The Issue Whether Petitioner carried his burden of proving his good moral character and entitlement to a yacht salesperson's license under chapter 326, Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, the oral and documentary evidence, and the record as a whole, the following Findings of Fact are made: Stipulated Facts Respondent is the state agency charged with enforcing chapter 326, the Yacht and Ship Brokers Act, and the administrative rules promulgated thereunder. On June 8, 2016, Petitioner submitted to Respondent an application for a yacht salesperson's license. On Petitioner's application, the application question, number 14, relating to criminal history, was answered "yes." Petitioner failed to attach a complete and signed statement of the charges and facts, together with the dates, names, and location of the court in which the proceedings were held or were pending, as required by the application for the yacht salesperson's license. On October 12, 2012, Petitioner entered a plea of guilty to conspiracy to commit bank and wire fraud, a felony, in the United States District Court, Southern District of Florida, Miami Division, in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was adjudicated guilty of conspiracy to commit bank and wire fraud in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was sentenced to 57 months' incarceration in the custody of the United States Bureau of Prisons in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was sentenced to three years of supervised release following incarceration in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was ordered to pay $6,567,496.00 in restitution in case number 1:1220156CR-UNGARO. On April 22, 2016, Petitioner was released from incarceration and placed under supervised release, set to expire on or about April 21, 2019. Petitioner failed to certify to Respondent that Petitioner has never been convicted of a felony in Petitioner's application for a yacht salesperson's license. Petitioner timely received a copy of Respondent's Notice of Intent to Deny License Application on July 19, 2016. Petitioner completed programs in Residential Drug Abuse Treatment Program, the Wellness Program, and the Community Treatment Services Program at Dollan Mental Health Clinic. Petitioner served his time without issue. Petitioner has been sponsored by a South Florida yacht broker who is going to supervise his activity as a yacht salesman. Facts Adduced at the Hearing Pursuant to chapter 326, Respondent has regulatory jurisdiction over yacht and ship licensees and is responsible for the approval or denial of applications for licensure for yacht salespersons and yacht brokers. Petitioner's younger sister, Beatriz Llorente, who is a practicing real estate and criminal defense attorney, testified. She described Petitioner as a "father figure" to her. She testified that Petitioner's conviction for conspiracy to commit bank fraud "devastated" her, because she felt that her reputation was being questioned.1/ When she drove him to federal prison, Petitioner "asked her for forgiveness." She was familiar with his prison experience. As far as she knew, Petitioner had no disciplinary problems in prison and was awarded maximum gain time. Furthermore, his 57-month sentence was reduced to less than two and one-half years. Despite his incarceration and current probation status, she stated that he is very active with his children and shares a great deal of time with them. He told her, "I will work for the rest of my life to regain your trust." His sister is convinced that Petitioner has overcome his faults, and she emphatically stated he is of good character. On cross-examination, she testified that Petitioner had no drug or alcohol problems when he was growing up, but they arose during the years preceding his conviction. An attorney friend of Petitioner's, Francisco Pines, testified. Pines has known Petitioner since 1988. They attended school together. More recently, their families have interacted and spent time together. They participated together in recreational activities, such as boating and fishing, before Petitioner's incarceration for the federal crime. Since Petitioner was released from prison, Pines has had contact with him three or four times. Pines was also asked about Petitioner's character. In his view, Petitioner knows that what he did was wrong and has made changes to get his life in order. Pines testified that Petitioner is very loving, caring and nurturing with his children. The witness has seen a "change for the better." According to him, Petitioner has always demonstrated a strong work ethic, more so now than before the criminal incident. A licensed mental health counselor, Sandra Rico, was also called by Petitioner. Beginning in 2011, she provided mental health therapy and counseling to Petitioner related to his anxiety due to a crisis in his marriage. She determined that he used and abused alcohol to relieve this anxiety. She treated him on and off until 2013. She also emailed him while he was in federal prison to make sure that he was getting continued treatment for his anxiety and alcohol abuse issues. After he was released from prison, Rico counseled him once a month from July 2016 through the fall of 2016. Her current treatment with him is more in the nature of prevention and maintenance, and to help him develop coping skills. She testified that the therapy he received in prison helped him and that Petitioner changed while in prison. As examples, she cited that he is more involved and willing to do more of her treatment assignments and that he now journals his feelings. Rico related that she is surprised by Petitioner's progress and that she believes he is no longer drinking. He is making better choices and being more careful. She opined that he gathers his thoughts more deliberately now, primarily because he wants to impress his children and reach "goals" he has set for himself. In her opinion, he is of good character now. His treatment with her continues "as needed." Lazaro R. Navarro is the chief executive officer at Florida Yachts International and manages approximately ten sales associates. He has known Petitioner's family for over 15 years. When Petitioner was released from federal prison, the family asked Navarro if he would consider employing Petitioner and sponsoring him. He gave Petitioner a job doing "online marketing," which involved managing leads and performing back office work. Navarro characterized Petitioner as a great asset to his company and trustworthy. He has no doubts about Petitioner and his work habits. Petitioner arrives at work early and is usually the last one to leave. Petitioner has exceeded all of his expectations, and is a very dedicated employee. As the employing yacht broker, Navarro supervises Petitioner and ensures that all of his work is done correctly. Although no details were offered, Navarro testified that Petitioner has accepted full responsibility for his criminal conduct and is a great father. Based upon the financial procedures and protocols used at Navarro's yacht company, he testified that Petitioner would not need to handle or accept any cash as a part of his sales responsibilities. Instead, finances and money exchanges are handled and processed by a closing specialist and the chief financial officer.2/ Navarro commented that he would trust Petitioner with money handling, if that occasion arose. Petitioner offered his own testimony. He received a Florida real estate license in February 2005 and worked for his cousin as a real estate salesperson until 2008. He was indicted for conspiracy to commit bank and wire fraud in March 2012. This federal indictment stemmed from activities in 2006 while he worked as a licensed real estate salesperson. He confirmed that he visited with Rico for mental health counseling related to problems with his wife, as well as anxiety related to the government's criminal investigation of him in 2009. Although his prison sentence did not include mandatory alcohol or drug treatment, he followed the advice of a psychiatrist at the prison and voluntarily enrolled in a residential drug and alcohol abuse treatment program. He also participated in a health and nutrition wellness class for nine weeks. He completed both programs successfully. While in prison, he took several foreign language classes, thinking they would be useful for the yachting business. He also participated in a hazmat (hazardous materials) program outside the prison on a naval base. Apparently, a Navy Admiral retained him for the program. Also, while in prison, he was hired on the naval base to provide cleaning and maintenance services at a dormitory. He was allowed to serve a reduced prison sentence-- 32 months of his 57-month sentence, and he was released six months early to go to a halfway house. While there, he became eligible for home confinement. He was released from home confinement in April 2016. Although he is still under supervised release (probation), he is no longer required to make personal visits and can report to his probation officer remotely through the Internet. He is jointly and severally liable for over $6 million in restitution with the other defendants in his criminal case. It was undisputed that he is current with his restitution payments of $151.00 each month. Petitioner is active in his Catholic Church and gave "his testimony" at a recent church retreat. He characterizes his relationship with his children as being one of honesty and emphasized that it is important to have God in his life. When Respondent called requesting additional information for his application, he promptly provided his federal Termination Report and Certificates of Completion. Pet. Exs. 3, 4, and 5. Petitioner expressed a passion for boating and believes he is good at sales. He wants the yacht salesperson's license, in part, so that he can pay off the criminal restitution more quickly. He claims to no longer act impulsively and believes that his children are the most important thing in his life. On June 8, 2016, Petitioner submitted to Respondent an application for a yacht and ship salesperson's license. On Petitioner's application, he answered question number 14 "Yes," indicating that he had a criminal history.3/ Applicants who answer "Yes" to question number 14 on the application are directed to attach a complete and signed statement of the charges and facts, together with the dates, names, and location of the court in which the proceedings were held or are pending.4/ However, Petitioner failed to submit this statement. When asked about this omission, Petitioner testified, "I turned back for the next one (question), and I didn't bother looking. It shows part of impulsive behavior." Petitioner thought the information request at the bottom of the page he overlooked was simply a part of the next question.5/ Respondent obtained a Florida Department of Law Enforcement criminal background check on Petitioner, which indicated that, on October 12, 2012, Petitioner pled guilty to conspiracy to commit bank and wire fraud. Resp. Ex. 4. Certified court records obtained by the Division indicated that Petitioner was adjudicated guilty of conspiracy to commit bank and wire fraud in violation of 18 U.S.C. § 1349, a felony, and sentenced to 57 months' incarceration in the custody of the United States Bureau of Prisons with three years of supervised release following incarceration. Petitioner was ordered to pay $6,567,496.00 in restitution.6/ Notably, Petitioner's federal "Judgment In A Criminal Case" included Special Conditions of Supervision. This included a "Related Concern Restriction." Petitioner testified that this provision prohibited him from "touch[ing] funds" while under supervised release. His employer at Florida Yacht International wrote a letter, ultimately filed with the probation office, that Petitioner "would not be dealing with any funds." Resp. Ex. 1, pp. 1-7.7/ Petitioner certified on his application that, in February 2005, he was licensed as a real estate sales associate in the state of Florida, having been issued license number SL3111375. Petitioner testified that, in order to become a real estate sales associate, he completed a pre-licensing course; applied with and was approved to take the state licensing exam by the Department of Business and Professional Regulation; and passed the Florida Real Estate Sales Associate Examination. Petitioner stated that, at the time, he was familiar with the laws regulating the profession of real estate contained in chapter 475, Florida Statutes.8/ Petitioner testified that between 2005 and 2008, he worked as a real estate sales associate for Llorente Realty Group, under a supervising broker, Petitioner's cousin. While employed there as a Florida licensed real estate sales associate, Petitioner engaged in an illegal real estate fraud scheme which lead to his 2012 federal criminal conviction. On several occasions, Petitioner provided up to $150,000.00 of his own funds to make seven or eight improper short-term loans of approximately ten to 15 days each. Petitioner made a profit of approximately eight to ten percent per loan.9/ Petitioner testified that these transactions involved buying houses under an individual's name (the straw buyer) and, after closing, executing a quitclaim deed to transfer title of the property to one of the co-conspirators, to whom Petitioner had made the loan. The property was subsequently transferred to the co-conspirator's family trust, leaving the outstanding mortgage in the name of the straw buyer. When the straw buyer failed to pay the outstanding mortgage, the lender would initiate foreclosure proceedings against the straw buyer who was no longer in possession of the property. This fraudulent scheme was carried out against several lending institutions. After the lenders became aware of the scheme, a criminal investigation was initiated. The government characterized his involvement as a breach of his fiduciary duty. In mid-2009, Petitioner was notified that he was under federal investigation for his involvement in the "straw buyer" scheme. After finding out about the investigation, Petitioner began to have relationship problems with his wife and to abuse alcohol. This prompted him to see Rico, a licensed mental health counselor. On March 8, 2012, Petitioner was indicted on eight counts related to the bank fraud scheme. On October 12, 2012, Petitioner entered a plea of guilty and was adjudicated guilty of conspiracy to commit bank and wire fraud, a felony, in the United States District Court, Southern District of Florida, Miami Division, in case number 1:1220156CR-UNGARO. Resp. Ex. 1. Petitioner was incarcerated at Pensacola Prison Camp beginning March 1, 2013. Petitioner earned eight months' "gain time" off of his sentence. Additionally, while incarcerated, Petitioner completed the RDAP, Residential Drug and Alcohol Treatment Program, which qualified Petitioner for a 12-month reduction in his sentence. Due to these reductions and good behavior, Petitioner served only 32 months of his 57-month sentence in federal prison. During his incarceration, Petitioner also completed a nine-week wellness course on various subjects such as nutrition and exercise and worked at Naval Air Station Pensacola, Corry Station Naval Technical Training Center, and the Pensacola Prison Camp. On October 27, 2015, Petitioner was released to a halfway house and shortly thereafter began working for Navarro at Florida Yacht International as a clerk. On November 10, 2015, Petitioner became eligible for home confinement, and, by April 18, 2016, Petitioner completed TDAPT, a transition recovery program. On April 21, 2016, Petitioner was released from custody, and, on April 22, 2016, he was placed under supervised release, currently set to expire on April 21, 2019. Petitioner testified that he has paid $6,000.00 towards the restitution he owes in the amount of $6,567,496.00. As previously mentioned, this restitution is owed with several co- conspirators who are jointly and severally liable with him. Resp. Ex. 1, p. 5. Petitioner testified that he is up to date on required payments pursuant to the order of restitution. Navarro monitors and supervises Petitioner's work and is ultimately responsible for Petitioner under his own yacht broker license. Petitioner is also currently employed as a part- time driver for Uber. In compliance with the Related Concern Restriction of his criminal conviction, Petitioner has not been placed in a position of trust or responsibility over sums of money at Florida Yachts International. Petitioner stated that upon obtaining a job as a clerk with Florida Yachts International, Navarro was required to certify to Petitioner's supervisors through the halfway house that Petitioner "would not be dealing with any funds," pursuant to the "Related Concern Restriction" of Petitioner's Special Conditions of Supervision.10/ Resp. Ex. 1, p. 4; Resp. Ex. 4, p. 51. Following his release from incarceration, Petitioner continues to see Rico for therapy sessions on a monthly basis. Rico provided a letter of recommendation for Petitioner. As mitigation and in an effort to show his good moral character, Petitioner testified that he is not abusing alcohol anymore, has made substantial efforts to reconnect with his children, and has maintained a close relationship with his sister both before and after his incarceration. Licensed yacht salespersons are not restricted and may work under any licensed yacht broker. They may also switch their registered broker if they wish to work for someone else. Additionally, salespersons become eligible to apply for their own yacht and ship broker license after two years as a salesperson. A representative of Respondent, Chelisa Kirkland, testified for Respondent. A yacht salesperson's license is only required for the sale of used or pre-owned vessels in excess of 32 feet. Vessels less than 32 feet and new vessel sales of any size do not require a license. Kirkland confirmed that Petitioner's probation, or court supervision, does not end until April 2019. Applying the statutory and rule criteria, Respondent denied Petitioner's application for a yacht salesperson's license. More specifically, Respondent was concerned about the nature and seriousness of the federal crime, particularly because Petitioner held a professional real estate license at the time the criminal bank fraud offenses were committed. Additionally, as of the date of the application, Petitioner's government supervision and probation had not been completed, and there was a very significant amount of restitution still owed, in excess of $6,000,000.00. Finally, Respondent felt that there had not been a significant passage of time since the conviction in 2012. As a result of the totality of these circumstances, Kirkland recommended that Petitioner's application be denied. She acknowledged that her recommendation was based solely on the conviction for conspiracy to commit bank and wire fraud. She conceded that Florida law does not impose an "automatic" denial just because Petitioner owes restitution, is still under supervision, or was convicted of a federal crime.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes, confirm its previous denial and enter a final order denying Petitioner's application for a yacht salesperson's license. DONE AND ENTERED this 13th day of February, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 February, 2017.
Findings Of Fact Thomas A. Baggett, Respondent, is a Tampa Bay Pilot licensed by the State of Florida and holds license number 000045. He was so licensed at all times relevant to the charges here involved. On December 13, 1985, the United States Coast Guard held a hearing concerning the Coast Guards charge of negligence against Baggett for his piloting of the T/B Bulkfleet Pennsylvania. At that hearing Baggett pleaded guilty to and was found guilty of the charge that he was negligent while piloting the T/B Bulkfleet Pennsylvania on November 19, 1985, which resulted in this vessel running aground in the vicinity of Cut "C" Channel, Hillsborough Bay, Florida. At the time of the grounding of the T/B Bulkfleet Pennsylvania, Baggett was acting under the authority of his Coast Guard license number 486856 and was subject to the jurisdiction vested in the Coast Guard under 46USC 7703 or 7704.
The Issue The issue is whether Respondent, a Florida-licensed yacht salesman, should be disciplined for violation of Rule 61B- 60.006(2), Florida Administrative Code, as alleged in the Administrative Complaint dated May 10, 2000.
Findings Of Fact At all times pertinent to the issues herein, DBPR, through its Division of Florida Land Sales, Condominiums and Mobile Homes (the Division) was the state agency in Florida responsible for the licensing and discipline of yacht salespersons and brokers in this state and the regulation of the yacht-brokering profession. Respondent, Justo Lamar (Lamar), has been licensed as a yacht salesperson since November 1976. Prior to this action, Lamar has never been the subject of disciplinary action arising out of the practice of his profession. This action was precipitated by a yacht owner, Juan A. Galan (Galan), who unsuccessfully attempted to sell his yacht to a client of Lamar's. In July 1998, Galan listed his yacht, the Caliente, for sale through Ardell Yacht and Ship Brokers (Ardell). The listing resulted in negotiations for the purchase of the Caliente by one Larry Griggs (Griggs), a prospective customer represented by Lamar. At all times relevant to this case, Lamar was acting as a sales agent for Allied Marine and its broker, Dwight Tracy (Tracy). As set forth in more detail below, the negotiations between Galan and Griggs took place over a three-month period from October 1998 through December 1998 with no meeting of the minds. On July 12, 1999, some seven months after negotiations between Griggs and Galan terminated, Galan lodged a complaint with DBPR. Although the complaint was ostensibly directed against salesman Lamar and broker Tracy, each and every allegation in the complaint was directed to the broker's conduct, not Lamar's. Galan, who did not testify at final hearing, alleged in his complaint that "Broker presented a contract representing that deposit had been received/deposited (upon acceptance). In fact, broker never deposited check and we wasted our time and money on survey/sea trial as buyer was not (at that time or any time later) financially capable of buying boat @ $1.75 million." Galan provided some, but by no means all, of the documents which revealed the details of the prolonged and ultimately unsuccessful negotiations between Galan and Griggs. In the narrative portion of his complaint, Galan asserted that he lost money on sea trials and implied, without actually stating, that the Caliente had been taken off the market during the pendency of negotiations with Griggs. For reasons which remain unclear, the Division did not focus its investigation on Tracy, who was the obvious target of Galan's complaint. Instead, it targeted Lamar, who was an obvious add-on target of Galan's ire. The exhibits reveal a complex series of offers and counteroffers and jockeying for negotiating advantage, not just between Galan and Griggs as prospective Seller and Buyer of the Caliente, but also between Lamar and the two brokers, all three of whom stood to profit if the transaction were consummated. Negotiations for the Caliente began in late October 1998. On October 30, 1998, Lamar's client Griggs, through a corporation he controlled, issued a $150,000 check for "Deposit, 72' (sic) Caliente Sportfisherman." This check accompanied a Brokerage Purchase and Sale Agreement dated October 29, 1998, offering to purchase the Caliente for $1,500,000. That same day, Galan's representatives faxed Lamar to advise that Griggs' offer was insufficient. Lamar forthwith provided the check to his broker, Tracy. Negotiations between Galan and Griggs continued in November. Galan chose to by-pass his own Broker and negotiate directly with Lamar over lunch on November 18, 1998. Lamar wrote Galan's demands on the back of a restaurant placemat. The primary sticking point was Galan's insistence on a "bottom line" of $1,665,000 to him, after all commissions and other expenses, if any, were paid. Griggs nevertheless persevered in his effort to buy the Caliente for $1,500,000. On November 24, 2000, Griggs executed another Brokerage Purchase and Sale Agreement in which he offered an entity called Majua, Inc., of which Galan was President, the opportunity to sell the Caliente to Griggs for $1,500,000. Galan signed the November 24 agreement, but added an addendum which materially changed the terms. The addendum unilaterally purported to raise the sales prices to Galan's previously stated "bottom line" of $1,665,000. Thanksgiving passed, and negotiations wore on. On December 4, 1998, Griggs executed a third Brokerage Purchase and Sale Agreement, raising his offer to $1,755,000. The new offer expressly stipulated that Griggs' $150,000 earnest money check could be deposited when and if all parties executed this new proposed agreement. Like the October 29 and November 24 brokerage purchase and sale agreements, the December 4 document never ripened into a contract. The December 4 document was a clear and unembarrassed reminder from Griggs that an earnest money check had been written by Griggs, but was not on deposit, and was not going to be on deposit until such time as Galan had signed off on the contract as written by Griggs. Galan nevertheless permitted a sea trial of the Caliente in furtherance of negotiations, now in their fifth week. Also as part of the negotiating process, Galan permitted some, but not all, of the inspections requested by Griggs. Expenses for the sea trial and inspections were borne entirely by Griggs. By Christmas Eve, relations between the parties had deteriorated to the point where Lamar retrieved the check from the Allied Marine corporate files and returned it to Griggs. At no time did negotiations with Lamar's client Griggs preclude or interfere with efforts by Galan to negotiate with and sell the Caliente to any other prospective purchaser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DBPR enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 1st day of March, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 March, 2001.
The Issue Whether Broward County should issue an Environmental Resource Permit (the "ERP" or "Permit") to Palm Beach Polo Holdings, Inc., for the construction of five finger piers as sized, configured, located and approved by Broward County's Proposed Permit issued in 2007?
Findings Of Fact The Port Laudania Property Port Laudania is a privately-owned marina basin (the "Marina Basin" or the "Basin") in Broward County. Located just off the Dania Cut-off Canal south of Port Everglades, the Marina Basin is not far from the Atlantic Ocean and the Intra-coastal Waterway that lies along all of Florida's east coast. There are no fixed bridges or other impediments to the passage of large sea-going boats and ships between the Basin and the Atlantic. The Marina Basin is an ideal spot to berth large vessels such as yachts and those used in the ocean-freight shipping business. PBPH owns the submerged lands in the western approximate two-thirds of the Basin as well as adjacent uplands. Together, these submerged lands and uplands constitute the parcel located at 750 N.E. 7th Avenue in the City of Dania (the "PBPH Parcel"). Immediately adjacent is a parcel owned by C-Term, a Florida general partnership. Located at 760 N.E. 7th Avenue in Dania, the uplands at the address and the approximate eastern one-third of the Marine Basin (the part not owned by PBPH) comprise the "C-Term Parcel." The PBPH Parcel and the C-Term Parcel make up the Port Laudania Property. Prior to a conveyance in 1987 that divided the Port Laudania Property into two parcels, the property had been under common ownership. The entire property was owned in fee simple by Dennison Marine, Inc. ("DMI"). Just prior to the division of the property into two parcels, DMI conveyed an easement that would ensure that owners and lessees of both parcels would have unhindered access from the Dania Cut-off Canal to their respective parcels: a Cross-use Easement of Ingress and Egress (the "Cross-use Easement"). The Cross-Use Easement for Ingress and Egress On June 29, 1987, DMI executed the Cross-Use Easement.2/ Earlier, DMI had divided the Port Laudania Property into two parcels (Parcel I and Parcel II in the Cross-use Easement, referred-to in this order mainly as the C-Term Parcel and the PBPH Parcel, respectively) and had entered into an Agreement for Deed and Lease with Port Denison, Inc., for the purchase and sale of one of the two parcels. The transaction subject to the agreement had not yet occurred so that DMI remained the sole owner of the Port Laudania Property on the date the Cross-Use Easement was established. The Cross-Use Easement contains the following: WHEREAS, both Parcel I and Parcel II share an inlet off of Dania cut-off Canal, . . . WHEREAS, it is to the mutual advantage of the present and future owners, tenants, invitees, etc. of both Parcel I and Parcel II that the entire inlet be available to the owners of the other parcel for the purposes of ingress and egress; NOW THEREFORE, . . . Denison Marine, Inc., with the consent of Port Denison, Inc., does hereby for itself and its successors and assigns, give and grant to the future owners, tenants and future tenants of all or any portion of the Property, their respective customers, employees, agents, invitees, successors and assigns, a non-exclusive easement for ingress and egress over and across the inlet as described in Composite Exhibit "C" hereto. This non-exclusive easement shall run as a covenant with the land and constitute [sic] an appurtenance thereto. Petitioners' Ex. 1 at 0164-0165. Composite Exhibit "C" of the Cross-Use Easement contains sketches and descriptions of both the "Easterly Portion of the Marina," see id. at 170-171, (the C-Term Parcel) and the "Westerly Portion of the Marina," see id. at 172-173 (the PBPH Parcel.) The descriptions include the entire Basin except for that occupied by the boat lift in the northern end of the Basin.3/ Neither the legal descriptions nor the surveys attached to the Cross-Use Easement depict any finger piers, docks or pilings in the Basin. Under the Cross-Use Easement, the ability of the parties to amend the rights granted therein is governed by the following: This Agreement may be altered, amended or terminated by written document executed by all the then fee simple title holders of all portions of the Property and then record holders of any first mortgages then encumbering any of said lands and recorded in the public records of Broward County, Florida. Petitioners' Ex. 1, second page, BK 1490 PG0165. C-Term has not agreed to amend the Cross-Use Easement to permit construction of the docks contemplated by the 2007 Notice of Intent and Proposed Permit. The rights conferred by the Cross-Use Easement are property rights that govern the use of the Basin. The Basin and the Cut-off Canal The Basin is man-made and frequently referred-to in documents that relate to it as an "inlet" off the Dania Cut-off Canal. Small and medium-sized pleasure crafts, large yachts, mega-yachts,4/ and commercial cargo vessels, some of which are as lengthy as 250 feet regularly pass through The Dania Cut-off Canal in the area of the Basin immediately south of its mouth. Aerial photographs show that the Basin was excavated in the early 1960's. Shortly after excavation, the Port Laudania Property was used as a commercial cargo terminal. Since at least 1967, the Basin has accommodated cargo vessels with lengths up to 250 feet give or take 15 feet. Petitioners' Exhibit 145 is an aerial photograph that shows vessels of approximately 250 feet on both sides of the Basin. For the approximately 250-foot vessel on the east side of the Basin (the C-Term side), the margin of error in measuring the vessels from the aerial is "[p]robably 10 feet, plus or minus." Tr. 1049. G&G has operated numerous vessels in the Basin at lengths of over 200 feet. Of the seven vessels that G&G owned or operated at the time of hearing the maximum length is 234 feet. From April 1999 to March 2006, vessels owned or operated by G&G have struck finger piers or docks on the PBPH side of the Basin "a handful of times." Tr. 893. None of the details of these collisions was produced at hearing. Standard procedure for such incidents would have been to file an internal report or a captain's report, but Mr. Ganoe could not remember whether a report was filed.5/ For his part on the PBPH side of the Basin, Mr. Straub is not aware of any G&G vessels hitting boats moored at the finger piers on the PBPH side of the Basin, indicating that the collisions were not serious. In contrast to evidence that collisions have occurred is evidence from one frequent navigator of the Basin, Jim Steel of Steel Marine Towing. With the exception of the years in college, Mr. Steel has towed vessels in the area of Broward County consistently since 1988 when he began towing with his father at the age of 12. The range in length of the vessels, both commercial and private, that Mr. Steel has towed is from 120 to 250 feet. Mr. Steel has towed hundreds of vessels in and out of the Basin. During those times, he has observed various dock and finger pier configurations. He never collided with the docks on the PBPH side of the Basin with his tugboat or the vessels he towed even when the fifth finger pier was 150 feet long during the time period from 1995-96. Mr. Steel described the Dania Cut-off Canal in the vicinity of the Basin as a congested area with a number of facilities that cater to marine traffic. Large motor yachts (100 feet to 150 feet in length), mega-yachts (longer than 150 feet), commercial vessels (up to 250 feet), smaller pleasure craft as well as other smaller boats comprise the traffic seeking access to facilities along the canal. The facilities include Harbortown Marina across the canal from the Basin, which has some spots for large motor yachts and berths for hundreds of smaller boats up to 90 feet. Facilities in the area that serve mega- yachts are Director's Shipyard, Powell Brothers, and Playboy Marine. In the last five years, new facilities have been opened along the canal for smaller pleasure craft: American Offshore, Dania Beach Club and Dusty's. Mr. Steel described their function, "[t]hey are . . . what you would call rack and stack," (tr. 1562) storing boats sized from 20 to 40 feet pulled in an out of the water and stacked with a forklift. There are eight or nine such facilities west of the Basin. Mr. Steel estimated each of these facilities house at least several hundred boats. Mr. Steel summed up the traffic in the canal: "Some bright sunny days, it is extremely congested, some days it is not as congested, but there's always traffic there." Tr. 1550. 2001: The Delegation Agreement On May 22, 2001, an agreement was entered by three parties. Entitled "Delegation Agreement Among the Florida Department of Environmental Protection, The South Florida Water Management District and Broward County" (the "Delegation Agreement"), it delegated to Broward County's EPD "the authority for permitting, compliance, and enforcement on behalf of the Florida Department of Environmental Protection and the South Florida Water Management District programs." Joint Pre-hearing Stipulation, para. 1, at 11, 12. "Section 11E. of the Delegation Agreement provides that permits issued by the County under the Delegation Agreement 'shall consolidate in a single document the permit under part IV of Chapter 373 of the Florida Statutes, and any required Environmental Resource License' ("ERL") required under Chapter 27 of the Broward County Code of Ordinances ("BCC" or "Code").[']" Joint Pre-hearing Stipulation, para. 2, at 12. In April of 2002 or thereabouts, Broward Yachts submitted an after-the-fact application to EPD for an ERP and an Environmental Resource License (the "Dock Application"). "The Dock Application sought approval to install six total docks [finger piers] comprised of five [finger piers composed of] floating docks in the Basin, with lengths ranging from 150 feet to 190 feet, and one dock, in the canal parallel to the seawall, with a length of 240 feet." Joint Pre-hearing Stipulation, para. 4, at 12. Although the docks were on the PBPH Parcel of the Port Laudania Property, the application was not PBPH's, the owner; instead it was submitted by Broward Yachts, a PBPH tenant. PBPH and C-Term Tenants From November of 1998 to March of 2005, Broward Yachts, Inc. ("Broward Yachts")6/ leased the PBPH Parcel from PBPH for the purpose of manufacture and sale of private yachts and boat dockage. Broward Yachts sold certain of its assets to Lewis Property Investors, Inc., under an Asset Purchase Agreement dated March 2, 2005. On March 8, 2005, Lewis Property Investors' assigned its interest in the Asset Purchase Agreement to Broward Marine. Broward Marine is a Florida limited liability company, formerly engaged in the business of manufacturing, selling and servicing private yachts and activities that constituted operation of a marina on the PBPH Property. Broward Marine leased the PBPH Property starting in March of 2005. It continued to occupy the property under a lease-purchase option agreement with PBPH until June of 2009. C-Term's Property is the subject of a tenancy with G&G, an ocean-freight shipping company. G&G, therefore, has shared the Marina Basin with Broward Marine in recent years. Broward Marine's Departure In March 2009, Broward Marine signed an early termination of its lease with PBPH caused by Broward Marine's failure to pay rent. Broward Marine has not been a tenant or otherwise in possession of the PBPH Property since approximately November, 2009.7/ The termination of Broward Marine's lease was effective on June 15, 2009. After termination of the Broward Marine lease, the PBPH Property was re-let to Broward Shipyards, Inc., an entity that is not a party to this proceeding. At the time of the termination, Broward Marine's interests in the 2002 Dock Application and a revision of the application in 2003 (the "2003 Revised Application") were assigned to PBPH.8/ In the meantime, PBPH has pursued the application which had its origin in a complaint about the unpermitted structures and a warning notice issued by the County in 2002. See paragraph 35., et seq., below. The application for the license and permit was for floating docks. Floating Docks The floating docks used by Broward Yachts and others on the PBPH side of the Basin generally come in sections of 8-10 feet. They are secured to existing pilings in the Basin by a collar which slides up and down the piling or, as Mr. Lewis put it at hearing, "[t]hey float up and down . . . as the tide comes in and goes out." Tr. 204. The top of the piling emerges from the water and the rest of the piling extends downward generally into the bedrock at the bottom of the Basin. A series of floating docks make up a finger pier. Finger piers, the structures authorized by the Proposed Permit, can be lengthened or shortened by adding or removing floating docks based on business needs.9/ The ability to easily lengthen or shorten a finger pier in response to the business needs of PBPH or its tenants accounts for one of the main evidentiary features in this proceeding: the many finger pier configurations that appear in aerial photographs over the years and, in particular, since 1998 when PBPH came into ownership of the PBPH Parcel. The floating docks have been constructed of wood and Styrofoam. Those that PBPH seeks to install under the Proposed Permit will be "concrete bathtubs," tr. 580, which "work just as well and are a lot more permanent." Id. Structures made of concrete are of much likely to cause damage in the event of a collision with a vessel than are floating docks made of wood and Styrofoam. Warning Notice and 2002 Dock Application On January 22, 2002, the EPD visited the PHPB Property in response to a complaint about unlicensed docks. Julie Mitchell (then known as "Julie Karczyk"), a Natural Resources Specialist with the County was present on the property during the visit to conduct an inspection. In a Case Summary admitted into evidence, Ms. Mitchell documented the visit with an employee of the State Department of Environmental Protection. The two visitors asked the manager of the property to provide a copy of permits and licenses for the docks on site. If he could not provide them he was advised of the necessity to apply for them. At the time of visit, there were four finger piers composed of floating docks on the PBPH side of the Basin. The four piers protruded into the Basin at an angle similar to the angle of the finger piers shown in the drawings approved by the Proposed Permit. These four docks (from north to south) had lengths of 117, 130, 150 and 150 feet respectively and were each 7.5 feet wide. The northernmost dock was separated from the second dock (the dock immediately to its south) by 52 feet; the second dock was separated from the third by 60 feet; and the third from the fourth by 55 feet. There was also a fifth structure. It may have been a fifth finger pier, but, because of its width which is substantially more than the 7.5 feet, see Petitioners' Ex. 114F (an aerial photograph with a "fly date" of January 2002), it is more likely to have been "work platforms to construct the docks." Tr. 114. Whatever its function, the fifth structure did not protrude into the Basin as far the four others. It was "[r]ight up against the seawall." See id., Petitioners' 125 at 5, and tr. 114. Ms. Mitchell checked the County records and could not locate a license or permit for finger piers or other structures in the Basin. No evidence of a license or permit was provided by either PBPH or any of its tenants. The status of the finger piers and floating docks today remains the same: unlicensed and unpermitted. The County required Broward Yachts as the tenant of the PBPH Property to submit an after-the-fact permit and license application if it wished to keep the structures. Broward Yachts submitted its application for an ERP and Environmental Resource License ("ERL") to the County (the "2002 Dock Application") on April 16, 2002. In the meantime, Broward Yachts installed an additional finger pier in the Basin angled from the seawall just as the four piers observed by Ms. Mitchell. The installation occurred without County authorization. On May 2, 2002, the County issued Warning Notice No. WRN02-0125 (the "Warning Notice"). Directed to both Broward Yachts and PBPH, the Warning Notice contains one count. See Petitioners' Ex. 7. The count reads as follows (bold type in original): Respondent: Broward Yachts, Inc. Respondent: Palm Beach Polo Holdings, Inc. Violated section 27-333(a)(1), BCC, which states: "No person shall conduct or cause to be conducted mangrove alteration, construction, demolition, dredging or filling in regulated aquatic or wetland resources, except in accordance with a currently valid environmental resource license issued by DPEP and all general and specific license conditions therein." By: constructing docks and installing pilings without a valid DPEP Environmental Resource License. Corrective Action: The respondent must apply for an after- the-fact license from the Department for the dock construction and piling installation. The license will not be issued until the respondent obtains a South Florida Water Management District Right-of-Way permit for the pilings located within the Dania Cut-off Canal. Correct within 14 days of this notice. Id. The 2002 Dock Application was filed on April 16, 2002 (prior to the Notice of Warning.) In the meantime and subsequent to the Notice of Warning, the County conducted a review of the 2002 Dock Application. The 2002 Dock Application The 2002 Dock Application was signed by Paul Bichler of Tri County Marine. Mr. Bichler and his company are listed on the application as the "Entity to Receive Permit," see Respondents' Ex. 3 at 3-4, and Bill Thomas of Approved Permit Services, Inc., is listed as the "Agent Authorized to Secure Permit." Id. The owner of the land is shown as Richard Arnold, General Manager of Broward Yachts. Mr. Arnold signed the application in order to give Mr. Thomas the authority to act as the agent of Broward Yachts in securing the permit. There is no mention of PBPH in the application. Part 8 of the 2002 Dock Application requires the applicant to describe in general terms the proposed project, system or activity. Filled in is: "Install Floating Docks!" Id. at 3-5. No other description is offered. The application contains as attachments a map of the site showing the Port Laudania Property and a drawing of Parcel A at the site (the PBPH Parcel.) The drawing shows six finger piers to be installed. Five are attached to the western seawall of the Port Laudania Property at such an angle so that they lie in the Basin in a southwesterly direction (much the same as the four finger piers observed in January of 2002 by Ms. Mitchell). The lengths of the five range from 150 to 190 feet. The fourth and fifth finger piers are proposed to be 180 feet and 155 feet in length, respectively. The sixth pier lies roughly parallel to the southern terminus of the bulkhead on the PBPH Parcel and extends into the mouth of the Basin. Unlike the other five, the sixth structure is not attached to the western seawall. To the south of the bulkhead and with no attachment to the bulkhead, it runs 240 feet in length. At its eastern end, it overlaps the boundary between the Basin and the Dania Cut-off Canal and protrudes into the canal. Id. at 3-9. The drawing also depicts pilings associated with each of the six structures. The floating docks applied for in the 2002 Dock Application were to be made out of Styrofoam and wood. Permitting Criteria/County Review The County's evaluation and processing of the 2002 Dock Application was conducted appropriately pursuant to the Delegation Agreement. Section (1) of Florida Administrative Code Rule 40E-4.30210/ (the "ERP Additional Conditions Rule") requires an applicant to "provide reasonable assurances that the construction, alteration, operation, maintenance, removal, and abandonment of a system" will meet conditions contained in subsections (a) through (d).11/ For systems located in, on, or over surface waters that are not Outstanding Florida Waters, such as the finger piers and floating dock systems proposed by PBPH, reasonable assurances must be provided that the activity "will not be contrary to the public interest [the "Public Interest Test"] . . . as determined by balancing"12/ seven criteria listed in the ERP Additional Conditions Rule: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangerment or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Of the seven criteria, above, the two deemed most relevant and determinative for the EPD in processing the 2002 Dock Application were 1., and 3., that is, whether the activity will adversely affect public safety, the property of others, and navigation. The County considered the proposed sizes, locations and configuration of the docks as shown in the drawing attached to the application. It had no navigational experts on staff and did not consult with outside navigational experts. Nonetheless, the County considered the nature of the use and whether it would adversely affect safety and navigation. The County also considered an objection to the location of certain pilings and a "future floating pier along the south edge of the basin at Port Laudania." Petitioners' Ex. 8 at 4. The objection had been lodged by the Port Everglades Pilot's Association in a letter dated May 1, 2002: Port Everglades Pilots are responsible for insuring the maximum level of safety of commercial vessels transiting the water of Port Everglades and Port Laudania. * * * I am writing to you in reference to some pilings that have been driven by Broward Marine for what appears to be a future floating pier along the south edge of the basin at Port Laudania in Broward County, Florida. This is the basin that is shared by Broward Marine and G&G Shipping and located within the City of Dania Beach. These pilings are affecting the safe navigation of commercial vessels that have already been using the basin at Port Laudania for many years. Vessels docked at this new pier will pose additional risk to navigation. * * * I would like to go on record stating that the location of these pilings and potential pier is not satisfactory as it hinders the navigation of commercial vessels using the basins at Port Laudania. Id. The letter is signed by Captain James J. Ryan, Managing Pilot for the Port Everglades Pilots' Association. The County acknowledged receipt of the application in a letter dated August 16, 2002, and informed Broward Yachts' agent that the "application for license is incomplete." Petitioners' Ex. 8. The letter requested prompt submission of the information listed on an attached sheet and warned that failure to submit it within 60 days of the request could result in denial. Two items were found omitted or incomplete in the application. The first was a "South Florida Water Management District right-of-way permit for the pilings located within the Dania Cut-off Canal." Petitioners' Ex. 8 at 2 of 3. The second was a response to the navigation issue posed by the Port Everglades Pilot Association. Id. The County's letter advised that upon a showing of resolution of issues posed by the omissions, the Department would process the application as an ERP since the applicant was allowed by a state administrative rule to apply for an ERP concurrently with an ERL. To that end, the letter requested payment of an additional $700 fee. Id. Four other items were also requested for submission. Five months later, Broward Yachts' agent wrote Ms. Mitchell listing seven responses as "the additional information you requested." Petitioners' Ex. 9. With regard to Item 2, the letter states: 2. I am working with Dan Boyer who is handling the Right of Way permit @ SFWMD, I am also addressing same issue with him, if I can demonstrate that a boat when moored at the proposed dock will not extend more than 25% into the canal, he will recommend to the Board of Governors that the project be approved. I am waiting for a signed and sealed survey to show the exact width of the waterway at this location. Petitioners' Ex. 9. With regard to Item 3, the agent responded, "[c]heck enclosed." The letter did not respond to all the requested information. For example, with regard to requested information concerning the anticipated use of the dock proposed within the Dania Cut-off Canal, whether boats would be moored on both its sides, and the anticipated length and draft of the boats, the agent responded, "I will need to get back to you about this one!" Id. Together with a memorandum dated July 21, 2003, the agent submitted revised drawings for the permit (the "2003 Revised Dock Application" or the "Revision"). The Revision removed any portion of the structures or pilings from the Dania Cut-off Canal in order to avoid the requirement for a SFWMD Right-of-Way Permit. Instead of the six finger piers shown in the 2002 Dock Application, the Revision showed seven. Six were similar to the five that angled into the Basin in a southwesterly direction from where they touched the western seawall. The six piers ranged from 120 feet in length to 150 feet in length. The seventh was similar to the sixth finger pier in the 2002 Dock Application but was depicted as being only 60 feet in length. It no longer protruded into the Dania Cut-off Canal. See Petitioners' Ex. 10 at 2. A memorandum to the file dated August 11, 2003, shows that Ms. Mitchell faxed the drawings in the 2003 Revised Dock Application to the Port Everglade Port Association. The memorandum reported that Captain Ryan responded by saying "he no longer had any objections to the project because the structures had been removed from the ROW [of the Dania Cut-off Canal]." Petitioners' Ex. 11. The memorandum also reported that Captain Ryan stated that there still may be navigational and safety concerns with the proposed pier lengths and locations, and that there may be special circumstances for ships wanting to use the basin such as, navigation during slack tide only, daylight only, and other factors that would exacerbate the concerns. Six weeks or so later, Ms. Mitchell signed a letter from the County. The letter, dated September 29, 2003, advised Broward Yachts that the additional information submitted in response to the January 2002 request had been received. It also advised that the project required an Environmental Resource License (in addition to the ERP) and that the application for such a license had been received. To fully evaluate the project, additional information was needed. This second request for additional information consisted of one item: [1] A Cross Access Agreement (attached), recorded on October 27, 1987, states that "the entire inlet be available to the owners of the other parcel for the purposed (sic) of ingress and egress." The Department has received objections from the adjacent property owner that the proposed docks, specifically the most southern 150-foot-long dock, may hinder the navigation of commercial vessels using the basin. Please provide evidence that the proposed docks will not negatively affect the safety and navigation of vessels using the basin. Petitioner's Ex. 12, Completeness Summary, Environmental Resource License Application at 2 of 2, (emphasis added.) The additional information requested was not provided by Broward Yachts or any other party. On October 6, 2003, Ms. Mitchell forwarded a copy of the Cross-use Easement to the County Attorney's Office and asked for it to be reviewed "to confirm that the [easement] pertains to both facilities [the applicant's and G&G's] and that G&G has a basis for their objection." Petitioners' Ex. 13. The objection by G&G was expressed as: "the most southern proposed finger pier will hinder [G&G's] ability to safely navigate their vessels." Id. Attached is a drawing that depicts seven docks. Opinion of the Broward County Attorney's Office In response to Ms. Mitchell's request, an opinion of the Broward County attorney's office was issued on October 31, 2003. The opinion addresses two questions: first, does the Cross-use Easement pertain to both facilities operated by Broward Yachts and G&G; and, second, does G&G have a basis for its objection. Both questions were answered in the affirmative with the following elaboration on the second question: The Easement includes granting a non- exclusive right to the successors of Port Denison, Inc. to use "all or any portion of the Property . . . for ingress and egress over and across the inlet as described in Composite Exhibit C. . ." The Property referred to in Exhibit A includes all of Parcels I and II. Composite Exhibit C is made up of a sketch and legal description of the easement area, with each Parcel having its own description and sketch. The physical structures referred to that limit the easement are the wetface of the bulkhead and the boat hoist structure. The easement rights granted are not similarly limited by reference to docks or piers that may have existed around the time that the easement was granted. This reading of the easement is consistent with the intent of the parties, as clearly reflected in the last "Whereas" clause which reads: " . . . it is to the mutual advantage of the present and future owners, tenants, invitees, etc. that the entire inlet be available to the owners of the other parcel for the purposes of ingress and egress." Since G&G Shipping's objection is related to the use of the inlet for ingress and egress with reasonable reference to navigation safety, and G&G Shipping accommodates uses that it does not anticipate will interfere with such activities, its objection to the license application has a basis in its easement rights. While the additional correspondence from Broward Yachts dated October 11, 2003, refers to an undated photo showing floating docks that are asserted to exist "around the time that the agreements were drawn-up for cross access," this photo doesn't control or limit the terms of the Easement, which grants the use of the entire inlet to both parties. Petitioners' Ex. 16 at 1-2. Another RAI On December 16, 2003, the County sent another request for information (RAI) to Broward Yachts (the "December 16, 2003 RAI." The request stated, "[y]our response dated October 14, 2003, does not adequately address the navigational and safety concerns stated in our letter [of September 29, 2003]." Petitioners' Ex. 17. The December 16, 2003, RAI referenced the County attorney's October 31, 2003, Opinion which "concluded that G & G Marine, Inc., does have a legal basis for their objection to the docks." Id. The December 16, 2003, RAI concluded: [T]he Department has not received reasonable assurances that the proposed docks will not negatively affect navigation and safety, nor have we received a response regarding the objections. It is the intent of this letter to inform Broward Yachts, Inc. (applicant) and Mr. Bill Thomas (agent) that the license application will be closed, pursuant to Section 27- 55(d)(4), if all requested information is not provided within ten (10) days of the receipt of this letter. Id. Broward Yachts requested an additional 90 days to provide the information. The request was granted. A second request to extend the time for providing the information another 90 days was denied by the County. The County Holds its Position Correspondence dated July 8, 2004, from Larry Zink, Esquire, requested reconsideration of the County's October 31, 2003, Opinion. The County responded in a letter dated July 21, 2004. See Petitioners' Ex. 22. The July 21, 2004, letter refers to "additional information, such as Mr. Denison's Affidavit and references to Florida case law," id. and then concludes: After consideration and based upon the Easement, Broward Yachts' letter of October 11, 2003, [Mr. Zink's] letters of May 5, 2004, May 21, 2004, and July 8, 2004, Mr. Denison's affidavit, Florida law, and G&G Shipping's objections dated November 5, 2003 and April 13, 2004, the conclusion that G&G has a basis for its objection to the Project is still correct . . . . Id. The July 21, 2004, letter addresses Florida Law with regard to the Cross-Use Easement: Florida Law: You have asserted that "[t]he Florida Court's have held that to determine the scope of an easement the Court's attempt to ascertain the intent of the parties in light of the surrounding circumstances at the time the easement was created," referencing the cases of Hillsborough County vs. Kortum and Florida Power Company vs. Silver Lake Homeowners Assn. However, the following more completely summarizes the relevant case law standards: The construction or interpretation of an easement is not evidentiary; it is a matter of law. Hillsborough Co. v. Kortum, 585 So.2d 1029 (Fla. 2nd DCA 1991), rev. denied, 598 So.2d 76 (Fla. 1992). The determination of the extent and nature of an easement granted or reserved in express terms by deed depends upon a proper construction of the language of the instrument, for an examination of all of the material parts thereof, and without consideration of extraneous circumstances. Kotick v. Durrant, 143 Fla. 386, 196 So. 802 (1940). An easement holder has the right to do what is reasonably necessary for the full enjoyment of the easement, but the right must not be increased to any greater extent than reasonably necessary and contemplated at the time the easement was created. Crutchfield v. F.A. Sebring Realty Co., 69 So.2d 328 (Fla. 1954). However, rights of the owners of an easement are not absolute and unlimited. The owner of the servient estate may use [the] land, including the easement, in such a way that will not interfere with the easement owner's right of passage. Tortoise Island Communities, Inc. v. Roberts, 394 So.2d 568 (Fla. 5th DCA 1981). (String citations have been omitted for brevity.) As you may know, the Circuit Courts of Florida have exclusive original jurisdiction over all actions involving title and boundaries of property. See Section 26.012(2)(g), Florida Statutes. Therefore, it is the Seventeenth Judicial Circuit Court that has jurisdiction and authority to determine the relative title interest rights of Broward Yachts and G&G in relation to the Project. The Office of the County Attorney respectfully declines to act in a role which is the proper jurisdiction of that Court. Within the limited scope of the previous and instant reviews, it is merely apparent that G&G objects to the Project and holds a title interest which, on its face, could be negatively affected by the Project. Therefore, it has a basis for its objection. Id., paragraph 2, at page 2 of 3 (emphasis added.) The County determined that Broward Yachts had not provided reasonable assurances that the Project would not adversely affect safety and navigation and would not violate the Cross-Use Easement. In light of the determination, the County sent a memorandum on July 21, 2004, see Petitioners' Ex. 23, requesting such assurances (the "July 21, 2004, RAI"). The July 21, 2004, RAI recognized that the issue with regard to the Cross-Use Easement was the subject of litigation between Broward Yachts and G&G Marine, but in the meantime requested reasonable assurances with regard to the navigation and safety issues or "have your client amend its application to resolve this concern." Id. As with the December 16, 2003, 10 RAI, the July 21, 2004, RAI was required to be answered in 10 days. The County hoped that a response would provide guidance from a navigational expert that the new docks would not affect the ability of other vessels to come in and out of the Basin. Denial and Petition for Review By the end of January 2005, the ten-day period for submitting additional information relative to the 2003 Revised Dock Application had expired. No information relative to safety and navigation concerns or compliance with the Cross-Use Easement had been submitted. By letter dated January 31, 2005 (the "Application Denial"), the Broward County EPD announced its decision to deny the application based on a lack of "reasonable assurance that the proposed docks will not negatively affect navigation and safety, nor violate the Cross-Use Easement . . . ." See Joint Pre-hearing Stipulation, para. 7 at 13. The County's intent in issuing the Application Denial was to deny both the ERL and ERP. The parties stipulated to what happened next: Broward Yachts filed a Petition for Review of Final Administrative Determination, Environmental Resource License Application No. DF03-1121, Environmental Resource Permit Application No. 06-0194386-001 (the "Administrative Review Petition") with EPD on February 7, 2005, challenging the denial of its "license and permit applications." The Administrative Review Petition invoked the procedures of Chapter 27, BCC. Joint Pre-hearing Stipulation, para. 8 at 13. The Administrative Review Petition did not invoke the procedures of Chapter 120, Florida Statutes. Pursuant to an internal procedure, the Administrative Review Petition was reviewed by the Department Director. After an independent review, the Department Director upheld the denial. That decision was communicated to Broward Yachts in a letter dated March 11, 2005, signed by Eric Myers, Director of the Broward County EPD. See Petitioners' Ex. 41. The March 11, 2005, letter proposed a compromise that related to an aerial photograph taken at roughly the time of the submission of the 2002 Dock Application. The photograph showed four finger piers ranging in length from 130 to 150 feet. The County offered to permit such a configuration if Broward Yachts modified its application. Broward Yachts was apparently unwilling to do so. Broward Marine Involvement The denial of the 2002 Dock Application was directed only to the application filed by Broward Yachts. Likewise, the Administrative Review Petition was filed solely by Broward Yachts. In March of 2005, however, Broward Marine took over the possession and operation of the PBPH Property from Broward Yachts. It also purchased the assets of Broward Yachts, including the 2002 Dock Application and the 2003 Revised Application. Response to the County's Proposal In June of 2005, the County met with representatives of Petitioners to discuss acceptable dock configurations. Petitioners advised that they would accept a configuration consisting of four docks extending into the Basin at a southeasterly angle and that they would be amenable to a fifth dock parallel and immediately adjacent to the southern portion of the PBPH bulkhead. The County presented the proposal to Mr. Zink, counsel for Broward Yachts, Broward Marine and PBPH in a letter dated July 11, 2005. Mr. Zink responded by letter dated July 14, 2005. The letter references: "Broward Yachts, Inc. - Floating Docks" even though at the time the 2002 Dock Application and the 2003 Revised Dock Application had been assigned to Broward Marine. The one paragraph letter reads: I am in receipt of Michael Owens July 11, 2005 letter regarding the above matter. Though my client does not agree the 2002 aerial photos are historically representative of the number of floating docks, Broward Yachts is submitting herewith a revised drawing dated July 13, 2005 which accepts what is proposed in paragraph two (2) of Mr. Ownens July 11, 2005 letter. Petitioners' Ex. 54, (emphasis added.) The revised drawing, that was neither signed nor sealed, was attached to Mr. Zink's letter. It shows five floating docks "ALL 7'6" WIDE," id. at second page, four of which are angled into the Basin in a southeasterly direction, none of which are more than 150 feet in length. It also shows a fifth dock that lies immediately adjacent to the eastern seawall of the bulkhead on the PBPH property so that it does not angle into the Basin at all. It is 200 feet long and stops short of the south end of the bulkhead so as to be well clear of the Dania Cut-off Canal. Mr. Zink's acceptance of the proposal on behalf of Broward Yachts did not, however, lead to a resolution. The County asked for two additional matters: signed and sealed drawings from an engineer and that PBPH, as the owner of the property, become the applicant. PBPH Steps In Through a letter dated October 20, 2005, Mr. Zink agreed to the two additional demands of the County. The letter enclosed "sealed drawings for the above applications." Respondents' Ex. 6. The applications were referenced in the letter as ERL and the ERP for "Broward Yachts - Floating Docks," but the letter stated, "[a]s per your E-mail of August 25, 2005, a Revised Application identifying Palm Beach Polo Holdings, Inc. as the property owner will be submitted to you directly by my client." Id. The signed and sealed drawings that were submitted did not reflect the proposal made by the County and agreed to by Mr. Zink on behalf of his client in July of 2005. The drawings showed one finger pier immediately alongside the western seawall of the bulkhead and five finger piers composed of floating docks that angled into the Basin. The signed and sealed drawings showed six finger piers instead of five and five finger piers that angled into the Basin instead of the four envisioned by the agreement finalized by Mr. Zink's letter on July 14, 2005. In a letter dated November 11, 2005, and received on November 16, 2005, that was characterized by Mr. Zink as "a follow up on my October 20, 2005, letter to [the County]," Petitioner's Ex. 7, Mr. Zink enclosed two documents: "1) Original executed Application on behalf of Palm Beach Polo Holdings, Inc. 2) Drawing prepared by Frank L. Bennardo, P.E., depicting the docks." Id. The letter dated November 11, 2005, was not accepted for reasons outlined in an e-mail message from Julie Mitchell to Eric Myers. See Petitioners' Ex. 69. In the wake of the message, the County continued to process the 2003 Revised Dock Application. In a letter dated December 16, 2005, with the same reference line used in his earlier correspondence ("Re: Broward Yachts, Inc. - Floating Docks"), Mr. Zink submitted "(2) Revised Drawings prepared by Frank L. Bennardo, P.E., Inc. dated 11/30/05 depicting the five (5) finger piers as per the July 13, 2005, conceptual drawing approved by DPEP." Petitioners' Ex. 75. As represented by Mr. Zink, the drawings matched the configuration proposed by the County in its letter of July 11, 2005. At this point in the series of events initiated by the Notice of Violation in 2002, the parties would have been justified in thinking that an agreement had been reached, that the ERL and ERP could be issued and that all files on the matter of the Broward County EDP could be successfully closed. Mr. Lewis on behalf of Broward Yachts expressed the sentiment at hearing: [I]n the course of that same period, [Mr. Ganoe] was concerned about turning vessels where the fifth dock was. And we put a buoy in the basin where the length of a boat extending beyond that pier would be, he had given us a radius of what he wanted. We had McLaughlin Engineering take that, and I can't remember how many feet that he wanted clear in that area, plotted it on a drawing, went over it with him, thought we had an agreement. Tr. 181 (emphasis added.) Between the County's July 2005 proposal and Mr. Zink's December 16, 2005, letter that appears to have finalized the proposal's acceptance, however, a disruptive event occurred. The event caused destruction in the Basin, halted businesses on both of its sides and stressed the resources of the County: Hurricane Wilma. Hurricane Wilma Hurricane Wilma destroyed most of the docks and pilings in the Basin. In the wake of the destruction, Broward Marine submitted an application to the County for the issuance of a general license (the "General License") to repair and re- install pilings and ramps. The difference between projects that require an ERL, such as the project at issue in this proceeding (which required both an ERL and an ERP), and those that require only a general license was explained by Ms. Mitchell at hearing: "A general license is for smaller projects, specifically for docks where the total overwater area is less than 500 feet . . . ." Tr. 386. A Broward County general license was also distinguished from the ERP at issue in this case. Projects for which the overwater area is less than 1,000 feet are not subject to ERPs. The general license was approved in a letter issued by EPD's Wetlands/Uplands Resources Section: This letter is to inform you that your request for a General License has been granted. General License No. GL- DAN0512-029 authorizes the installation of ten (10) pilings and five (5) floating ramps, adjacent to 750 NE 7th Avenue, in the City of Dania Beach. Respondents' Ex. 9 at 9-2. The General License authorized pilings and ramps only; it did not authorize floating dock structures such as finger piers. The approved project description was attached to the January 6, 2006, letter. It shows the approved project to be pilings installed within the Basin at certain distances from the seawall. For the northernmost four set of pilings the distances range from 115 feet to 150 feet. The distance from the seawall of the fifth set of pilings (the southernmost set that corresponds to the fifth finger pier applied for in the ERP application) is 75 feet, a distance significant to safety and navigability. Notwithstanding that the General License did not authorize finger piers, Broward County installed finger piers in the Basin. The installation of finger piers was done without an ERL or an ERP. When asked why a Notice of Intent was not issued that reflected the parties' putative agreement at the end of 2005, Ms. Mitchell replied, "To be honest, I don't recall because there was so much settlement going on outside of our department with the attorneys, I don't remember exactly why it ended up going [to hearing.]" Tr. 397. The record is unclear as to why a Notice of Intent was not issued. It may have been because of the interruption and destruction of Hurricane Wilma and the confusion it caused when country resources were diverted to other pressing matters. It may have been because of lack of communication between all of the parties and their attorneys. Or, it may have been because of objections from Broward Marine that are referenced in Petitioners' Ex. 69 as to the November 16, 2005, submission of information. The objections are counter to Mr. Zink's letter of December 16, 2005, and inconsistent with Mr. Lewis' recall of having reached an agreement in mid-2005. Whatever the reason, a Notice of Intent for an ERL and an ERP authorizing finger piers and floating docks as referenced in Mr. Zink's December 16, 2005, letter was not issued. In March of 2006, the 2002 Dock Application and the amendment to it in the 2003 Revised Application proceeded to hearing before a Broward County Hearing Examiner because of their denial by the County. The March 2006 Hearing, the Final Order and the Omnibus Order The hearing was held on March 30, 2006. There were two parties to the proceeding: Broward Yachts, Inc., as the Petitioner, and Broward County Environmental Protection Department. Aside from the County, none of the parties to this proceeding13/ (DOAH Case No. 08-1393) were parties to the proceeding before the Hearing Examiner. In his Final Order, the Hearing Examiner described those who participated or were present: At the hearing, the Environmental Protection Department was represented by Michael Owens, Esquire, who presented the testimony of Julie Krawczyk, Natural Resource Specialist II. The Petitioner was represented by Larry Zink, Esquire, who presented the testimony of Glenn Straubb [sic], the President of Palm Beach Holdings, Inc. Also in attendance at the hearing was Steve Ganoe, President of G&G Marine, Inc. ("G&G") Respondents' Ex. 10. The Hearing Examiner entered the Final Order on June 5, 2006. The Final Order found that "these docks, is some shape or form, have existed in this area for over twenty one years and have been used for substantially the same purpose for those years." Id. at 10-2. The order further found "that no competent substantial evidence was presented that would support or warrant the denial of the license and permit sought by the Petitioner [Broward Yachts] to maintain its existing docks." Id. at 10-3. The order concluded, "The administrative decision denying the license/permit to maintain the docks is quashed and the matter is remanded to EPD to take appropriate action in accordance with the terms of this Final Order." Id. The order is based on the following finding: The only relevant standard to this proceeding . . . is . . . whether the docks will adversely affect public safety or welfare or the property of others. No evidence was presented that the docks, which have been in existence since 1985, have ever caused an accident or that they impede G&G's reasonable use of the easement. Moreover, while the EPD does have the right to regulate these docks and the navigable water upon which the docks rest, the easement area is not generally travelled by the public and more or less serves as an entrance to only two businesses, G&G and that of the Petitioner. Id. Broward County filed a motion for reconsideration of the Final Order. G&G filed a motion for rehearing and/or reconsideration as a "nonparty." See Respondents' Ex. 11. Both motions were considered in an order entitled "Omnibus Order Granting in Part and Denying in Part Post Hearing Motions." Respondents' Ex. 12. The County's motion was denied. The motion of G&G's was granted in part. The motion was found to request relief not inconsistent with the Final Order. "Specifically, G&G requests that the Final Order prohibit the installation of additional docks and prohibit increasing the size of the existing docks." Id. at 12-2. The Omnibus Order grants the following relief: Petitioner may maintain the five existing docks and repair and replace them, but may not do so in a manner that causes any of the docks to protrude at a greater length or distance into the waterway. Additionally, Petitioner may not construct or maintain any docks other that the five existing docks. Id. at 12-2, 12-3. Neither the Final Order nor the Omnibus Order contains a finding of fact as to the configuration of docks at the time of the hearing conducted by the Hearing Examiner. There is evidence in the record of this case (DOAH Case No. 08-1393) that the five docks existing on March 30, 2006, were configured consistently with the pilings authorized by the General License, that is, they had lengths beginning with the northernmost dock of 135, 135, 150, 150 and 75 feet, respectively. At the time of the final hearing in this proceeding, moreover, the docks were present in the Basin in approximately the same configuration as existed in March of 2006. The 2006 and the 2007 NOIs On October 23, 2006, the County issued a Notice of Intent (the "2006 Notice of Intent") to issue a combined permit/license for the construction of the five docks ranging from 132 feet to 192 feet in length. The 2006 Notice of Intent was issued solely because the County believed it was required by the Hearing Examiner's Final and Omnibus Orders. See Tr. 405. The configuration of docks authorized by the 2006 Notice of Intent resembled the July 2005 Proposal accepted by Mr. Zink on behalf of Broward Yachts: four docks angled into the Basin in a southwesterly direction with one additional dock parallel and adjacent to the seawall. The County did not conduct any evaluation of its own between the dates of the Hearing Examiner's Final and Omnibus Orders as to whether the configuration authorized by the 2006 Notice of Intent had unacceptable impacts to navigation and safety. The draft permit attached to the 2006 Notice of Intent contains several sets of conditions. DEP General Conditions, Broward County EPD General Conditions and ERP and ERL Specific Conditions ("Specific Conditions"). The Specific Conditions were included under the County's authority to impose conditions necessary to carry out the intent of the ERP and ERL permitting regulations. Specific Condition 18 is "Mooring of vessels with lengths exceeding the length of the permitted structures is prohibited." Respondents' Ex. 13 at 13-17. The purpose of including Specific Condition 18, as testified by Eric Myers, Director of the Broward County EPD at the time the 2006 Notice of Intent was issued, "was to make sure that . . . adequate navigation was maintained within the Basin." Tr. 560. G&G challenged the 2006 Notice of Intent by filing a petition for formal proceedings with EPD seeking a clarification in interpretation with regard to the lengths of vessels to be moored in the PBPH side of the Basin vis- à-vis the length of the permitted structures. Broward Marine also filed a Petition for Formal Proceedings challenging the 2006 NOI. In furtherance of discussions with the County, Broward Marine, by letter dated June 26, 2007, submitted four surveys for consideration by the County. The first purported to show the dock configuration existing after Ms. Mitchell's January 2002 visit but before the submission of the Permit Application; the second purported to show the dock configuration on December 11, 2003; the third showed the dock configurations sought by Broward Marine; and the fourth showed all configurations overlapping. None of the surveys depicted the dock configuration existing on January 22, 2002, the date of the Ms. Mitchell's visit, which was the configuration the County had requested Broward Yachts to submit for approval. The County did not transmit the G&G petition or the Broward Marine petition to DOAH. Instead, on or about August 23, 2007, EPD issued another Notice of Intent to Issue Permit/License (the "2007 NOI") to PBPH. The 2007 NOI identifies the proposed project as the Broward Yachts Marine Facility, with permit No. 06-0194386-001 and License No. DF03-1121 and lists the Permittee/Licensee as "Palm Beach Polo Holdings, Inc." Respondents' Ex. 14 at 14-9. With respect to the factors considered by the County in issuing the 2007 NOI, it provides: The Department reviewed the information presented in the petitions, the Hearing Examiner's Final Orders, and surveys provided by Broward Marine with a letter dated June 25, 2007, and as a result has reformulated the draft permit and agency action. Respondents' Ex. 14 at 14-3. The 2007 NOI also referred to an earlier NOI and draft permit issued on August 2, 2007. On August 8, 2007, EPD was notified of typographical errors in the August 2, 2007, NOI. As a result of the typographical errors and other previous errors, the 2007 NOI stated, "this Notice hereby supersedes the October 23, 2006, and August 2, 2007, Notices of Intent to Issue and draft permits/licenses." Id. The Proposed Permit and the draft Environmental Resource License attached to the 2007 NOI allows PBPH to construct five floating finger piers as detailed in a section of the Proposed Permit entitled "PROPOSED PROJECT DESIGN," as follows: The proposed project is to construct five (5) floating finger piers in an existing privately-owned marina basin. From north to south, the finger piers shall have the following sizes: (1) 7.5-foot-wide by 122-foot-long pier; (2)7.5-foot-wide by 135.8-foot-long pier; (3) 7.5-foot-wide by 150.5-foot- long pier; (4) 7.5-foot-wide by 150.5- foot-long pier; and (5) 7.5-foot-wide by 152.6-foot-long pier. All five (5) finger piers shall be placed sixty-five (65) feet apart and angled in a southeasterly direction from the existing seawall, as depicted on the attached drawing. The total over-water area of the structures shall be 5,378.25 square feet Respondents' Ex. 14 at 14-10. The dock configuration authorized in the Proposed Permit is the same dock plan depicted in Exhibit C to the June 25, 2007, letter from Broward Marine to the County. The County issued the 2007 NOI, revising the dock configuration from what it had authorized in the 2006 NOI, due to objections from Broward Marine that the configuration in the 2006 NOI was not consistent with the Final Order and the Omnibus Order. The Proposed Permit also eliminated Specific Condition 18 that was in the 2006 NOI. It did not impose any restriction or limitation on the length of vessels that may be moored at the proposed finger piers, and PBPH indicated at hearing that it would moor vessels alongside the finger piers whose lengths exceeded the piers.14/ In addition to elimination of Specific Condition 18, there were other significant differences between the 2006 NOI and the 2007 NOI. For example, the 2007 NOI allows all five finger piers to be placed 65 feet apart and angled in a southeasterly direction from the seawall. In contrast, the 2006 NOI provided that the southernmost pier of the five would be placed immediately parallel to the seawall so that it did not jut out at all into the Basin. The 2007 NOI contemplates that the structure of the finger piers would be more permanent. The 2003 Revised Application had sought floating docks, of the type existing at the time made of Styrofoam and wood, as opposed to fixed piers. The concrete pilings and the concrete tub floating docks contemplated by the 2007 NOI are more permanent than the existing wood pilings and the wood and Styrofoam docks. Eric Myers, Director of EPD at the time, signed the 2007 NOI. When he did so on August 26, 2007, he believed that the issues regarding safety and navigation that had been raised by G&G and C-Term had been resolved "based on the advice of staff." Tr. 529. Historical Configuration of Docks in the Basin PBPH contends that the finger pier and dock configuration authorized by the 2007 NOI is consistent with historical lengths and configurations of piers and docks in the Basin. The evidence establishes that the length, number, configuration and locations of docks within the Basin varied greatly over time. As Mr. Straub testified in response to a question about the dock configuration when the property was acquired by PBPH, "Whatever we wanted them to be. It could change from day-to-day and month-to- month." Tr. 582. Aerials taken by Broward County dating back to 1998 demonstrate that the docks in the Basin ranged in number, length and location until 2006 when docks were installed following issuance of the General License. Until 1998, there were many different configurations. Since 2006, the number, lengths, and sizes of the docks have remained fairly consistent to the time of hearing. In the January 2007 Broward County aerial photograph, the five docks (from north to south) have lengths of 151.5, 136, 156, 156 and 88 feet, respectively. These lengths are roughly similar to the piling configuration authorized by the General License.15/ Safety and Navigation16/ The multiplicity of factors that affect navigation in the Dania Cut-off Canal "makes maneuvering extremely tricky" in the canal. Tr. 1574. These same factors affect Basin ingress and egress of G&G vessels and other vessels that have access to the Basin. Wind near the Basin comes from any direction. The predominant wind in the area of the Basin is out of the east/southeast at average speeds of 10-12 knots. From time-to-time, of course, the wind shifts. When cold fronts come through the area, for example, they generally come from the west/northwest and the wind blows mainly from the north. Strongest winds associated with a cold front are usually "anywhere from 20 to 30 knots. Constant winds with a good cold front, usually 15 to 20 knots." Tr. 1260. Direction and strength of wind affects stability and handling capacity of vessels entering and exiting the Basin. The bow of the vessel is affected the most. In the front, it is the narrowest part of the vessel, the least heavy, and has the least draft (depth in the water). Vessels entering and exiting the Basin are affected by leeway defined by Mr. Danti at hearing: "[L]eeway is the physical amount of sideways motion that is going to be activated on a vessel by the wind. It is the amount of side motion created by the wind on a vessel." Tr. 1268-9. Leeway varies depending on a number of factors, among them, the strength and direction of the wind, the angle of the vessel, and its draft. Ocean-freight shipping vessels have different handling characteristics from yachts. The effect of leeway on vessels in the Basin varies from vessel to vessel. Typically, the effect of leeway is greater on G&G vessels than on the PBPH vessels. The current in the Dania Cut-off Canal is 2.0 to 2.5 knots. The current in the canal in the immediate vicinity of the Basin has significant effects on the maneuverability of vessels. Because of the current in the canal, it is advisable for vessels entering and exiting the Basin to perform the majority of turns and other maneuvers in the Basin rather than in the canal. Another factor that makes turning maneuvers by G&G vessels safer in the Basin is boat traffic in the Dania Cut-off Canal. That traffic has increased greatly in recent years, as Mr. Steele testified. Vessels exiting the Basin, furthermore, must yield to vessels in the canal. Boat traffic is not visible to the typical G&G vessel until the vessel has committed to exiting the canal. Once committed, the G&G vessel cannot stop and wait for traffic to pass. It must complete the exit maneuver. It is much better, therefore, for the G&G vessel to turn in the Basin before committing to an exit so that it can emerge bow-first with a better view of canal traffic rather than emerge by backing out. Another factor that makes turning in the Basin safer is the Harbortown Marina, located directly across the canal from the Basin. There is a greater chance for collision the farther the G&G vessels must go into the Dania Cut-off Canal before beginning maneuvers necessary to head out to sea. Vessels will have to go closer to the southern side of the canal, that is, farther into the canal, when emerging from the Basin if they back out and turn in the canal rather than turn in the Basin before heading out toward the Atlantic Ocean. The Basin has a width of 320 feet at the north end and a width of 323 feet at the south end. Mr. Danti fashioned an "Unobstructed Line," depicted on Petitioners Ex. 114A and superimposed on Exhibits 114B through 114"O", fourteen aerial photographs of the Basin taken between 1998 and 2008.17/ The line commences at the north end of the Basin 162' from the Basin's western seawall and runs to the south with two "jogs" to the west before it ends at a projected bulkhead line in the mouth of the Basin just north of the Dania Cut- off Canal. The two jogs run perpendicular to the western seawall; the first, to the tip of the fourth finger pier allowed by the 2007 NOI and the second to a point 59.90 feet east of the western seawall in the approximate middle of the fifth and southernmost finger pier allowed by the 2007 NOI. The part of the Basin to the east of the Unobstructed Line is a navigational safe area (the "Safety Zone") created by Mr. Danti in which it is safe, in his opinion, for G&G vessels to turn and take maneuvers necessary to safely enter and exit the Basin. The Unobstructed Line and the Safety Zone were determined by Mr. Danti in a calculation that took into consideration factors including wind, current and tide, as well as the length, width, draft, maneuverability and handling characteristics of the bulk of G&G vessels and the fact that G&G vessels entering and exiting the Basin need the use of a minimum amount of space in the southern part of the Basin to initiate and complete safe entry and exit navigation maneuvers. Ultimately, the Safety Zone provides a minimum distance for a vessel 190 feet in length determined as half the beam of a vessel18/ from the bow, stern or either side of a vessel to any other vessel, dock, piling or seawall. It does not take into account factors that may require a greater distance such as wind, current and traffic under conditions that are less desirable than the best conditions experienced in the area of the Basin ("Best Conditions"). In order for vessels of the size and character that enter and exit the Basin to do so safely under Best Conditions, no finger piers, docks or moored vessels should protrude from the PBPH side of the Unobstructed Line into the Safety Zone. Under ideal wind, current, and weather conditions, the lengths of the first four finger piers from north to south as authorized by the Proposed Permit will not result in adverse effects to safety and navigation of vessels in and around the Basin. The fifth finger pier, however, is another matter. Authorized to be 152.60 feet in length as depicted in the Proposed Permit, it will protrude by more than 77 feet into the Safety Zone developed by Mr. Danti. Put another way, the fifth finger pier will adversely affect safety and navigation unless it is 75 feet or less in length given its southeasterly angle depicted in the Proposed Permit.19/ The authorized length of the fifth finger pier is not the only navigation and safety issue about which Mr. Danti testified. The length of vessels moored at the finger piers in the Proposed Permit, if too long, can present safety and navigation issues, as well, for G&G's vessels coming in and out of the Basin. With respect to the three northernmost finger piers, moored vessels should not extend past the Unobstructed Line, that is, they should not extend more than 162 feet measured perpendicularly from the Basin's western seawall. With respect to the fourth finger pier, vessels moored there should not extend past the 150.50 feet allowed for the length of the pier as depicted in the Proposed Permit. Similarly, no vessels moored at the fifth finger pier should extend past the end of a longest possible safe fifth finger pier, that is, one that is no more than 75 feet in length at the angle depicted in the 2007 NOI. The adverse affects on safety and navigation caused by the fifth finger pier at the length and as configured in the Proposed Permit would not be alleviated by G&G's use of tugboats to assist vessels entering and exiting the Basin. Tugboats are connected to the vessels they tug by tow lines at the bow and stern of the vessels. Such an arrangement adds approximately 85 feet to a typical G&G vessel of 190 feet, thereby requiring more room in the Basin for maneuvering than the vessel would need under its own power. The use of tugboats would require an even more expansive Safety Zone than was developed by Mr. Danti.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Broward County: modify the Proposed Permit attached to the 2007 Notice of Intent to shorten the length of the fifth finger pier to 75 feet and then issue the permit with the modification; or absent such a modification, deny the issuance of the Proposed Permit as applied for by PBPH. DONE and ENTERED this 14th day of October, 2010, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2010.
The Issue Whether Respondent engaged in the activities of a yacht broker without a license in violation of Chapter 326, Florida Statutes.
Findings Of Fact The Department is charged with licensing and regulating yacht and ship brokers and salespersons pursuant to Chapter 326, Florida Statutes. In May 1993, the Department issued a yacht and ship salesman's license to Davis. In 1995, after a formal hearing, the Department revoked Davis' license for misrepresentation in entering false answers on his license application. Davis had been a licensed stock broker with the Securities and Exchange Commission between 1971 and 1991. He failed to tell the Department on his application that the National Association of Securities Dealers had censured him, imposed a fine of $20,000, and suspended his license for two years. Davis attended a Department workshop on yacht and ship brokerage laws during the time he held a license. The workshop covered Chapter 326, Florida Statutes, brokerage activities, and administrative rules. In June 1997, Davis approached Don Gilman of Gilman Yachts with an offer to co-broker the purchase of the Princessa del Mar by his client, William Bond Elliott (Elliott). Davis suggested that Gilman split the commission on the purchase with him on a 50/50 basis. Gilman is a licensed yacht and ship broker. Gilman, who knew Davis personally and knew that Davis had been licensed by the Department, agreed to co-broker the transaction. Gilman was unaware that Davis' license had been revoked. Davis had an office in Palm Beach, Florida, with a local telephone and facsimile machine number. Diana Harvey, an employee of Gilman Yachts who handled the closing and paperwork associated with the sale of the Princessa del Mar, thought that Davis had represented himself to her as a licensed broker. The Princessa del Mar is a 105-foot Broward yacht built in 1984. Throughout the negotiations for Elliott's purchase, the Princessa del Mar was moored at docks in West Palm Beach, Florida. The listing broker for the Princessa del Mar was Richard Betram Yachts, Inc. Gary Fisette (Fisette) was the licensed broker handling the listing. Davis requested that Fisette send him the listing specifications on the Princessa del Mar. Fisette sent the specifications to Davis by facsimile transmission and by mail to Davis' Palm Beach office. Davis and Gilman met with Elliott onboard the Princessa del Mar in June 1997 for Elliott to view the yacht. The two discussed the yacht, including the purchase of the yacht, with Elliott. Davis also discussed placing the yacht into charter service to cover some of the costs of the purchase, operation and maintenance of the yacht. Davis met with both the buyer and seller alone and with Gilman and Fisette. On July 3, 1997, Elliott signed an initial purchase contract, offering $1.5 million for the Princessa del Mar on the condition of a sea trial and survey satisfactory to him. Davis signed the contract on the witness line. On July 16, 1997, Fisette sent a letter by facsimile transmission to Davis at his Palm Beach office with information on the engine rebuild on the Princessa del Mar that Davis had discussed with him. Fisette also wrote that the owner would sign and return the agreement by facsimile transmission. Davis arranged for William Seger to conduct the survey. Davis also arranged for the sea trial, which was conducted along the Intracoastal Waterway in Florida. Davis, Gilman, and Elliott attended the sea trial. Captain John Lloyd piloted the yacht. Davis arranged for some engine repair to the yacht. On August 5, 1997, Diana Harvey sent the executed purchase agreement and addendum to Davis at his Palm Beach office. On the same day, Gilman advised Elliott by facsimile transmission with a copy to Davis at his Palm Beach office that the yacht should be hauled for an inspection of the bottom. Gilman and Elliott met to negotiate the final offer. The closing was scheduled in the Bahamas. On September 3, 1997, Gilman confirmed his conversation with Davis about their agreement to reduce their commission by $4,000 toward the seller's request of an additional $12,000 to close the transaction. At the conclusion of the transaction, Gilman received a commission check from the attorney handling the closing. Davis directed Gilman and Harvey to pay his share of the commission, $19,500, in five separate checks: $5,000 to himself as his commission, $1,000 to Foley Law Office for legal fees for the yacht, $1,000 to A. Stokes and $9,500 to Peter Gollsby for reimbursement for expenses for the yacht, and $3,000 to Bill Seger for the survey. A check for $2,850 was also given to Davis for repairs to the yacht. Davis picked up the checks in person from Ms. Harvey at Gilman Yachts. Davis claims that any brokering activities that he may have done were not done in the State of Florida. He claimed that calls to his Palm Beach office were forwarded to Rhode Island, and that only conversations between him and Elliott concerning chartering services and assisting with Elliott's due diligence activities took place in Florida. Davis' claims are rejected as not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered requiring Thomas I. Davis to cease and desist from engaging in yacht and ship brokerage activities in Florida and imposing a civil penalty of $5,000. DONE AND ENTERED this 19th day of October, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2000. COPIES FURNISHED: Janis Sue Richardson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Ashley R. Pollow, Esquire Atrium Financial Center 1515 North Federal Highway, Suite 300 Boca Raton, Florida 33432-1994 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Ross Fleetwood, Director Division of Florida Land Sales, Condominiums, and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue Whether Petitioner owes sales and use tax (plus penalties and interest) to the Department of Revenue (Department), as alleged in the Department's November 1, 1999, Notice of Decision.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the Stipulations of Fact set forth in the parties' Joint Pre-Hearing Stipulation: 1/ Mr. Wiviott is a very successful, "hands-on" entrepreneur who presently owns approximately five or six businesses. Since 1958, when he and his brother opened a carpet store in Milwaukee, Mr. Wiviott has owned approximately 30 different businesses (including nine restaurants and a yacht service business), many of which he has sold "for literally millions of dollars of profit." Approximately two-thirds of the businesses that he has owned he has "started from scratch." There have been instances where Mr. Wiviott has invested in businesses that were in industries in which, at the time of his investment, he had no prior experience. In these instances, he overcame his lack of experience by being "extremely industrious" and doing "research." When Mr. Wiviott has needed to consider a "feminine viewpoint" in making a business decision, he has used Mrs. Wiviott, his wife of 43 years, as a "sounding board." For the past 35 years, William Becker has been Mr. Wiviott's accountant. In 1991 or 1992, Mr. Wiviott purchased two "brand new" boats as business investments. The boats were sold to Mr. Wiviott together as a package. Mr. Wiviott paid a total of $1.1 million for the two boats. The larger of the boats was a 63-foot sport fisherman. Although unfinished, it was seaworthy. Mr. Wiviott named this boat the "Choice One." Mr. Wiviott named the other boat, a 56-foot sport fisherman, the "Choice Too." Mr. Wiviott accepted delivery of the Choice One and Choice Too in the Bahamas. He did not pay any sales tax on his purchase of the boats. After accepting delivery, Mr. Wiviott brought the boats to Fort Lauderdale. In 1993, Mr. Wiviott explored the possibility of entering (for the first time) the yacht charter business. He spoke to various people involved in the industry, including two charter brokers (Bob Offer and Bob Saxon) and a charter yacht owner (Bernie Little). He also had discussions with Mr. Becker. Together, he and Mr. Becker made cost and revenue projections. He ultimately made a "value judgment" to go into the business. Mr. Wiviott retained the services of Mr. Offer to help him find a suitable yacht for the business. One of the yachts that Mr. Offer showed Mr. Wiviott was the Fifty-One, a Washington State-built, Fort Lauderdale- based "mega" yacht owned by an Italian national, Dr. Moretti. The Fifty-One's interior design made it particularly well suited for chartering. It had four levels, including a sky deck/lounge equipped with a complete kitchen (to complement the galley located on the bottom level). There were five staterooms that could comfortably accommodate ten charter guests. Each of the regular staterooms had its own head. The master stateroom had "his and her" heads. There was also a stateroom for the captain, as well as quarters for six other crew members (the number needed to properly service a charter party). The Fifty-One had not been well maintained during the time it had been owned by Dr. Moretti. Although Dr. Moretti had made the Fifty-One available for charter, the yacht had a poor reputation among charter brokers and, as a result, it just "sat at the dock," unchartered, while under Dr. Moretti's ownership. In October of 1993, Mr. Wiviott offered to purchase the Fifty-One from Dr. Moretti for $5.1 million, subject to a satisfactory marine survey and sea trial. Dr. Moretti initially rejected the offer, but subsequently agreed to sell the Fifty- One at Mr. Wiviott's offering price (which was considerably less than the $9 million that Dr. Moretti had paid for the Fifty-One a year and a half earlier). Before the deal was consummated, Mr. Wiviott contracted with a marine survey company, Patton Marine, Inc. (Patton), to perform a thorough inspection of the Fifty-One. Patton performed an extensive pre-purchase survey of the Fifty-One, which included various sea trials and other tests (conducted in Fort Lauderdale and off the Fort Lauderdale coast). The survey revealed that the Fifty-One had various "deficiencies." Most of these "deficiencies" were "small items" and were remedied before the sale was finalized. The most serious of the remaining "deficiencies" was the excessive amount of interior vibration. Notwithstanding the known "deficiencies" that remained, Mr. Wiviott thought that, at $5.1 million, the Fifty- One was a good buy. At worst, he believed, he "could make a pretty good profit" by reselling the Fifty-One. Mr. Wiviott retained Robb Maass, whom Mr. Wiviott was told was the "top marine attorney in the [Fort Lauderdale] area," to assist him in forming a Florida corporation which would purchase the Fifty-One and operate a yacht charter business. With Mr. Maass' assistance, B. W. Marine, Inc. (Petitioner) was organized under the laws of the State of Florida, effective January 20, 1994, with Mr. Wiviott as its sole officer, director, and shareholder. Petitioner's principal corporate address was, at the time of incorporation, and has remained, 757 Southeast 17th Street, #389, Fort Lauderdale, Florida 33316. On January 28, 1994, shortly after Petitioner's incorporation, Petitioner closed on the purchase of the Fifty- One. No Florida or other state sales tax was paid on the purchase. The newly purchased yacht (which had been registered in the Cayman Islands by the previous owner, Dr. Moretti) was immediately registered with the United States Coast Guard, and it thereafter began to fly an American flag. Based upon on Mr. Maass’ advice, Petitioner also took steps to obtain a "certificate of documentation with appropriate endorsement for employment in the coastwise trade" for the Fifty-One. It was not until the following year, however, that the United States Congress (passing a bill introduced by Florida Congressman E. Clay Shaw, Jr.) authorized the Secretary of Transportation to issue such a "certificate of documentation." 2/ After taking delivery of the yacht in the Bahamas, Petitioner imported the Fifty-One into Florida. It did so because Mr. Wiviott wanted the Fifty-One to be marketed in the south Florida area and to have access to the exceptional yacht repair and maintenance facilities that were available there. The South Florida area is where the "mega" yacht charter brokers (who, in most instances, effectively "make[] the decision [as to] which boat a charter client is going to use") are concentrated and where the reputation (or, as Mr. Wiviott put it in his hearing testimony, the "aura" or illusion") of a "mega" yacht is established (in part, by the owner, captain, and crew "pander[ing]" to the broker community during showings of the yacht). It is therefore important for a "mega" yacht available for charter to have a presence in the south Florida area so that it can seen by, and shown to, the "mega" charter brokers who are concentrated there. Although most "mega" yachts are marketed in Florida, "the chartering experience [generally occurs] elsewhere," in such places as New England (in the summer) and the Caribbean and Mediterranean (in the winter). Aware of this, Mr. Wiviott, at the time that the Fifty-One was imported into Florida, had no expectation that that the Fifty-One would be used exclusively for charters in Florida waters. Mr. Wiviott wanted the Fifty-One to be imported into Florida without Petitioner having to pay any use tax. Mr. Maass advised Mr. Wiviott that Petitioner would not have to pay Florida use tax if it registered with the Department as a "dealer" and used the Fifty-One "only . . . for bare boat charter[s]." Mr. Maass cautioned Mr. Wiviott that "[t]here could be no personal recreational use, no personal use aboard the boat whatsoever." Before importing the Fifty-One into Florida, Petitioner registered with the Department as a "dealer" that would be engaging in "bare boat" charter operations in Florida. Mark Newcomer was the first captain of the Fifty-One under Petitioner's ownership. Mr. Wiviott considered Captain Newcomer to be, not a "charter captain," but a "yard captain," that is, a captain "who specializes in repairs, maintenance and upgrades of yachts." Captain Newcomer was hired by Petitioner "to take delivery [of the Fifty-One] and to oversee the renovation and retrofit[ting] of the yacht." He was responsible for ensuring that the Fifty-One was brought up to American Bureau of Shipping (ABS) standards. Obtaining certification that the Fifty-One met ABS standards was an "essential part" of any campaign to effectively "market[] the boat" for charter. Mr. Wiviott did not have any intention of continuing Captain Newcomer's employment with Petitioner following completion of "the renovation and retrofit[ting] of the yacht." Captain Newcomer brought the Fifty-One into Florida on or about February 1 or 2, 1994, and docked it at a Fort Lauderdale marina (either Pier 66 Marina or the Bahia Mar Marina). On February 3, 1994, Captain Newcomer moved the Fifty- One to the Bradford Marine Shipyard (Bradford Marine), a Department-registered Fort Lauderdale repair facility able to service boats up to 150 feet in length. The Fifty-One underwent repairs and improvements at Bradford Marine until February 12, 1994, by which time the work that had to be done with it out of the water had been completed. At Bradford Marine, Petitioner had to pay a 20 to 30 percent "surcharge on all outside vendors that c[a]me in." On February 13, 1994, Captain Newcomer moved the Fifty-One to the Bahia Mar Marina (Bahia Mar), a more cost- effective location, to do (with the help of others) the remaining repair and improvement work on the yacht (which could be done with the yacht in the water). Because Captain Newcomer was "very good friends" with the dockmaster at the Bahia Mar, he and those he supervised were allowed to perform work on the Fifty-One (involving the use of noise-generating power tools) that would have otherwise been prohibited. The Fifty-One remained at the Bahia Mar until March 14, 1994, undergoing repairs and improvements. On March 15, 1994, Captain Newcomer, accompanied by Mr. and Mrs. Wiviott (and with less than a full crew), took the Fifty-One on a cruise to the Jockey Club, a "private club" that was part of a "condominium complex resort" located in Miami. He did so pursuant to the instructions of Mr. Wiviott, with whom he spoke to on a daily basis regarding the repair and improvement work that was being done on the Fifty-One under his (Captain Newcomer's) supervision. Mr. Wiviott wanted "to take the boat out to stretch it out [and to] see the progress that Captain Newcomer was making." Furthermore, Mr. Wiviott thought that it was important for Petitioner's charter business for the Fifty- One "to be seen." Near the Jockey Club, the Fifty-One ran aground "in the mud," where it "sat . . . for about eight hours until the tide came back in." After the Fifty-One arrived at the Jockey Club, divers "g[o]t under the boat and clean[ed] the prop[eller]s [and] clean[ed] the drivetrain." The Fifty-One remained docked at the Jockey Club for three days. On March 17, 1994, the Fifty-One returned to the Bahia Mar to undergo further repairs and improvements. By mid-April of 1994, the work necessary to bring the Fifty-One up to ABS standards had been completed. Petitioner therefore applied for, and on April 19, 1994, was issued, an ABS "Class Certificate." The Fort Lauderdale Charter Broker's Boat Show (1994 Boat Show) was held at Pier 66 Marina (Pier 66) from April 14, 1994 to April 20, 1994. The Fifty-One was one of the boats entered in the 1994 Boat Show, and it remained at Pier 66 for the entire show. Mr. Wiviott was aboard throughout the event to show the boat to charter brokers and others. Captain Newcomer helped Mr. Wiviott show the boat. Food and drinks were served. Fresh flowers adorned the boat. The crew wore their dress uniforms. After the end of each day's session, Mr. Wiviott stayed aboard the Fifty-One overnight in lieu of spending company money to rent a hotel room. Following the 1994 Boat Show, from April 20, 1994 until April 28, 1994, the Fifty-one was taken on a "shakedown" cruise to Key West and back to Fort Lauderdale, during which it was run at various speeds and systems were "overloaded" to determine whether they worked properly. At the time of the cruise, the Fifty-One was not equipped with all of the staff and other accoutrements necessary to provide the "five star service" that those who charter "mega" yachts pay to receive. During the cruise, the boat docked at the Ocean Reef Club, an exclusive private resort community in Key Largo; the Galleon Marina, a public facility in Key West; Fisher Island; and the Jockey Club. There were a "few breakdowns" during the cruise, including a "crane breakdown" at the Ocean Reef Club. With the help of vendors, the necessary repairs were made. Aboard during the cruise, in addition to Captain Newcomer and a partial crew, was Mr. and Mrs. Wiviott; Mr. Wiviott's brother, Howard Wiviott; Howard's wife; Mr. Becker, whose firm provided Petitioner with accounting services (primarily through the efforts of Stacey Torchon, one of its accountants); and Mr. Becker's wife. There was no marine surveyor, no representative of a registered repair facility, and no "mega" yacht charter broker aboard during the cruise. 3/ Mr. Becker and his wife did not remain aboard for the entire cruise. They disembarked in Key Largo on April 23, 1994. During the time that he was aboard, Mr. Becker spoke to Captain Newcomer and the crew about the financial and accounting procedures that needed to be followed in conducting Petitioner's charter operations, information that Mr. Becker could have provided by telephone from his California office. (Stacey Torchon, who was "more involved [than Mr. Becker] in the day-to-day operations" of Petitioner, never met personally with any Fifty-One crew member; rather, she communicated with the crew by telephone.) While they were aboard, Mr. Becker and the other guests Mr. Wiviott had invited to take part in the cruise (referred to, collectively, hereinafter as the "Invited Guests") ate, relaxed, and enjoyed the hospitality and ambiance. The Invited Guests' presence on the Fifty-One during the "shakedown" cruise was not solely for the purpose of furthering Petitioner's charter business. Mr. Wiviott was motivated by personal reasons in inviting them aboard. The assertion (made by Petitioner in its Proposed Recommended Order) that one of the purposes of the "shakedown" cruise was to determine, through the feedback given by the Invited Guests, "whether the Petitioner was delivering the chartering experience in terms of comfort, ambiance and service that people willing to spen[d] $50,000 per week would expect" simply does not ring true. Mr. Wiviott knew full well that the Fifty-One, with a "yard captain" at the helm and less than a full crew, was not equipped to provide such service. He did not need to take the "Fifty-One" on a lengthy cruise with family and friends to find this out. Had Mr. Wiviott really wanted to learn if the Fifty-One offered a "chartering experience" for which someone would be willing to pay $50,000.00, he would have asked "mega" yacht charter brokers, not family and friends, to come aboard the Fifty-One for a cruise and give him their feedback. On April 28, 1994, following the "shakedown" cruise, the Fifty-One returned to the Bahia Mar, where, in the ensuing days, defects discovered during the "shakedown" cruise were remedied. By May 7, 1994, the Fifty-One was ready for charter. The Fifty-One, at that time, was not the only vessel in Petitioner's fleet. Shortly after acquiring the Fifty-One, Petitioner had purchased (in Florida) the Choice One and Choice Too 4/ from Mr. Wiviott. Petitioner paid Mr. Wiviott $1,138,804.28 for the Choice One. Inasmuch as the purchase was made under Petitioner's sales tax exemption certificate (that Petitioner had obtained from the Department based upon its representation that it intended to use the Fifty-One exclusively for "bare boat" charter operations in Florida), no Florida sales tax was paid. At the time of the purchase, Mr. Wiviott envisioned that Petitioner would use the Choice One as a "chase boat" for the Fifty-One (from which charterers and guests could fish). The Choice One, however, was never used by Petitioner for this purpose because it turned out that it was not feasible to do so. The Choice One wound up sitting at the dock in Fort Lauderdale, leaving only "to be stretched" or moved to another docking facility by its captain (initially Steven Ernst and then later Carl Roberts). Before its sale by Petitioner in 1995, the Choice One was chartered on only one occasion, during which time it remained at the dock in Fort Lauderdale (positioned so that those aboard could view a passing "boat parade"). The Fifty-One was chartered on a more frequent basis. Of the 15 charters of the Fifty-One during the Audit Period, however, only two (the Gerardo Cabrera and Jean Foss charters) were in Florida waters. The Gerardo Cabrera charter was the first charter of the Fifty-One following the completion of the "renovation and retrofit[ting] of the yacht." It started in Fort Lauderdale on May 18, 1994, and ended in Fort Lauderdale on May 21, 1994. The captain of the Fifty-One for the Gerardo Cabrera charter was Jon Cheney, who had replaced Captain Newcomer on May 7, 1994. The charter agreement between Petitioner (as the "Owner") and Mr. Cabrera (as the "Charterer") was dated May 13, 1994, and read, in pertinent part, as follows: In consideration of the covenants hereinafter contained, the Owner agrees to let and the Charter[er] agrees to hire the Yacht from noon on the 18th of May 1994 to noon on the 21st of May 1994 for the total sum of $18,000.00 + expenses + 6% FSST ($1,080 Dollars) of which amount $18,000 + $1,080 + $5,000 (ADVANCE toward expenses) for a total of $24,080 shall be paid on the signing of this Agreement . . . . The Owner agrees to deliver the Yacht at Bahia Mar Yachting Centre, Ft. Laud. on the 18th day of May 1994 in full commission and working order, outfitted as a yacht of her size, type and accommodations, with full equipment, inclusive of that required by law, and fully furnished, including galley and dining utensils and blankets; staunch, clean and in good condition throughout and ready for service; and agrees to allow demurrage pro rata to the Charterer for any delay in delivery. . . . The owner's insurance policy does not cover Charterer's protection and indemnity during the term of the Charter. . . . * * * The Charterer agrees to accept the yacht delivered as hereinbefore provided and to pay all running expenses during the term of the charter. The Charterer, his agents and employees have no right or power to permit or suffer the creation of any maritime liens against the yacht, except the crew's wages and salvage. The Charterer agrees to indemnify the Owner for any charges or losses in connection therewith, including reasonable attorney's fees. * * * The Charter[er] agrees to redeliver the yacht . . . to the Owner at Bahia Mar Yachting Centre, Ft. Lauderdale, FL . . . . The Charter[er] agrees that the yacht shall be employed exclusively as a pleasure vessel for the sole and proper use of himself, his family, guests and servants during the term of this charter and shall not transport merchandise or carry passengers for pay, or engage in any trade nor in any way violate the Revenue Laws of the United States, or any other Government within the jurisdiction of which the yacht may be at any time, and shall comply with law in all other respects. * * * 11. It is mutually agreed that full authority regarding the operation and management of the yacht is hereby transferred to the Charter[er] for the term thereof. In the event, however, that the Charterer wishes to utilize the services of a Captain and/or crew members in connection with the operation and management of the yacht, whether said Captain and/or crew members are furnished by the Owner or by the Charterer, it is agreed that said Captain and/or Crew members are agents and employees of the Charterer and not of the Owner. In the further event that local United States Coast Guard or other regulations require the Owner exclusively to provide a Captain and/or crew, or the Owner wishes to provide his own Captain and/or crew, the Owner agrees to provide a Captain who is competent not only in coastwise piloting but in deep sea navigation, and to provide a proper crew. The Captain shall in no way be the agent of the Owner, except that he shall handle clearance and the normal running of the yacht subject to the limitations of this charter party. The Captain shall receive orders from the Charterer as to ports to be called at and the general course of the voyage, but the Captain shall be responsible for the safe navigation of the yacht, and the Charterer shall abide by his judgment as to sailing, weather, anchorages, and pertinent matters. The Charterer assumes total control and liability as if the Charterer were the owner of the yacht during the term of the charter. . . . This agreement, by "industry standard," is "considered a 'bare boat' charter agreement." On May 13, 1994, Mr. Cabrera (as "Employer") also entered into a separate "Yacht Employment Agreement" with Captain Cheney (as "Yacht Captain"). It provided as follows: WHEREAS, Charterer has under charter the yacht FIFTY ONE pursuant to his bare boat charter party agreement wherein it is Employer's obligation to furnish the said yacht with a competent master and crew; and WHEREAS, Yacht Captain is a competent master, having over two years' experience in the coastal and inland waters of FLORIDA and THE BAHAMAS and is able to furnish a crew for the management and navigation of the said yacht; and WHEREAS, the parties desire to reduce their agreement to written term; NOW THEREFORE in consideration of the premises and of the agreements hereinafter contained, it is agreed as follows: Employer hereby hires yacht Captain as the Master of the said yacht to act as such Master as long as the yacht is under charter to Employer. Yacht Captain agrees to furnish 6 crew men to assist in operating and navigating the said yacht. The Captain and crew, if any, shall be properly uniformed. The crew to comprise the following: [left blank] Yacht Captain shall be paid for his services and the services of his crew a total sum of TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION and Employer shall furnish the Yacht Captain and his crew, quarters and food, during the term of this Agreement. The term of this Agreement shall commence on the 18th day of MAY 1994, or at such time that the yacht shall be ready to sail pursuant to the bare boat charter party agreement with the Owner and shall terminate on the 21st day of MAY, 1994, unless sooner terminated by the termination of the yacht party agreement for any reason whatsoever. In the event that the yacht charter party agreement is sooner terminated, the Master and crew will receive a pro-rated share of the agreed compensation for their services. After collecting from Mr. Cabrera all the monies Mr. Cabrera owed under both the charter agreement and the "Yacht Employment Agreement," Rikki Davis (the broker representing Mr. Cabrera) handed these monies over to Mr. Offer (the broker representing Petitioner). (It is commonplace in the "mega" yacht chartering industry "to have the amount paid for the use of the vessel under [a] bare boat charter agreement and amount for the captain and crew paid together by the charterer as a lump sum."). Mr. Offer, in turn, forwarded the monies he was given by Ms. Davis to Petitioner. The Gerardo Cabrera charter was the only charter that took place before the captain and crew of the Fifty-One became employees of Papa's Yacht Services, Inc. (Papa's), Petitioner's sister corporation, which, like Petitioner, was incorporated in Florida and has maintained a Florida corporate address from its inception. Papa's was formed solely for the purpose of enabling Petitioner to be in "compliance [with] the bare boat charter concept." Papa's dealings with Petitioner was Papa's sole source of revenue. Petitioner paid Papa's a "management fee" for providing a captain and crew for the Fifty-One. Although the Fifty-One's captain and crew had become Papa's employees, Petitioner continued to pay for their health insurance and provide them with free room and board on the Fifty-One at all times during the Audit Period, except when the Fifty-One was under charter and the charterers provided the captain and crew with room and board. Having a full-time captain and crew aboard a "mega" yacht available for charter, even when the yacht is not under charter, is essential to conduct successful charter operations. The captain and crew must be available, on the vessel, to host the "mega" yacht charter brokers who come aboard between charters (sometimes with little or no advance notice) and to perform those everyday tasks necessary to maintain the vessel. To attract and keep qualified onboard personnel, it is necessary to provide them with, as part of their compensation package, free room and board on the "mega" yacht. Doing so is the "standard in the industry." The Fifty-One was chartered by Jean Foss from December 27, 1995 to January 3, 1996, approximately a year and a half after Papa's had become the employer of the Fifty-One's captain and crew. Ms. Foss cruised to the Bahamas during the charter. The charter originated and concluded in Fort Lauderdale. "[T]he only reason [the Fifty-One] was in Florida [for the charter was] because [Ms. Foss] wouldn't fly to the Bahamas." The charter agreement between Petitioner (as the "Owner") and Mr. Foss (as the "Charterer") was similar to the charter agreement into which Mr. Cabrera and Petitioner had entered. It was dated August 15, 1995, and read, in pertinent part, as follows: TERM, HIRE & PAYMENTS: In consideration of the covenants hereinafter contained, the OWNER agrees to let and the CHARTERER agrees to hire the Yacht for the term from 12 noon . . . on the 27th day of December, 1995 to 12 noon . . . on the 3rd day January, 1996 for the total sum of $44,800 + All Expenses of which amount $22,400.00 shall be paid on the signing of this AGREEMENT and the balance thereof as follows: remaining 50% deposit (US$22,400.00) and Florida State Sales Tax of 6% US$2,668 for a total sum of $25,088.00 due by 24 November, 1995. DELIVERY. The OWNER agrees to deliver the yacht to CHARTERER at Fort Lauderdale, Florida at 12 noon . . . on the 27th day of December, 1995, in full commission and in proper working order, outfitted as a yacht of her size, type, and accommodations, with safety equipment required by law, and fully furnished, including gallery and dining utensils and blankets; staunch, clean and in good condition throughout and ready for service, and agrees to allow demurrage pro rata to the CHARTERER for any delay in delivery. . . . * * * 5. RUNNING EXPENSES. The Charterer agrees to accept the yacht as delivered as hereinbefore provided and to pay all shipboard expenses during the term of the charter period. * * * 8. RE-DELIVERY and INDEMNIFICATION. The CHARTERER agrees to redeliver the yacht, her equipment, and furnishings, free and clear and of any indebtedness for CHARTERER's account at the expiration of this charter, to the OWNER at Fort Lauderdale, Florida at 12:00 noon on the 3rd day of January, 1996 in as good condition as when delivery was taken, ordinary wear and tear and any loss or damage for which the OWNER is covered by his own insurance, and CHARTERER's insurance (if any) set forth in Paragraph 3 of this AGREEMENT, excepted. . . . * * * 10. RESTRICTED USE. The CHARTERER agrees that the yacht shall be employed exclusively as a pleasure vessel for the sole and proper use of himself, his family, passengers and servants, during the term of this charter, and shall not transport merchandise, or carry passengers for hire, or engage in any trade, nor any way violate the Revenue Laws of the United States, or any other Government within the jurisdiction of which the yacht may be at any time, and shall comply with the laws in all other respects. * * * 12. CHARTERER'S AUTHORITY OVER CREW. It is mutually agreed that full authority regarding the operation and management of the yacht is hereby transferred to the CHARTERER for the term thereof. In the event, however, that the CHARTERER wished to utilize the services of a captain and/or crew members in connection with the operation and management of the yacht, whether said captain and/or crew members are furnished by the OWNER or by the CHARTERER, it is agreed that said captain and/or crew members are agents and employees of the CHARTERER and not of the OWNER. In the further event that local United States Coast Guard or other regulations require the OWNER exclusively to provide a captain and/or crew, or the OWNER agrees to provide a proper captain who is competent not only to coastwise piloting, but in deep sea navigation, and to provide crew, the captain shall in no way be the agent of the OWNER, except that he shall handle clearance and the normal running of the yacht subject to ports to be called at, and the general course of the voyage. The captain shall be responsible for the safe navigation of the yacht, and the CHARTERER shall abide by his judgment as to sailing, weather, anchorages, and pertinent matters. The captain and crew shall be selected by the CHARTERER with the approval of the OWNER or the OWNER's Agent. CHARTERER is aware that he has a choice of captains. CHARTERER has full right to terminate the captain and/or crew; however, replacements shall be hired as under Paragraph 12 of this AGREEMENT. . . . Ms. Foss also entered into a "Yacht Services Agreement." The agreement, dated August 16, 1995, was with Papa's, which agreed to provide a seven person crew for the Fifty-One for the charter period (December 27, 1995, through January 3, 1996). Ms. Foss, in turn, agreed to pay Papa's $11,200.00 for such crew services and, in addition, to provide the captain (Arthur "Butch" Vogelsang) and crew with food and quarters aboard the Fifty-One during the charter period. Petitioner collected and remitted to the Department the sales tax owed by Mr. Cabrera and Ms. Foss on their rentals of the Fifty-One. No Florida sales tax was due on any of the other 13 charters of the Fifty-One during the Audit Period because they all took place outside Florida. In the case of 11 of these 13 other charters, like in the Jean Foss charter, the charterer entered into a charter agreement with Petitioner for the rental of the Fifty-One, as well as a separate agreement with Papa's for employment of a captain and crew for a fee (that "represent[ed] the actual cost [to Papa's] of the crew"). Typically, the total amount due under both agreements was sent to Petitioner, and Mr. Becker's firm (which also provided accounting services to Papa's) "moved the [portion of the] funds" due Papa's to Papa's bank account. Two charterers during the Audit Period (Mutual of Omaha Marketing Company and Prince Faisal Aziz of Saudi Arabia) refused Mr. Wiviott's request that they enter into two separate agreements, one (with Petitioner) for the rental of the Fifty- One and another (with Papa's) for employment of a captain and crew. Instead, they insisted on signing a single document, a Mediterranean Yacht Brokers Agreement (or MYBA Agreement), wherein Petitioner agreed to provide both the Fifty-One and a captain and crew. Not wanting to lose the business, Mr. Wiviott, on behalf of Petitioner, entered into these MYBA Agreements, notwithstanding that he had been instructed by Mr. Maass "not [to] take MYBA contracts." The MYBA Agreement between Petitioner (as "Owner") and Mutual of Omaha Marketing Company (as "Charterer") was dated December 16, 1995, and provided that: the "charter period" would begin 12:00 noon on March 3, 1996, and end 12:00 noon on March 17, 1996; the "cruising area" would be the Caribbean; the "port of delivery" would be Guadeloupe; the "port of re- delivery" would be Grenada; the crew would consist of a captain and six other crew members; the charter fee would be $48,000.00 per week for a total (for 2 weeks) of $96,000.00; the "Advance Provisioning Allowance" would be $48,000.00; and the "delivery/re-delivery fee" would be $6,857.00. In addition, it contained the following "clauses," among others: CLAUSE 1 AGREEMENT TO LET AND HIRE The OWNER agrees to let the Yacht to the Charterer and not to enter into any other Agreement . . . for the Charter of the Yacht for the [s]ame period. The CHARTERER agrees to hire the Yacht and shall pay the Charter Fee, the Security Deposit, the Advance Provisioning Allowance and any other agreed charges in cleared funds, on or before the dates and to the Account specified in this Agreement. * * * CLAUSE 6 CREW The OWNER shall provide a suitably qualified Captain acceptable to the insurers of the Yacht and a suitably experienced Crew, properly uniformed, fed and insured. The OWNER shall ensure that no member of the Crew shall carry or use any illegal drugs on board the Yacht or keep any firearms on board (other than those declared on the manifest) and shall ensure that the Captain and Crew comply with the laws and regulations of any country into whose waters the yacht shall enter during the course of this Agreement. The MYBA Agreement between Petitioner (as "Owner") and Prince Aziz (as "Charterer") was dated March 19, 1996, and provided that: the "charter period" would begin 12:00 noon on April 2, 1996, and end 12:00 noon on April 9, 1996; the "cruising area" would be the Caribbean; St. Maarten would be the "port of delivery" and "the port of re-delivery"; the crew would consist of a captain and six other crew members; the charter fee would be $50,000.00; and the "Advance Provisioning Allowance" would be $10,000.00. It contained the following additional provisions, among others: 30. AGREEMENT TO LET The OWNER shall let the yacht for the charter period and agrees not to enter into any other agreement for the charter of the yacht for the same period, and agrees not to sell the yacht before completion of the charter period, unless otherwise agreed by the Charterer. * * * 32. CREW The Owner shall provide a properly qualified Captain approved by the insurers of the yacht and a properly qualified crew, uniformed and insured. . . . Upon the advice of Mr. Maass, Petitioner assigned to Papa's its MYBA Agreements with Mutual of Omaha Marketing Company and Prince Aziz. It also entered into "Bareboat Charter Agreements" with Papa's for the rental of the Fifty-One for the same periods covered by the MYBA Agreements (notwithstanding that the MYBA Agreements expressly prohibited Petitioner from doing so). According to what Mr. Maass told Mr. Wiviott, by Petitioner taking such action, "the MYBA contract[s] could be accepted without violating the requirement that [Petitioner] engage only in bare boat chartering." The written assignment of the MYBA Agreement with Mutual of Omaha Marketing Company was dated December 16, 1995, the same date as the MYBA Agreement, and read, in pertinent part, as follows: BW Marine owns the vessel "Fifty-One," a 125 foot motoryacht, bearing official number 1020419 (the "Vessel"); BW Marine entered into a Yacht Charter Party Agreement dated December 16, 199[5] (the "Charter") between BW Marine and Mutual of Omaha Marketing Company (Charterer"); BW Marine desires to assign to Papa's Yacht Services, and Papa's Yacht Services agrees to accept, all BW Marine's right, title, and interest in and to the Charter; NOW THEREFORE, in consideration of the premises, the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Assignment BW Marine assigns to Papa's Yacht Services all its right, title, and interest in and to the Charter. Papa's Yacht Services accepts the assignment and assumes all obligations of BW Marine under the Charter. Payment For administrative convenience, Charterer shall pay BW Marine the charter hire under the Charter. BW Marine, in turn, shall remit the surplus of these funds over the lease amount due from Papa's Yacht Services to BW Marine under that certain Bare Boat Charter Agreement between the parties of even date herewith. . . . Mutual of Omaha Marketing Company was not a signatory to this written assignment (and no other document offered into evidence reflects that Mutual of Omaha Marketing Company consented to the assignment). 5/ The written assignment of the MYBA Agreement with Prince Aziz was dated March 19, 1996, the same date as the MYBA Agreement. It was identical to the December 16, 1995, written assignment of the MYBA Agreement with Mutual of Omaha Marketing Company (with the exception of the dates contained therein). Prince Aziz was not a signatory to this written assignment (and no other document offered into evidence reflects that Prince Aziz consented to the assignment). The first "Bareboat Charter Agreement" between Petitioner (as "Owner") and Papa's (as "Charterer") was dated December 16, 1995, and provided, in pertinent part, as follows: Owner owns the vessel "Fifty-One," a 125 foot motorcoach bearing official number 1020419 (the "Vessel"); and Charterer desires to charter the Vessel from Owner and Owner is willing to make the Vessel available to Charterer for such purpose, subject to the terms and conditions contained herein. NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Term Owner agrees to let and Charterer to hire, the Vessel for a term commencing March 3, 1996, and ending March 17, 1996. Payment Charterer shall pay Owner charter hire of One Hundred Two Thousand Eight Hundred Fifty Seven Dollars ($102,857.00), plus state sales tax, if applicable. Control The Vessel is chartered on a bare boat or demise basis. Owner hereby transfers to Charterer full authority regarding the operation and management of the Vessel for the charter term. Charterer is solely responsible for retaining a master and crew. Guest Limitation When the Vessel is underway, the number of persons on board the Vessel, other than the master and crew, shall be limited to the Charterer (or the Charterer's representative, if Charterer is a corporation) and twelve (12) guests. * * * Delivery Owner agrees to deliver the Vessel at Guadeloupe. Redelivery Charterer shall redeliver the Vessel to Owner at Granada at the end of the charter term, in as good condition as when delivery was taken, ordinary wear and tear excepted. . . . * * * 9. Expenses Charterer shall pay all running expenses during the term of the charter. Charterer shall pay for routine maintenance and repair of the Vessel during the charter term. * * * 12. Non-Assignment Charterer agrees not to assign this Agreement or subcharter the Vessel without the consent of the Owner in writing, which Owner may withhold in Owner's sole discretion. . . . The second "Bareboat Charter Agreement" between Petitioner and Papa's was dated March 19, 1996, and was identical to the first "Bareboat Charter Agreement" between them (with the exception of the charter period, charter cost, and delivery/redelivery locations). The evidence is insufficient to support a finding that Papa's ever entered into a sub-charter agreement with either Mutual of Omaha Marketing Company or Prince Aziz. Both Mutual of Omaha Marketing Company and Prince Aziz paid Petitioner the entire charter fee prescribed under their respective MYBA Agreements. They did not make any payments to Papa's. Petitioner paid Papa’s a “management fee” for providing the captain and crew during these charters. On one of the 15 charters during the Audit Period, Mr. Wiviott was aboard the Fifty-One as a guest of the charterer, the Choice Meat Co., Inc., a company that he and his son, Greg Wiviott, owned. Choice Meat Co., Inc., paid the "going charter rate" for the rental, but no broker's commission because "there was no broker to pay." There were occasions during the Audit Period, when the Fifty-One was not under charter, that Mr. Wiviott, members of his family (including his wife; children; grandchildren; his bother, Howard; and Howard's wife), and his friends used the Fifty-One outside Florida for non-business-related, personal purposes, sometimes for "one or two weeks at a time." For instance, in June of 1994 (after the Gerardo Cabrera charter and before the next charter, which began on July 21, 1994), when the Fifty-One was in New England, the Wiviott family was aboard for approximately "a couple of weeks." At the end of that summer, just before the Fifty-One returned from New England to Fort Lauderdale, the family again used the Fifty-One, this time "for a week or so." In November of 1994, around the Thanksgiving holiday, the Fifty-One traveled to the Caribbean so that the family could use it there for recreational purposes. The Fifty-One remained in the Caribbean for ten to 14 days with the family aboard. After the Wiviott children and grandchildren got off, the Fifty- One went on to the Virgin Islands, where Mr. and Mrs. Wiviott's friends came aboard and were entertained by the Wiviotts. In January of 1995, some time "shortly after the 1st," when the Fifty-One was in St. Maarten (where it was based for the winter), the Wiviott family once again spent time aboard the Fifty-One. The foregoing instances of out-of-state, non-charter, non-business-related use of the Fifty-One by the Wiviott family occurred when Captain Cheney was in command of the vessel. The Wiviott family continued to make such use of the Fifty-One during the time Captain Elario was captain. When Captain Elario took over the Fifty-One in St. Lucia (from Paul Canvaghn, who had been captain for only a day or two), Mr. and Mrs. Wiviott were aboard the vessel. They remained on board for approximately a week as the Fifty-One cruised the Caribbean. During that week, Mrs. Wiviott swam, laid in the sun, relaxed, and ate meals prepared by the Fifty- One's chef. She did not perform any tasks designed to further Petitioner's charter business. Subsequently, while Captain Elario was still captain, Mr. and Mrs. Wiviott took a non-charter, non-business-related trip on the Fifty-One to the Bahamas. Also during the time Captain Elario was captain, when the Fifty-One was in Hilton Head, South Carolina, Mr. Wiviott's brother, Howard, and Howard's wife, came aboard, and they remained on the yacht as it traveled to Norfolk, Virginia. Howard and his wife did not perform any tasks designed to further Petitioner's charter business while aboard the Fifty- One. Mr. and Mrs. Wiviott's daughter, along with her two young children, stayed overnight on the Fifty-One when, while under Captain Elario's supervision, it was docked at the Capital Marina in Washington, D.C. During the daughter's and children's stay, there was a party celebrating the youngest child's birthday. Indicative of the amount of time that Mr. and Mrs. Wiviott spent aboard the Fifty-One were the clothing and other personal items that (as a convenience) they stored (in a locker) on the Fifty-One (so that they would not have to bring these items with them each time they boarded the vessel). (These items were moved from the locker to another area on the Fifty- One, when necessary, to accommodate charterers using the stateroom in which the locker was located). Whenever the Fifty-One returned to Florida, it underwent needed repairs and maintenance. It also cruised the waters of the south Florida area, docking at various facilities. It did so not only "to be stretched," but to gain additional exposure among "mega" yacht charter brokers. In addition, while in Florida, the Fifty-One was stocked with supplies and provisions (including rack of lamb, veal, lobster tails, baked goods, gourmet foods, specialty items, wines, bath and beauty products, and party supplies) to be available for use by those on board when the Fifty-One was outside Florida, including not only charterers (such as Mutual of Omaha Marketing Company and Prince Aziz) and their guests, but also Mr. Wiviott, his family, and friends (when they were on board the Fifty-One for non-business-related, personal purposes). The Fifty-One, while in Florida, was also provided with fuel for charter, as well as non-charter, non-business related, trips outside Florida. Petitioner's charter business proved to be unprofitable. Expenses far exceeded revenues. (Petitioner, however, was able to sell the Fifty-One for more than the purchase price it had paid, receiving approximately $5.7 million, excluding commissions, for the Fifty-One in February of 2000.) By letter dated October 11, 1996, the Department informed Petitioner that it was going to audit Petitioner's "books and records" for the Audit Period. Petitioner was selected for audit because it had reported only a relatively small amount of taxable charter revenue on the Florida sales and use tax returns it filed during the Audit Period. The Department's "audit findings" were that the Fifty-One "was purchased for [a] dual purpose, for leasing and to be used by the shareholder" and therefore "the vessel and other purchases [made by Petitioner during the Audit Period under its sales tax exemption certificate, including its purchase of the Choice One] are taxable at the cost price." Based upon these audit findings, the Department issued a Notice of Intent to Make Audit Changes, in which it advised Petitioner that Petitioner owed $430,047.95 in sales and use taxes, $215,023.97 in penalties, and $169,672.70 in interest through July 18, 1997, for a total of $814,744.62, "plus additional interest of $141.39 per day . . . from 07/18/97 through the date [of] payment." By letter dated April 22, 1998, Petitioner protested the Department's proposed assessment. On November 1, 1999, the Department issued its Notice of Decision sustaining the proposed assessment and announcing that, as of October 6, 1999, Petitioner owed the Department $929,270.52, with "interest continu[ing] to accrue at $141.39 per day until the postmarked date of payment." Petitioner subsequently filed a Petition for Chapter 120 Administrative Hearing on the Department's proposed action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order sustaining its assessment against Petitioner in its entirety. DONE AND ENTERED this 26th day of October, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 26th day of October, 2001.
The Issue Whether the application of Ronald J. Palamara (“Palamara”) for licensure as a yacht and ship broker under Chapter 326, Florida Statutes, should be granted or denied.
Findings Of Fact The Petitioner was previously a licensed yacht and ship broker in Florida, holding Yacht Broker License No.324. On April 28, 1999, the Petitioner’s prior license expired. The Petitioner reapplied for a Yacht Broker license on February 24, 2000. Robert Badger (Badger), at that time an investigator with the Division, investigated the application for form pursuant to Rule 61B-60.003(2), Florida Administrative Code, and found that there were no problems with the form of the application. Badger also reviewed the application for moral character of the applicant pursuant to Rule 61B-60.003(3), Florida Administrative Code. On the application, the Petitioner indicated that he had a criminal background, but failed to disclose the nature of the criminal background on the application. In a letter from the Division addressed to the Petitioner, additional information was requested regarding his criminal background. The Petitioner replied in a letter that he had been convicted of a misdemeanor for resisting an officer without violence. The Petitioner also disclosed on the application that he had a civil Final Judgment against him in the matter of Chinnock Marine, Inc. v. Barthelemy & Palamara, Case No. 98- 19512 (Fla. 17th Cir. 1999). He did not fully disclose the details relating to events that led to the judgment. Instead, he stated on the application that the claims were “unfounded” and that Chinnock Marine “misled the court.” The subject application is dated February 22, 2000. On that application, the Petitioner was specifically required to disclose any “pending” civil suits involving a yacht. At the time of his application, another civil matter was pending against the Petitioner in World Class Yachts v. Palamara, Case No. 99-12923 (Fla. 17th Cir. 2001), which was filed on July 22, 1999. The Petitioner failed to disclose the pending World Class Yachts civil suit.2 Subsequent to the filing of the subject application, a non-final order was entered against the Petitioner finding that he was in default and rendering judgment for World Class Yachts in the amount of $157,500. The Petitioner took an interlocutory appeal of the circuit court’s non-final order of default to the Florida Fourth District Court of Appeal. The Fourth District Court of Appeal affirmed the trial court's order of default. Palamara v. World Class Yachts, Case No. 4D01-3260 (Fla. 4th DCA 2001). The Petitioner admits that the World Class Yachts case relates to a yacht. Although the circuit court had not entered a Final Judgment against the Petitioner in the amount of $157,500.00 at the time of the hearing in this case, the World Class Yachts civil litigation involving a yacht should have been disclosed on the application pursuant to Rule 61B-60.003(3)(a)6, Florida Administrative Code. In both Chinnock Marine and World Class Yachts, the Petitioner has moved to vacate the default judgments, alleging that he was not properly served. The Petitioner has worked in the yacht brokerage business in South Florida for many years. He has never had any disciplinary action taken against his license. In the community in which he lives and works he enjoys a reputation for being a person of integrity, honesty, and good moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be issued in this case granting the license sought by the Petitioner. DONE AND ENTERED this 3rd day of September, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of September, 2002.
The Issue Whether the Respondent operated as a salesperson without being the holder of a valid and current license as a real estate salesperson, in violation of Section 475.42(1)(a), Florida Statutes, and therefore in violation of Section 475.25(1)(e), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. The Respondent is and was at all times material hereto a licensed real estate salesperson in the State of Florida having been issued license number 0475436 in accordance with Chapter 475, Florida Statutes. The last license was issued to Respondent as a salesperson c/o Dolphin Realty Referral Inc., 2525 Pasadena Avenue, Suite L., South Pasadena, Florida 33707. On December 18, 1996, Respondent presented a written offer to listing agent Sharon Simms for property located at 3900 48th Avenue, South, St. Petersburg, Florida. In connection therewith, Respondent, who was the building contractor for buyer Joseph S. Sparra, accepted a $2,000 deposit which was placed in the escrow account of Dolphin Realty Referral Inc., of which Thomas J. Hassel was qualifying broker. Hassel drafted the contract and qualified Joseph S. Sparra with Sigmund Financial for a first mortgage. The Respondent was employed by Hassel as an independent contractor. Thomas Hassel, the Respondent's employing broker, advised him that he was not sure Respondent's license was active, but the Respondent made no attempt to contact the Petitioner to ascertain his licensure status. On January 24, 1997, the Respondent accompanied Joseph S. Sparra to the closing at Anclote Title Services, where the Respondent provided the escrow money and accepted a $5,780 commission check on behalf of Dolphin Realty Referral, Inc. During the entire transaction, Respondent was not properly licensed with Dolphin Realty Referral, Inc., nor with any other real estate brokerage. Respondent's license was involuntarily placed on inactive status from January 1, 1996, through July 20, 1997, due to no employing broker. Hassel later advised Respondent that his license was not transferred to the new corporation when the broker changed its name from Dolphin Realty of Pinellas County to Dolphin Realty Referrals, Inc. The Respondent did not accept a share of the commission on the house in St. Petersburg, Florida. Respondent did not participate as a real estate salesperson in any other transaction while his license was on inactive status.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: The Florida Real Estate Commission issue a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(a) and (e), Florida Statutes, as charged in the Administrative Complaint; and, Impose an administrative fine of $500 and require Respondent to complete a 45-hour salesperson's post-licensure course, as prescribed by the Florida Real Estate Commission. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Steven W. Johnson, Senior Attorney Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802 John A. Kitzmiller, pro se 2613 59th Street, South St. Petersburg, Florida 33707 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented herein is whether or not the names Miami Yacht Sales, Inc. and Miami Yacht Brokerage, Inc. are deceptively similar.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifing, documentary evidence received, pleadings and responses, and the entire record compiled herein, I hereby make the following relevant factual findings. On 0ctober 7, 1977, Respondent, Division of Corporations, issued Charter number F40099 permitting the use of the corporate name Miami Yacht Sales, Inc. to the Petitioner in reliance on Chapter 607, Florida Statutes. On January 3, 1984, Respondent, Division of Corporations, issued Charter number 087231 permitting, the `use of the corporate name Miami Yacht Brokerage, Inc. to the Respondent in reliance on Chapter 607, Florida Statutes. Petitioner is engaged in the business of selling new and used boats and yachts. Petitioner conducts its business at 2122 N. River Drive, Miami, Florida. Petitioner, through its president, Larry Stevens, related one incidence of a telephone communique from Merrill Stevens Brokerage, a competitor which was seeking information respecting one of Respondent, Miami Yacht Brokerage, Inc., salesmen. Mr. Stevens also related at least one instance wherein a supplier misdelivered a package which was destined for the Respondent's business, end Petitioner rerouted that package to Respondent. Petitioner, through Mr. Stevens, generally alluded to "confusion, client-wise" which he believed would continue as soon as Respondent, Miami Yacht Brokerage, Inc., was able to get an advertisement in the Yellow Pages of the Miami telephone directory. Petitioner pointed to no specific acts of confusion or other deceptive practices by Respondent, Miami Yacht Brokerage, Inc.. example, Petitioner did not substantiate that any of its customers went to the Respondent's business and had to ultimately be directed to Petitioner's business. Likewise, Petitioner did not allege or otherwise claim that the name Miami Yacht Brokerage, Inc. was selected by Respondent based on an attempt to deceive or otherwise defraud the consuming public. As stated herein, Respondent, Miami Yacht Brokerage, Inc., did not appear at the hearing herein although it was properly noticed by copy of a notice of hearing filed May 28, 1984 scheduling this matter for hearing on June 28, 1984. However, the evidence reveals that Respondent, Miami Yacht Brokerage, Inc., is also engaged in the business of selling new and used boats and yachts and its business is situated approximately four miles from Petitioner's business site.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is therefore recommended that the petition of Miami Yacht Sales, Inc., seeking to forbid the use by the Respondent of the name Miami Yacht Brokerage, Inc., be DENIED. Recommencded this 13th day of November, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1984.
The Issue Whether Respondent violated Section 326.004(1), Florida Statutes, as alleged in the Amended Notice to Show Cause, by acting as a broker or sales person, without a license, on two occasions.
Findings Of Fact Based on the testimony and documentary evidence, the following facts are determined, as follows: Joseph Daniel Judson, Respondent, has never been licensed as a yacht and ship broker or sales person in the state of Florida. Respondent was informed in 1999 of the general requirements for being a yacht and ship broker and/or sales person in the state of Florida, and the need to obtain a license. Stephen D. Silver and Vicky A. Silver purchased a Pacemaker motor yacht (Hull ID No. 509484) on May 5, 1998, from Kenneth Thompson and Jeannette Myers in Brevard County, Florida. The Pacemaker motor yacht is over 32 feet in length and weighs less than 300 gross tons. Respondent listed the Pacemaker motor yacht for sale on his website during the summer of 2000. Respondent indicated that he had recently purchased the Pacemaker motor yacht on his website. Respondent sought to broker the yacht to a perspective buyer. The Pacemaker motor yacht listed on Respondent's website was the same Pacemaker motor yacht which was stored at the Banana River Marina in Brevard County, Florida, and was owned by Mr. and Mrs. Silver at that time. Respondent is not and has not been the owner of the Pacemaker motor yacht in question. Douglas Jeran, II, is the current owner of the yacht. He purchased the yacht directly from Mr. and Mrs. Silver. Dr. James H. Southard, Jr., first came into contact with Respondent via Respondent's internet website. Respondent sold a 41-foot 1949 Chris Craft (Hull ID No. C41015), held in his name, to Dr. Southard using a Texas Bill of Sale and Certificate of Title on April 14, 2000. Dr. Southard paid Respondent the full $10,000 purchase price for the Chris Craft. The Chris Craft is in excess of 32 feet in length and weighs less than 300 gross tons. Dr. Southard did not receive the title to the Chris Craft from Respondent until January 2001. Dr. Southard was a naïve yacht purchaser and was unaware that Respondent had not provided him with all the needed documents at the time of the sale. Respondent continued to use the title to Dr. Southard's Chris Craft as security in order to purchase another yacht, after Respondent had sold the yacht to Dr. Southard. Respondent did not inform Dr. Southard that the legal title to the Chris Craft was being used as security in another yacht transaction. Dr. Southard never conveyed any interest in the Chris Craft back to Respondent. Months after Respondent transported the Chris Craft to the Banana River Marina in Brevard County, Florida, Dr. Southard called to inquire whether Respondent had brought his Chris Craft to the marina and had it under repair. Respondent indicated to Dr. Southard that he had invested a "substantial" amount of money to refurbish the Chris Craft, purchased from Respondent for $10,000. However, the estimated value of the Chris Craft months after delivery to the marina was still approximately $10,000. Respondent charged Dr. Southard $10,000 for used diesel engines although he only paid $2,500 for them. Respondent initiated the search for the diesel engines and insisted on handling any repair work needed to make the vessel seaworthy. Respondent charged Dr. Southard a substantially inflated amount for repairs that he allegedly made to the diesel engines. Respondent told Dr. Southard that the Chris Craft was going to be placed in the water during the week of July 18, 2000. The Chris Craft was never returned to the water by Respondent. When the rusted diesel engines were recovered from the Banana River Marina, they were found partially disassembled and exposed to the elements due to sitting in the rain. Neither the boat nor the diesel engines were in a seaworthy condition when recovered. Leaving the Chris Craft out of the water for years without constant maintenance has rendered it virtually valueless. Dr. Southard lost his investment of $30,000 on the Chris Craft in his dealings with Respondent. Respondent operates an internet business when he seeks to buy and sell yachts. Respondent listed the Chris Craft owned by Dr. Southard on his website for sale, after April 14, 2000, when he was no longer the owner of the vessel. In addition, Dr. Southard's Chris Craft had a for sale sign posted on it, indicating a sale price of $50,000, and listing Respondent's phone number.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: That Respondent be found guilty of two counts of acting as a broker or sales person of yachts without a license under the Florida Yacht and Ship Broker's Act. That a civil penalty be imposed on Respondent in the amount of $10,000 for the unlicensed brokering of the Pacemaker motor yacht and an additional $10,000 for the unlicensed brokering of the Chris Craft for a total fine of $20,000. That a cease and desist order be issued and that the Secretary impose such other and reasonable provisions as is necessary. DONE AND ENTERED this 24th day of January, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 24th day of January, 2003. COPIES FURNISHED: Janet Gray Department of Business and Professional Regulation 5080 Coconut Creek Parkway, Suite B Margate, Florida 33063-3942 Joseph Daniel Judson a/k/a Dan Judson Post Office Box 146 Hallandale, Florida 33008 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ross Fleetwood, Division Director Division of Florida Land Sales, Condominiums, and Mobile Homes Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
