osborne has... refused to put the Milanicks' matters or requests on the Town Council agenda; taken action regarding the Milanicks' properties, without any notice to the Milanicks, or without knowledge by the Milanicks that such action was being taken against their property, as required by the Town's own law; refused to allow the Milanicks to speak to matters that affect their personal and property interests, once the Town Council had opened discussion regarding the annexation and zoning of the Milanicks' properties; blatantly and willfully misrepresented the Milanicks' positions, actions, and statements at Town meetings, beyond the scope of the privilege normally attendant to a politician's statements at such meeting, in order to defeat the Milanicks' requests, and to harm the Milanicks; refused to honor Ordinances passed by previous Town councils, as detailed above; refused to follow through with completing the annexation approved by previous council members of the Town; worked to undercut the recording of the completion of the signing of the ordinance, and the recording of the ordinance, to complete the annexation, all as detailed above. The matters in paragraph 25, are misleading because they indicate that the Circuit Court found these items to be true when in fact no evidentiary proceedings with regard to these items occurred in the Circuit Court. Moreover, the Complaint alleged several matters which Dr. Milanick either knew to be untrue, or should have known that it was untrue. Specifically, the Complaint alleged that Mayor Osborne "did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town." This allegation implies that he was acting for some personal and specific reason financial reason, as opposed to a general opposition to development. This allegation, had it been true, would have been actionable pursuant to Section 112.313(6) The Complaint also alleged that Mayor Osborne met with Syd Crosby in order to prevent the annexation of the Milanicks' property. This allegation, coupled with the allegation as to a financial interest, bolsters the asserted improper purpose. Based on this Complaint, the Executive Director of the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate, which was filed with the Commission on September 26, 2003, and assigned Complaint Number 03-091. Investigator Travis Wade of the Commission was directed to conduct a preliminary investigation into whether or not there was probable cause to believe a violation of Section 112.313(6), Florida Statutes, had occurred. That section reads as follows: (6) Misuse of public position.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. Mr. Osborne learned of the Determination of Investigative Jurisdiction and Order to Investigate and thereafter retained Robert J. Riggio, of the firm of Riggio & Mitchell, P.A., located in Daytona Beach, as his attorney. Mr. Riggio worked on the case from October 24, 2003, until September 29, 2004. He charged $150 per hour, which is below the customary charge in the Daytona Beach area, and the hourly rate therefore, is reasonable. He expended 33 hours which is reasonable. He expended $180 in costs. These expenditures totaled $4,976 which was billed to Mr. Osborne. He paid the bill. On April 6, 2004, a second letter dated July 18, 2003, was sent to the Commission by Mr. Kearn by facsimile. This will be referred to as the "Fax" letter. This was precipitated by a request to Mr. Kearn from Investigator Wade that he provide a copy of the original letter. The "Fax" letter differed from the "Airborne" letter. In the second paragraph of the "Fax" letter the following sentence appears: "Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land just north of Mr. Osborne's manufactured home . . . ." And in the fourth paragraph of the "Fax" letter, the following sentence appears: "The Mayor objected, because it would serve to annex land as general commercial, just north of his own manufactured home." It further stated that his motivation was ". . . stopping land as commercial near him." Mr. Kearn testified under oath that when Investigator Wade was discussing the case with him, that he, Mr. Kearn, realized the "Fax" letter was a draft that had been sent to Investigator Wade in error. Mr. Kearn said that the "Fax" letter was a draft that had subsequently been edited by Dr. Milanick who knew, July 18, 2003, that Mr. Osborne did not live in a manufactured home located immediately south of the property which was sought to be annexed. Mr. Kearn said that it the "Airborne" letter was supposed to be the operative document. He said that he realized that the "Fax" letter was being used by Investigator Wade when he was talking to him on the telephone on June 8, 2004, and that he advised Investigator Wade of the error. He testified that he made it perfectly clear to Investigator Wade that the "Airborne" letter was the operative document. Investigator Wade's Report of Investigation, however, recites that during the telephone interview of Mr. Kearn, that Mr. Kearn advised him that Mr. Osborne resided in a mobile home community immediately south of the Milanick property, while he served as mayor and that Mr. Osborne's interest in stopping the annexation was to use his position for his personal benefit. At the hearing, Investigator Wade stated under oath that Mr. Kearn advised him during their telephone conversation that Mr. Osborne resided in a mobile home community immediately south of the Milanick property while he was serving as mayor. Investigator Wade stated that the issue of whether or not Mr. Osborne lived in the immediate vicinity of the Milanick property was the key element in his investigation because if that were true, stopping the annexation could be a personal benefit to Mr. Osborne. Mr. Wade was a disinterested and credible investigator and witness and his testimony is taken as true and accurate. Mr. Osborne did not live in either a manufactured or mobile home. The type of home he lived in is irrelevant. What is relevant is that Mr. Osborne did not live adjacent to, or in the vicinity of, the Milanick property. In fact, Mr. Osborne did not live near the north side of town. He lived closer to the south side of town and it is unlikely that the annexation of the Milanick property would have an economic effect on Mr. Osborne's property. Mr. Kearn was aware of Mr. Osborne's resident address because he had him served with a civil suit at his residence in 2000. Mr. Kearn knew that Mr. Osborne did not live in a mobile home community, or in a manufactured home near the Milanick property, or anywhere near it. Nevertheless, he asserted that to be true when he talked to Investigator Wade. Mr. Kearn is the attorney and agent of Dr. Milanick. Mr. Kearn is, therefore, the alter ego of Dr. Milanick so that the actions of Mr. Kearn, are the actions of Dr. Milanick. The Commission, found in their Public Report, dated September 8, 2004, that Mr. Osborne's opposition to the annexation was not connected to any desire to secure a benefit for himself. The Commission dismissed the Milanick complaint on a finding of "no probable cause."
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter an order requiring Dr. Milanick to pay Mr. Osborne $4,976.00. DONE AND ENTERED this 1st day of July, 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 1st day of July, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Kearn, Esquire James J. Kearn, P.A. 138 Live Oak Avenue Daytona Beach, Florida 32114-4912 Gary S. Edinger, Esquire 305 Northeast First Street Gainesville, Florida 32601 Martin A. Pedata, Esquire Martin Pedata, P.A. 505 East New York Avenue, Suite 8 DeLand, Florida 32724 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
