The Issue By this petition the Florida Game and Fresh Water Fish commission (GFWFC) seeks administrative review of Respondent's, Department of Health and Rehabilitative Services (HRS), denial of a permit to operate a swimming facility at the J. W. Corbett Wildlife Management Area, Palm Beach County, Florida, in connection with its operation of the Everglades Youth Camp. Four witnesses were called by Petitioner, Six witnesses were called by Respondent, twenty exhibits were offered into evidence, and sixteen exhibits were admitted. Objection to the admission of Exhibits 6, 7 and 8 was sustained on the ground that the photographs could not be identified by a witness who could testify to the accuracy of the photographs. Objection to the admission of Exhibit 14, a copy of a letter from Geotec, Inc., to the Youth Camp was sustained on the ground that it was hearsay. Subsequently, however, testimony was adduced that Respondent relied in part upon the exhibits not admitted in denying the permit requested.
Findings Of Fact Petitioner, GFWFC, has operated a youth camp at the J. W. Corbett Wildlife Management Area in Palm Beach County for the past six years. The camp is attended by youths of both sexes, ages 8 to 14 years. Normal facilities expected at a camp of this nature, including a sewage treatment plant, are provided. During the summer camp period 90 to 110 campers per week are enrolled. At other times the facilities are utilized on weekends by scout groups and clubs. A six-acre lake with a maximum depth of 6 to 8 feet forms an essential part of the recreation facilities of the camp. Over the years GFWFC has removed silt from the lake and most of the area now used for swimming has a white sand bottom. There are no streams that feed the lake. The water level in the lake is maintained by the ground water table in the area. During the camp season the lake is used by swimmers twice per day--once in the morning and once in the afternoon. Bacteriological samples of the water are taken at weekly intervals during the camping season and more frequently if the coliform count is high. Medical records of the camp indicate the only water-related diseases experienced by the campers has been ear infections which average 5 to 10 per week. As a result of the incidence of ear infections the doctor recommended ear drops be administered to all swimmers. The Director of the camp recalled only one time when the coliform count reached 1,000 organisms per 100 milliliters. On that occasion he put chlorine in the lake and the coliform count returned to a low reading. Exhibit 3 shows most probable number (MPN) coliform count per 100 milliliters in the youth camp lake in July and August, 1974 and 1974, during the camping season to vary between 1 and 450, for an average of approximately 115 coliform organisms per 100 milliliters. Recently Petitioner pumped down the lake to remove accumulated silt, regrade the lake to reduce surface water runoff into the lake and to create an outfall to permit water to flow out of the lake. During this evolution the question of a permit arose and after application therefor was made by Petitioner, Respondent refused to issue the permit which is required by Chapter 514, F.S. for the operation of a public swimming place. In the application for permit (Exhibit 1) submitted by Petitioner the information required by 504.03 F.S. and Rule 10D-5.24 F.A.C. was included. Palm Beach County Health authorities consider no lake that does not receive flushing from a spring or artesian source to be a natural swimming place or able to qualify for a permit. These authorities recommended denial of the permit in the instant case. They consider all of the small lakes west of the coastal ridge in Palm Beach County to be not lakes, but mere depressions in the ground which receive their water supply from the ground water table. The reasons for denial of the permit by HRS are shown in Exhibit 2 as follows: "1. Non-compliance with Subsection 10D-5.24(1) FAC in that sanitary surveys show no water flow-through or feed to the requested pond area except by surface run-off and/or rainfall; water from ground water table may possibly provide a minimal source of water when the head pressure of the filled pond is eliminated. Accordingly, there is no flushing of said pond. The pond being in a non-fenced area in a natural habitat is not protected from animal body pollution, and additionally, will be receiving bather pollution. With no flow-through, bathtub-like conditions described above, the subject pond constitutes an area by or through which the health or life of individuals may be threatened or impaired or directly or indirectly disease may be caused (386.01 F.S. and 10D-5.24 FAC). The marl shores and sides of the pond retain water and thereby are capable of retaining water-borne diseases. There is a high likelihood the pond will be subject to high turbidity in the bathing area. In the past the bacterial quality of the pond water has been erratic. * * * 8. (sic) That the holding out of the pond subject herein by the Commission in a youth camp under the conditions described above places, and in fact encourages, the use of said facility by young people and subjects them to a high probability and potential risk dangerous to their health and the health of the community and the health of the people of the State of Florida, contrary to the injunction of the Legislature of the State of Florida to this agency to protect and oversee the public health (Chapters 381, 386, 514 F.S.)." In conducting a sanitary survey Palm Beach County officials consider all other forms of pollution in addition to the possible sources of sewage contamination and industrial wastes specified in Rule 10D-5.24(1) F.A.C. These "other forms of pollution" are interpreted by Palm Beach County officials to include plant nutrients, organic chemicals, heat, and any and all forms of pollution that could cause health problems including wild animals having access to the lake, sedimentation, turbidity of the water, decaying vegetation, and water retention capability of the lake boundary. Otherwise stated they consider all scientific information available on pollution in determining whether or not a natural swimming place will be granted a permit. There are no fresh water natural swimming places in Palm Beach County that have current permits. HRS in denying the permit in the instant case relied heavily upon the recommendation of Palm Beach County. HRS considers natural swimming places should be as free from pollution and communicable diseases as possible. Without some flushing of the system pollutants will increase, principally from use by bathers, and these pollutants will remain in the water for a long time. No evidence was submitted regarding the dissipation of pollutants by aeration, bacteria, animal life, etc. In order for the youth camp lake to meet the dilution criteria considered necessary by HRS, 50,000 gallons of water per day into the lake is required. Otherwise the water would need filtering and the addition of approximately 1,000 pounds of chlorine per day. In denying the permit HRS adopted the position of Palm Beach County that flushing of the lake was necessary in order to dilute the pollutants. Leon County Health officials use only the criteria listed in Rule 100- 5.24 F.A.C. in determining whether or not to recommend granting a permit for a natural public bathing place. The bacteriological survey is done by Leon County rather than by the applicant. Several lakes in Leon County have been issued permits. Some in U.S. National Forests were formerly permitted while operated by a concessionaire, but now that they are operated by the Forestry Division no permit is applied for. Some of the lakes used as natural swimming places in Leon County have no source of water supply other than the ground water table. The bacteria count is taken at weekly intervals and at lakes which get heavy usage the coliform count exceeds 1,000 organisms per 100 milliliters following heavy Sunday afternoon usage. The coliform count can be reduced by the use of chlorine; however, there is no assurance in natural swimming places that the chlorine will be evenly distributed or that all areas of the lake will receive chlorine. Other natural swimming places in Leon County are used by swimmers but a permit has not been recommended by the county because the coliform count is over 1,000 organisms per 100 milliliters. A national committee on water quality criteria for swimming pools and bathing places has recommended discontinuance of the use of total coliform count in determining the condition of the water from a public health standpoint. They would use only fecal coliform count and recommend that all factors that may pollute the water be considered and that dilution of the pollution by the flow- through of water should be a requirement for bathing places. Other witnesses for HRS attested to the dangers to the health of swimmers using the same water used by other swimmers, wild animals, and waterfowl. Swimmers pollute the water with fecal coliforms, virulent diptheria organisms from the nose and throat, as well as streptococci, staphylococci and other flagellates in nasal paryngeal passages. Wild animals, notably raccoons, carry rabies, meningitis germs and salmonella. Waterfowl cause other diseases and droppings from these waterfowl remain viable on the lake bottom for years. Similarly, tetanus germs are carried in water by the soil. As a result water related injuries are subject to tetanus infection.
The Issue Whether Respondent, a certified swimming pool contractor, committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed by the Construction Industry Licensing Board (CILB) as a certified swimming pool contractor, having been issued license number CP C012912, and at all times material the Respondent was a qualifying agent of Blue Dolphin Fiberglass Installations, Inc. (Blue Dolphin). On May 4, 1990, Blue Dolphin entered into a contract with Mary Gonzalez to install a fiberglass swimming pool at Ms. Gonzalez's home at 351 Southwest Thirtieth Court, Miami, Florida, for the total sum of $14,395. The written contract was a form prepared by Blue Dolphin. Among other provisions, the contract required Blue Dolphin to have its work inspected. The property owners paid the $14,395 contract price as follows: $1,395 on May 4, 1990; $10,000 on May 11, 1990; $2,000 on May 29, 1990, and $1,000 in March 1992. In June of 1990, Blue Dolphin installed a fiberglass swimming pool at the Gonzalez home. At all times pertinent to this proceeding, the Gonzalez home was located within the City of Miami, where construction, including the installation of swimming pools, was governed by the South Florida Building Code (SFBC). To prevent a fiberglass pool from being moved upward by rises in the groundwater table when the pool was empty, the SFBC required the installation of the subject fiberglass pool to include a 36-inch by 4-inch concrete perimeter walkway strengthened with welded steel wire mesh reinforcement. The SFBC required that Blue Dolphin have the placement of the reinforcing steel wires inspected by the City of Miami building department before it poured the concrete for the perimeter walkway. Respondent knew of this requirement. When the subject pool was originally installed by Blue Dolphin, steel reinforcement for the concrete walkway was properly placed before the concrete was poured. The pool as originally installed was not level. On June 12, 1990, Blue Dolphin performed work in an effort to correct that condition. Gloria Gonzalez, the daughter of Mary Gonzalez, lives at the subject property and observed the original work and the corrective work. She testified that the corrective work included removal of a portion of the deck along the entire south side and parts of the east and west sides of the pool. She estimated that approximately sixty percent of the entire deck was removed and subsequently replaced. When Blue Dolphin replaced the parts of the deck that it had removed, it did not place reinforcing steel in a substantial portion of the replaced deck. Gloria Gonzalez estimated that eighty percent of the deck that was replaced did not have steel reinforcement.1 Blue Dolphin failed to have the steel reinforcement inspected by the City of Miami as required by the SFBC when it originally poured the concrete deck and when it replaced part of the concrete deck when the corrective action was taken. The SFBC required Blue Dolphin to obtain a satisfactory final inspection for the project by the City of Miami. As of the time of the final hearing, the project had not passed final inspection. On May 10, 1990, Blue Dolphin obtained two building permits from the City of Miami for the subject project. Blue Dolphin obtained permits to complete the project on June 25, 1992, and, after the first permit expired, it obtained a second completion permit on August 19, 1997. The second completion permit expired on November 14, 1998. At the final hearing, Respondent acknowledged Blue Dolphin's continuing duty to obtain a satisfactory final inspection of the job and expressed willingness to do whatever was necessary in order to pass the final inspection. Respondent also admitted that he and his company were negligent in the completion of this project. Passing final inspection establishes that the pool was legally built and can be legally used. On February 28, 1998, the City of Miami issued a letter to Mary Gonzalez threatening to impose a fine against her in the amount of $250.00 for failing to obtain mandatory inspections for one of the building permits obtained by Blue Dolphin in 1990. Ms. Gonzalez's daughter, Gloria Gonzalez, was able to get the City of Miami building department to agree to waive the fine by explaining the history of the project to the building officials. The ability of Mary Gonzalez and her family to use the pool was impaired by Blue Dolphin's failure to properly install the pool and to correct defects in the pool so that the project could pass final inspection. Petitioner presented the testimony of a pool contractor2 who estimated that the cost of replacing the entire deck would be $8,975.00. The lack of steel reinforcement could be rectified by the removal of the portions of the deck that do not have the steel reinforcement. Petitioner's expert was not prepared to estimate the cost of replacing only the portions of the deck that had not been reinforced before the concrete was poured. Respondent's testimony established that replacing only the portions of the deck that had not been reinforced would be substantially less than the estimate provided by Petitioner's witness. At the time the subject pool was initially installed, Blue Dolphin was in the height of its busy season and had more jobs going than Respondent could properly supervise. Section 489.1195(1), Florida Statutes, imposed on Respondent, as Blue Dolphin's qualifying agent, the duty to supervise the company's operations, including all field work at all sites. Petitioner's costs of investigation and prosecution of this proceeding, excluding attorney's fees, totaled $1,436.50 as of April 23, 1998. Respondent has been disciplined by Petitioner on three prior occasions. On December 8, 1994, Petitioner entered a Final Order in Petitioner's case number 92-15716 pursuant to a settlement agreement of alleged violations of Section 489.129(1)(e), (f), and (g), Florida Statutes (1992). By the settlement, Respondent neither admitted nor denied the alleged violations. Respondent agreed to pay a fine of $100 and costs in the amount of $625. On August 13, 1990, Petitioner entered a Final Order in Petitioner's case number 101966 that found Respondent guilty of violating the provisions of Section 489.129(1)(d) and (m), Florida Statutes, by failing to obtain a final inspection for a pool installation and for committing negligence, incompetence, misconduct, and/or deceit in the practice of contracting. As a result of the Final Order, Respondent paid an administrative fine in the amount of $2,500 and his license was suspended from August 13, 1990, to September 18, 1990 (the date he paid the administrative fine). On April 1, 1986, Petitioner entered a Final Order in Petitioner's case number 0058699 pursuant to a settlement agreement of alleged violations of Sections 489.1119, 489.129(1)(g), (j), and (m), Florida Statutes. By the settlement, Respondent neither admitted nor denied the alleged violations. Respondent agreed to pay a fine of $1,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered that dismisses Count I of the Amended Administrative Complaint, but finds Respondent guilty of Counts II, III, and IV of the Amended Administrative Complaint. For the violation of Count II, Petitioner should impose an administrative fine against Respondent in the amount of $1,000. For the violation of Count III, Petitioner should impose an administrative fine against Respondent in the amount of $2,000. For the violation of Count IV, Petitioner should impose an administrative fine against Respondent in the amount of $2,000. The Final Order should order Respondent to obtain from the City of Miami a satisfactory final inspection of the Gonzalez pool within 90 days of the entry of the Final Order. The Final Order should place Respondent's licensure on probation for two years and should impose reasonable conditions of probation pursuant to Rule 61G4-17.007, Florida Administrative Code. The Final Order should order Respondent to pay within 90 days of the entry of the Final Order Petitioner's costs of investigating and prosecuting this matter, excluding costs associated with attorney's time. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 21st day of April, 1999
The Issue Whether Florida Administrative Code Rules 61G15- 21.009(1)(b) and (3) and 61G15-20.0015(3) are invalid exercises of delegated legislative authority.
Findings Of Fact Based on the stipulated facts submitted by the parties and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Board of Professional Engineers ("Board") is the state agency responsible for the licensure and regulation of professional engineers in Florida. §§ 471.007, 471.008, 471.013, and 471.031, Fla. Stat. (2005).1 Mr. Hursh is an individual who applied for licensure by endorsement with the Board to be licensed as a professional engineer. Mr. Hursh is licensed in another state, so he applied for licensure by endorsement pursuant to Section 471.015(3)(b), Florida Statutes. Mr. Hursh failed to pass the required Principles and Practice Examination, provided by the National Council of Examiners for Engineers and Surveyors ("NCEES") five times since October 1, 1992, in an effort to become licensed as an engineer in Florida. In April 2004, Mr. Hursh passed the NCEES examination in Delaware, met Delaware's other licensing criteria, and, on July 14, 2004, was issued a license to practice engineering by the State of Delaware. In August 2004, Mr. Hursh filed his application for licensure by endorsement with the State of Florida and subsequently provided all supporting documentation as requested by the Board, including a Verification of Licensure from the Delaware Association of Professional Engineers. Mr. Hursh did not provide a copy of the Delaware licensing requirements. On January 19, 2005, the Application Committee of the Board denied Mr. Hursh's application, citing as the reason "5 time failure - need 12 hrs. of courses prior to endorsement." Delaware's licensing criteria was never reviewed by the Board to determine if the Delaware licensing criteria was substantially the same as Florida's licensing criteria. On February 10, 2005, the Board filed a Notice of Denial of Mr. Hursh's application for licensure by endorsement, citing as the basis for the denial that Mr. Hursh had failed the examination five times and needed to meet the additional college credit requirements of Section 471.013, Florida Statutes, and Florida Administrative Code Rule 61G15.21.007.
Findings Of Fact Richard A. Howarth, Petitioner, owns Birdsong Motel located at 12928 Seminole Boulevard, Largo, Florida, and has applied to Respondent for a public swimming pool operating permit. An inspection on September 14, 1984 by representatives of Respondent indicated the pool does not meet the minimum width requirement set forth in Rule 10D-5.67(2), F.A.C. Petitioner contracted with Aquamarine Pool Co., Inc., for the construction of a public swimming pool at Birdsong Motel. The President of Aquamarine Pool, Mr. Trevor A. Jones, admitted that a mistake was made in constructing the pool such that it is only fourteen (14) feet, two (2) inches wide. There is no factual dispute that the pool is fourteen feet, two inches wide although petitioner contracted for a public swimming pool that would meet all state and local health requirements. The pool was designed and engineered properly but the mistake occurred in construction of the concrete pool. The ten inch shortage of width of Petitioner's pool represents a 5 1/2 percent error in the minimum width required by Respondent for public swimming pools. Minimum width requirements are a safety feature to avoid injury resulting from jumping into a pool from one side and striking the opposite side of the pool. The parties have submitted proposed findings of fact pursuant to Section 120.57(1)(b)4, F.S. In making the above findings of fact, Petitioner's proposed findings of fact 1, 2 and 3, and Respondent's proposed findings 1, 2, 3, 4, 5, 6, 9 and 10 are specifically approved. The remaining proposed findings of fact submitted by the parties have been rejected as subordinate, cumulative, immaterial, unnecessary or not based upon competent, substantial evidence.
Findings Of Fact Pine Island Properties, Ltd., (Petitioner) owns a residential development project identified as "Pelican Inlet" located on Pine Island, Lee County, Florida. The Petitioner seeks a permit to fill 0.78 acres of wetlands to construct the project. The Department of Environmental Protection (Department) is responsible for reviewing permit applications under Chapter 403, Florida Statutes and related administrative rules. The Department file number for this application is 362004755. The Pelican Inlet project is located in Lee County, Florida, Sections 4 and 9, Township 45 South, Range 25 East. The project impact site is immediately adjacent to "Forty Acre Bay/Bay 36" (bay) which is a Class II Outstanding Florida Water and part of the Pine Island Sound Aquatic Preserve. There are no other developments on the bay. Access from Pelican Inlet to Pine Island Sound is via the bay. Pine Island Sound is a popularly used water body, with substantial fishing and recreational use. The Pelican Inlet development fronts a man-made canal which runs generally east-west. The canal is between two to ten feet deep. The Petitioner did not construct the canal. It appears that during the dredging of the canal, spoil was deposited along the canal banks, resulting in an upland area in the midst of the wetlands. The spoil is vegetated by Australian pine. The elevation of the property drops approximately 1.5 feet where the higher spoil abuts the wetlands. The Petitioner owns only the north half of the canal. Other parties not involved in this application own the south half of the canal. According to the Petitioner, the south half owners are not interested in assisting in the Petitioner's project. Extensive mangrove growth exists immediately north and south of the project impact area. Immediately along the banks of the canal are red, black, and white mangroves. At the east end of the canal is a dense growth of mature black mangroves. Further to the east lie undeveloped uplands vegetated with slash pine and saw palmetto. Although there has been some trash dumping in the area, the mangroves to be impacted by the proposed development are part of a high quality, functioning, healthy, and productive wetlands system. The area currently provides broad water quality benefits and wildlife habitat. The north part of the impacted wetlands area contained a dirt road. Exotic vegetation, including Brazilian pepper Australian pine and Melaleuca, has invaded the trail area. Away from the road, the wetlands are dominated by buttonwood, seashore dropseed, beach carpet, salt grass, needlerush, and leather fern. The Western end of the canal connects to the bay. Water depths in the bay average approximately 1.5 feet deep, but vary significantly. The bay bottom is composed of fine organic mud. There is evidence of damage caused by boat propellers in some parts of the bay. The bay is used by species of fish, snails, mollusks, crabs and birds and is regarded as a productive marine habitat. Within the development, the Petitioner seeks to locate a total of 23 single family homes. Fourteen of the 23 homes will be located directly along the canal. Of these 14, eight will require placement of fill in the adjacent mangroves; two others are entirely within the mature mangrove wetlands. The remaining nine houses would be placed in the area east of the canal. Within the wetlands and uplands portion of the property, the development will include the 23 houses, driveways, access roads, sewer treatment plant, spreader swale and retention area. Subsequent to the filing of the application, the parties engaged in an extensive dialogue in an attempt to reach a resolution of the matter. The issues raised by the Department essentially centered on two general issues, minimization and mitigation of the wetlands lost through fill and resolution of the anticipated secondary impacts of the project. The parties appear to have resolved concerns related to the mitigation of the wetlands lost and impacted by the fill. At the hearing, there was minimal evidence and testimony related to the wetlands mitigation issues. Based on the apparent lack of conflict related to the wetlands loss mitigation, this Recommended Order is directed towards the cumulative and secondary impacts of the project. On August 21, 1991, the Petitioner filed an application for permit/water quality certification with the agency. On October 28, 1991, the Department conducted a field appraisal of the project. Based on the appraisal, the Department determined that the project was unpermittable as proposed in the application. On December 24, 1991, the Department forwarded to the Petitioner a copy of the site inspection report. In the report, the Department identifies a number of concerns related to the expected environmental impact of the project. Thereafter, the parties began an extensive dialogue regarding the project. On March 12, 1992, the Department issued a Notice of Permit Denial. The parties continued to discuss mitigation, and several extensions to the deadline for filing an administrative hearing request were granted by the Department. There is no dispute regarding timeliness of the request for hearing. The Notice of Permit Denial indicates that the Department's concerns center on the potential for turbidity-related water quality violations which could result from unstabilized fill, the adverse floristic impact caused by fill washout into adjacent wetlands, the loss of the filtering benefits provided via the filled wetlands and the adverse impact on wildlife habitat. The Notice of Permit Denial further identifies concerns related to the cumulative and secondary impacts of the project. Such impacts include boat docks in the canal resulting in an increase in the intensity of boating activity in the Bay. The Notice also addresses the precedential impact of permitting this project as it relates to other properties similarly situated, specifically, the property on the south side of the Canal. The expected increases in boat traffic will result in turbidity and damage to the bay bottom through prop dredging, in turn causing injury to the marine habitat's sea grasses and benthic organisms. During the ongoing dialogue with the Department, the Petitioner submitted a mitigation plan. In the Department's letter of June 26, 1992, related to its review of the plan, the Department notes that the proposal failed to address the anticipated impact of boat users on the shallow bay adjacent to the canal. Paragraph #23 of the letter states as follows: Please be advised that the submitted proposal does not adequately address the secondary impacts of the proposed development. There is still a high potential for boat use within the adjacent shallow bay which will significantly degrade this portion of the aquatic preserve, additional boating pressure could also result in requests for dredging a channel within this bay....Before a permit can be issued all of these impacts need to be addressed. One possible way to address these would be to provide easements over adjacent wetlands and the canal that specifically prohibit dock construction...and/or to fill in a portion of the canal to prevent large boats from utilizing the area. In a letter of July 29, 1992 in response to the Department's earlier transmittal, the Petitioner stated: Boat access to coastal waters of Lee is a very important aspect of this project, however only two of the twenty-four lots have direct private property access to the canal and these are lots 1 and 18. Only lot 1 has both canal and natural water frontage. The potential for secondary wetland impacts related to permitting of this project are real and are also a concern of the applicant. As to the issue of boat docks, the Petitioner stated: Pine Island Properties, Limited, the owner of the project, is not proposing to permit or construct any boat docks within the project boundary. Each lot owner must, if they wish to, make application through appropriate state and federal agencies for a boat dock. As to the matter of the shallow adjacent bay, the Petitioner stated: The existing water depths in the adjacent bay system already by itself mandates and places limits on access by large boats, ones with a deeper draft. Local knowledge of both bottom topography as well as tidal conditions and times is necessary for one to travel through these back bay areas. The applicant agrees to place reasonable size, i.e., draft, restrictions on boats allowed into and out of the project. The draft limit restriction for boats would be 24 inches. In additional all boats with engines larger than 35 horsepower would be required to have hydraulic motor/outdrive lifts capable of allowing adjustments in the depth of the operation of the propeller. The applicant also accepts responsibility of placing appropriate depth markers from the western end (exist) (sic) of the unnamed canal to the "between island" passage approximately 750 feet directly to the west. Placement of markers would identify the preferred travel route and inform boaters, through placement of signs, that they are in an aquatic preserve and caution them about damage to bottom of the bay if propellers are set to (sic) deep. By Department letter of September 21, 1992, the Department noted continuing concerns with the impacts of the project. In relevant part, the letter states, "[T]he Department still lacks reasonable assurance that the project's impacts will be offset. Also, you have not yet demonstrated to the Department's satisfaction that the project will be clearly in the public interest." The Department's September 21 letter addresses remaining questions about the wetlands fill area, as well as canal use restrictions. Specifically as to the canal issue, the letter states: Your proposal to place a draft restriction of 24" on boats using the canal to protect adjacent waters which are 18" deep is not acceptable. A deed restriction prohibiting property owners from using or mooring motorized vessels in the canal would be more acceptable....A conservation easement could also prohibit the construction of docks and/or the mooring of motorized vessels on the shoreline by the present owners or by potential future owners such as a homeowners association. Based on the Department's assertion that the shallow bay could not accommodate boat traffic related to the development, the Petitioner conducted a survey of existing water depths in the vicinity of the canal. In its October 28, 1992 letter in response to the Department, the Petitioner responded as follows: In general there is sufficient water for shallow draft motor driven vessels, however local knowledge, proper tidal conditions and informed operators would be essential to a safe and non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound. Evidence of prop scars...provides a longlasting record of past damage to the turtle grass beds by (sic) without proper boat handling skills and knowledge. Sizing of boat draft and the requirement that all boats possess hydraulically adjustable outboards units or if inboard drive units then the outdrives must be adjustable is a must. During lower tidal phases, e.g., mean low water, water levels can be expected to drop another foot which would result in water depth ranges of about 17 to 30 inches, definitly (sic) a problem for boats with a hull draft of 18 inches regardless of what angle the drive unit is positioned. Placement of informational signs as well as placement of channel marks would reduce hull and drive unit impacts to the adjacent bay bottom. In concluding the October 28 letter, the Petitioner makes the following recommendations: Recommendations for consideration: Boats limited to hull drafts of 20 inches. All boats required to have adjustable power units. Channel markers required from the Pelican Inlet canal mouth through to a point midway between the islands and Cork Island. This is approximately 2,800 feet west of the canal mouth. These markers would be spaced, approximately 150 feet apart, on-center,. (sic) Thus under southflorida's (sic) winter foggy conditions or after dark ease of marker detection/direction would be a useful aid to navigation. Informational signs should be installed at "entry points" such as the canal mouth, the between-island pass and between the island headlands. These should inform the boater of the environmental sensitivity, the shallow water conditions, the existence of grass beds and requirement of a slow speed, "no wake" zones. Monitoring of bentic (sic) habitats over the first five years would also determine if the above conditions are effective at protecting the coastal habitats. By Department letter of December 17, 1992, the Department again addressed continuing concern with the impact of the project. Paragraph 14 of the letter states: Thank you for the water depth report. As the report states,"...local knowledge, proper tidal conditions and informed operators would be essential to a safe and non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound." Since it would be extremely difficult to provide the Department with reasonable assurance that all three of these conditions will be present during motorized vehicle operations originating on-site, other assurance that impacts will not occur and degrade the Outstanding Florida waterbody must be provided. As previously stated, legally binding agreements regarding draft and other restrictions may be difficult to enforce. Monitoring of an activity's impacts is only useful if there is some recourse to eliminate or reduce any impacts revealed by monitoring. The submitted report reinforces the Department's position that reasonable assurance, beyond that already proposed, must be provided that boat traffic originating from the project's canal will not adversely impact the adjacent shallow waters. Such assurance could include, but would not be limited to, a mnechanical or physical draft restrictor in the canal, an agreement not to seek permits to expand the existing canal, and authorization from the Department of Natural Resources for the proposed channel markers and informational signs. Please note that additional assurance beyond these may also be required. Paragraph 15 of the Department's December 17, letter states: Although not proposed as part of this application, construction of boat docks in the canal is a secondary impact which could be reasonably expected to occur as a result of issuing a permit for the proposed activities. Please provide reasonable assurance that construction of docks in the canal and subsequent mooring of boats will not contribute to a degradation of water quality below State water quality standards in the canal and in the adjacent waters. By letter of February 1, 1993, the Petitioner responded to paragraph 14 of the Department's December 17 letter as follows: The applicant does agree not to seek permits to expand the existing channel and will seek authorization from the Department of Natural Resources for the proposed channel markers and informational signs. In a twenty page letter, dated July 29, 1992, also answering questions of the FDER, Kathleen Parker Greenwood, the applicant stated that he was in agreement as to the placement of restrictions on the draft of boats allowed into and out of the project. This draft limit was set at 24 inches. In addition boats having engines larger that 35 horsepower, would have to have a hydraulic motor/outdrive lift, this to allow adjustments in the depth of propeller operation when operating in or during low water conditions. The applicant may accept the proposal of placement of a draft restrictor at the mouth of the unnamed canal, however would like additional information regarding available designs. Are there any floating types, ones that could be moored permanently at the mouth of the project canal, and rise and fall with the tide, similar in concept to the method used to moor floating docks, i.e., a collar/ring freely moving up and down on a stationary piling? This would allow the setting of a uniform depth regardless of tidal or wind induced depth of water conditions. The Petitioner responded to paragraph 15 of the Department's December 17 letter as follows: The applicant also does not want to degrade existing water quality and agrees to implement both design determined as well as behavioral directing programs to insure that this does not happen. The central issues are: a.) Oil and gas leaks and spills. b.) Leakage of the active chemicals found in anti-fouling bottom paints. c.) "Wolmerized" substances placed in marine piling which, over time, leak into the water column. d.) Shading of shoreline bottom communities due to the installation of docks with associated floating boats. and e.) Physical, one-time, impacts occurring during the installation of pilings and dolphines. The applicant, wishing to minimize potential onetime (sic) as well as cumulative impacts proposes the following: The applicant will attach to documents/lot sales contract a notice that clearly informs the prospective land owner of his/her responsibilities regarding the use and storage, handing and disposal of hazardous wastes, especially boat fuel and oil. This document will warn residents against the discharge overboard of bilge water known to contain fuel/oil mixtures. Each dock will display, in a prominent mannor (sic), a sign with essentially the same warning. The Pelican Inlet property owner(s) will also develop, and have in place and operational, prior to any authorization for the construction of boad (sic) docks, an emergency response program designed to handle in-project fuel spells (sic). This program will include the storage of equipment suitable for emergency containment until, and if necessary, a local response can be made by the appropriate Lee County and/or state officials. Boats will be lifted, when not actively in use, via davits or elevating hoist platforms completely out of the water. This will minimize water/hull contact in the case of anti-fouling paints and bottom coatings. Dock pilings and dolphines will utilize non-toxic structural components, wolmerized and other petroleum based substances will not be allowed to come in contact with the water column. Such Structural members as concrete or PVC or other known non-toxic items will be utilized for all vertical supports. Dock access platforms/boardwalks will be minimized, this in order to reduce potential shading. Consideration will be given to the use of translucent "boards" now on the construction market, this again to further minimize shading. By Department letter of February 15, 1993, the Department addressed continuing and additional concerns related to project impact. Paragraph 9 of the letter states: Regarding the issue of boat access from the canal out to Pine Island Sound, it should be noted that [the Petitioner agent's] access study was done at a time when the water elevation was provided as +1.91' NGVD. The mean high water elevation, as provided, is +1.47' NGVD. Thus is appears that at mean high water, there will be a little more than 5 inches less water that what was present during that study. The mean low water elevation provided is -1.2' NGVD which seems low. However, using this figure, at mean low water there will be 3' less water between the canal and the sound. Using a more reasonable tidal range of approximately 1', there would still be a difference of almost 1.5' between the observed and the low water levels, yielding lowest depths of approximately 3" in segment 1, the unvegetated areas, 10" in segment 2, where turtle grass and shoal grass...exist within the "channel", and 24" or greater out in the sound (along the sampled channel). The Department's own informal depth survey, taken during a full moon low tide, showed water depths of approximately 3" to 6" in segment 1 and 10" to 36" (in the remnant channel) along segment 2. Most importantly, many of the shallow areas in segment 2 showed dense seagrass growth, especially out by the "island headlands", where no channel exists and where prop scarring of the grassbeds already appears to be a major problem. Also, the shallowest area, segment 1, where turbidity would be expected to occur almost every time a boat went through until the channel was prop dredged, was observed to be a highly productive and diverse area, despite the fact that it is unvegetated. Other concerns which this site visit brought up include the potential for increased erosion of shorelines adjacent to the proposed channel, and disturbance of wading bird rookeries or roosting areas along the channel's path. Reasonable assurance that boats crossing the areas between the canal and the sound will not cause violations of water quality, including turbidity and loss of diversity, and loss of non-mitigable wetland resources, seagrass beds, has not been provided. Without this, a permit may still not be issued for this project. By response dated April 11, 1993, the Petitioner responded to the Department's December 17 letter. As to the conflicting high water calculations, the Petitioner offered a further refinement of the figures and noted: Both of the above are relatively minor corrections and any reasonable person would still agree that water depths along the recommended boating channel corridor are, at best, minimal. Only one with local knowledge and possessing common boating skills and sense would be able to navigate the passage without disruption or damage to the bottom habitat. As to the application of a 1' "tidal range," the Petitioner suggests that the Department meant to identify the figure as the range below mean sea level. Citing to 1993 tidal tables, the Petitioner recalculated the water depths and opined that the lowest depth in segment 1 would be 6.7", in segment 2 would be 21.1" and in segment 3 would be over 30". The Petitioner noted that the calculations did not account for neap or spring tides, periods of even lower water conditions. As to the Department's informal depth survey showing water depths of approximately 3" to 6" in segment 1 and 10" to 36" (in the remnant channel) along segment 2, the response states "[t]hese value ranges and conclusion seem reasonable to the applicant. Only after a series of repeated depth measurements have been taken over a variety of tidal and weather conditions (e.g. wind speed and direction) would a more detailed analysis be available. " As to the Department's statement concern for potential increased erosion of shorelines adjacent to the proposed channel, and disturbance of wading bird rookeries or roosting areas along the channel's path, the Petitioner responded as follows: The applicant previously agreed to a mandatory "no wake, slow speed" zone condition within segments I, II, and III out past the western most headlands to a position due north of Cork Island. Signs along the proposed boat corridor would notify boaters of this and other environmentally related restrictions. Disturbances to in place bird rookeries during the nesting season are of concern in southwest Florida. Parents frightened off active nests do greatly decrease the success for fledging of subadult birds. Generally rookeries occur on islands rather than headlands, thus the applicant would committ (sic) to a vigerous (sic) environmental sensitivity education program directed towards project initiated boaters in order to gain citizen appreciation, support and consideration for island areas of nesting wading birds. Part of the on-going monitoring that the applicant commits to would also track near-shore rookeries in the vacinity (sic) of the proposed boat traffic corridor. As to the Department's statement that reasonable assurance that boats crossing the areas between the canal and the sound would not cause violations of water quality had not been provided, the Petitioner responded as follows: The issue and standard, reasonable assurance, is very difficult to meet, however the applicants proposed residential project design is sensitive to on-site and near shore environmental conditions in the following mannor (sic): The applicant is aware that without full cooperation,, support, appreciation and participation by the future project resident boat operators there will defintly (sic) be negative impacts to the tidally related natural resource base. The natural resource setting is the major selling point for prospective owners and its continued health and sustainability is a good business practice Toward these ends the applicant clearly committs (sic) to: The marking and maintaining of a path along which all boat traffic must follow when exiting or entering the near-shore boat corridor lane. Placement and maintaining of a series of informational "No Wake, Slow Speed" signs along the required boat corridor out to just north of Cork Island. A mandatory requirement stating that all resident owned boats, proposed to enter and exit the site will: Be restricted to a maximum hull draft of 20 inches. Will possess adjustable hydraulic motor/shaft outdrive lifts. Predevelopment base-line and post development monitoring of the conditions and any changes, of the benthic habitats along and adjacent (250' on either side of the centerline) to the proposed boat corridor. This monitoring, with quarterly reports, will continue for five consecutive years. By letter dated May 19, 1993, the Department replied in relevant part to the Petitioner's response as follows: ...The second issue is that of navigable access from the canal to Pine Island Sound. The one specific point to be made here is that a proposed draft restriction of 20" to cross an area as shallow as 6.7" (using your figures) at mean low water is not acceptable as this would cause scarring even when a motor was not in use. More general concerns, as previously discussed, involve whether or not placement of no wake signs, deed restrictions requiring outboard lift units and maximum keel drafts, and monitoring to document boating impacts on adjacent resources provide reasonable assurance that impacts will not occur, and if they do occur, they can be offset. Currently, the Department's view is that only by strict legal (e.g., conservation easement) and physical (e.g., pilings at the end of the canal) measures can impacts to the adjacent OFW resources be avoided or minimized. If there is new information concerning this aspect of this project which demonstrates to the Department's satisfaction that there will not be impacts associated with boat traffic or that these impacts can be offset, then please submit such, since this is not considered a closed issue. " By letter dated June 2, 1993, the Petitioner responded to the Department's May 19 letter. Paragraph 2 of the response states: Our client has agreed to put his half of the canal in a conservation easement without limiting the future construction of boat docks and the ability to obtain a permit for dredging maintenance of the canal. Also, he agreed to drive draft restricting pilings at the west end of the canal. In order to do this, our client is trying to get in touch with the owner of the south half of the existing canal. The construction of these pilings will depend on the adjacent lot owner's response. If required the "No Wake" sign will be installed. Deed restrictions requiring outboard lift units and maximum keel drafts will be provided." The adjacent lot owner is not cooperative with the Petitioner. The evidence establishes that permitting of this project will lead to increased boat traffic in the shallow bay, resulting in prop scarring of the bay bottom, erosion of adjacent shoreline, and damage to the wildlife habitat provided therein. The use of a draft restrictor appears to be integral to the Department and to the Petitioner's ability to protect the shallow bay from damage. Although discussed frequently, the Petitioner provided no detailed draft restrictor design until immediately prior to the hearing. The draft restrictor would limit boat passage in or out of the canal mouth unless the water depth was sufficient to prevent harm to the bay bottom. The greater evidence fails to establish that a draft restrictor placed at the opening to the canal into the shallow bay is sufficient to prevent damage to the bay habitat. Placement of a restrictor only at the mouth of the canal provides no protection to the marine resource once boaters exit the canal and are in the bay. The proposed marking of a "channel" which is marginally sufficient to permit access to deeper waters, fails to protect the resource. A draft restrictor at the canal mouth further provides no protection against damage caused by boaters returning from deeper waters who will be able to travel through the shallow bay before perhaps discovering at the canal mouth that the water is too shallow to permit passage over the restrictor. It is reasonable to assume at that point, the bay will have been damaged by the excessive draft. It is also reasonable to assume that the damage would be exacerbated by the boater who, unable to enter the canal, either exits the too shallow bay, or remains until the water rises sufficiently to permit passage over the restrictor. The evidence fails to establish that it is possible to police the users of the bay to provide that due care is used to prevent bay damage. The Petitioner asserts that the bay is already being used and damaged by other boaters. Even if correct, this project must meet the applicable criteria to be permitted. As set forth herein, the criteria are not met. Based on the evidence and on consideration and balancing of the following criteria, the project is not clearly in and is contrary to the public interest: WHETHER THE PROJECT WILL ADVERSELY AFFECT THE PUBLIC HEALTH, SAFETY, OR WELFARE OR THE PROPERTY OF OTHERS-- The Department does not assert that the project will adversely affect the public health, safety, or welfare or the property of others. WHETHER THE PROJECT WILL ADVERSELY AFFECT THE CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS-- The evidence establishes that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Pine Island Sound provides habitat for endangered species including manatees, roseate spoonbills, and wood storks. Additionally, bald eagles have been seen in the project site and Pine Island Sound. The direct loss of wetland habitat resulting from this project will adversely affect the conservation of such species. The Petitioner presented no credible evidence to the contrary. The increased boat traffic which may reasonably be expected to result from award of the permit sought will cause damage to the shallow bay waters and result in harm to the health and function of the bay habitat. WHETHER THE PROJECT WILL ADVERSELY AFFECT NAVIGATION OR THE FLOW OF WATER OR CAUSE HARMFUL EROSION OR SHOALING-- The Notice of Permit Denial suggests a likelihood of turbidity-related water quality violations which could result from unstabilized fill, the adverse floristic impact caused by fill washout into adjacent wetlands, the loss of the filtering benefits provided via the filled wetlands and the adverse impact on wildlife habitat. The evidence establishes that the parties have resolved concerns related to the mitigation of the wetlands lost and impacted by the fill. The Department does not currently assert that the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The greater weight of the evidence establishes that the project will increase travel through the shallow bay to adjacent waters by boaters residing in the project. The prop dredging which will occur in the shallow water will result in harmful erosion of the bay bottom. WHETHER THE PROJECT WILL ADVERSELY AFFECT THE FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY IN THE VICINITY OF THE PROJECT-- The project will likely result in an increase in the number of boaters utilizing the bay and adjacent waters. The turbidity caused by prop dredging in the bay will degrade the water quality and adversely affect the productivity of the impacted marine resource, in turn reducing the fishing values in the vicinity of the project. The Petitioner presented no credible evidence to the contrary. WHETHER THE PROJECT WILL BE OF A TEMPORARY OR PERMANENT NATURE-- The project will cause a permanent alteration to the existing condition of the property and will cause a continuing adverse impact to the affected area. WHETHER THE PROJECT WILL ADVERSELY AFFECT OR WILL ENHANCE SIGNIFICANT HISTORICAL AND ARCHAEOLOGICAL RESOURCES UNDER THE PROVISIONS OF S. 267.061-- The Department does not assert that this project will adversely affect or will enhance significant historical and archaeological resources. THE CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY-- The current condition and relative values of the functions being performed in the affected areas will be adversely affected by the granting of this application. The project will result in an adverse impact to and degradation of an Outstanding Florida Water. The Petitioner presented no credible evidence to the contrary. The evidence establishes that adverse secondary and cumulative impacts will result from permitting this project. Aside from the adverse affect of increased boating related to residents of the development, it is reasonable to expect that similarly-situated applicants could seek permits under these circumstances, resulting in additional boating activity and related damage to an Outstanding Florida Waterbody.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a Final Order denying the application of Pine Island Properties, Ltd., for a water quality certification permit in DEP File No. 362004755. DONE and ORDERED this 28th day of March, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2713 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1. Rejected, unnecessary. 12. Rejected. Evidence is insufficient to determine whether use of bay by public is "regular." Rejected. The map attached to the application identifies 23 homesites. The Notice of Permit Denial references 23 homesites. Petitioner's exhibit 92 is a set of drawings which indicate 24 homesites, however it is unclear as to why the lots were replatted. Rejected as to reference to South Florida Water Management District, irrelevant. Rejected, subordinate. Rejected The greater weight of the evidence establishes that the project is contrary to public interest. Rejected, argumentative, subordinate. Rejected, irrelevant. Rejected, the greater weight of the evidence establishes that this was the first detailed drawing of the draft restrictor. 32-33. Rejected, irrelevant as to whether project meets permitting criteria. 37-38. Rejected, unnecessary. 39-40. Rejected. The evidence fails to establish that filling in the canal is the "only solution" suggested by the Department. 42. Rejected as to assertion that the Department did not question the conclusion or accuracy of the Petitioner's water depth study, contrary to evidence including the Department's site visit. The conclusion to which the Department agreed is that "local knowledge, proper tidal conditions and informed operators would be essential to a safe and non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound." Rejected, contrary to the greater weight of evidence. Rejected, contrary to the greater weight of evidence. The Department noted in correspondence that monitoring would not protect the resource. 46-48. Rejected The easement has not been executed or recorded. Rejected. Contrary to the greater weight of the evidence. Nothing in the correspondence indicates that all other issues have been resolved. Rejected, immaterial. 56. Rejected, irrelevant. The easement has not been executed or recorded. 57-58. Rejected, immaterial. 60-61. Rejected. Contrary to the greater weight of the credible and persuasive evidence. The testimony of the cited witness is not credited. 62. Rejected, immaterial. Respondent The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 15. Rejected, contrary to the greater weight of the evidence. There is no citation to record to support the recalculation. 23. Rejected, contrary to evidence which establishes that the Notice of Permit Denial was issued on March 12, 1992. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Harry Blair, Esquire BLAIR & BLAIR, P.A. 2138-40 Hoople Street Fort Myers, Florida 33901 John L. Chaves, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-9730
Findings Of Fact The School Board of Broward County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Broward County, Florida. As of September, 1980, there were approximately 130,000 students enrolled in the Broward County School System, which makes that system one of the largest in the country. Respondent is required by statute to promulgate rules and regulations that establish attendance zones for grades Kindergarten through 12. During late 1980 and early 1981 the School Board engaged in its annual review of existing attendance boundaries to determine whether changes should be made for the 1981- 82 school year. In performing such reviews and in making necessary recommendations, it is the School Board's policy to consider the following factors: existing overcrowded schools; proper utilization of existing physical facilities; maintaining a unitary school system; student safety; student feeder patterns; transportation costs; establishment of new schools; consolidation of small school attendance areas; and community involvement. The dispute in this proceeding arises from the School Board's rezoning decision as it relates to four north area high schools: Coral Springs; Ely; Pompano Beach; and J. P. Taravella. In reaching its rezoning decision for these four high schools, the School Board was concerned primarily with the existence of overcrowded schools, underutilized physical facilities and the problem of racial composition in the various schools. In order to fully understand the import of the School Board's ultimate decision, and the magnitude of the problem which the Board faced, some historical perspective is necessary. Prior to 1970, the school system in Broward County was operated on a dual, biracial basis, with separate school facilities for black and white students. In 1970 litigation was commenced in Federal District Court which resulted in the School Board being ordered to commence efforts to establish a "unitary" school system. The Board's proposal to close Dillard High School in Fort Lauderdale and Ely High School in Pompano Beach, both of which were predominantly black, was rejected by the Federal Court. Instead, the School Board was ordered to redraw attendance zones in such a fashion as to assure the operation of these schools as racially integrated facilities. Although Ely High School was closed for a time due to inadequate physical facilities, it was later reopened. The Federal District Court subsequently relinquished jurisdiction in the desegregation litigation on July 31, 1979. In an attempt to continue compliance with the Federal Court directive to maintain a "unitary" school system, the School Board has prudently determined, to the maximum extent possible, to maintain approximately the same percentage of minority enrollment in its high schools as existed at the time the Federal Court relinquished jurisdiction in 1979. The School Board's policy in this regard is based on the assumption that the "unitary" status of the school system as it existed in 1979 met with Federal Court approval, as evidenced by the order relinquishing jurisdiction. The dynamic growth of Broward County over the last several years has, however, to some extent complicated the Board's efforts to maintain a "unitary" system. The primary problem in this regard has been a change in the demographic makeup of the school-age population in Broward County. Over the last several years the location of the high-school-age population in Broward County has shifted from the eastern portion of the county to the west. Because the bulk of the high-school-age population has historically resided in the eastern portion of the county, the majority of physical plant facilities had been constructed there. In recent years, however, the western portion of the county has developed rapidly to such an extent that those physical facilities located in that portion of the county are now seriously overcrowded, and the older facilities located in the eastern portion of the county have become "underenrolled," and, therefore, "underutilized." For example, Coral Springs High School, which is located in the western portion of the county, had a student enrollment of 2,168 for the 1976-77 school year; 2,994 students for the 1977-78 school year; 3,406 for the 1978-79 school year; 3,704 for the 1979-80 school year; and, 3,764 students for the 1980-81 school year. The physical plant at Coral Springs High School has a student capacity of 2,283, thereby requiring the School Board to operate Coral Springs High School on double sessions. As a result of overcrowding at Coral Springs High School, the School Board determined to build a new facility, J. P. Taravella High School, which opened in August, 1981. This new high school, with a student capacity of 1,829, opened in August, 1981, with a total enrollment of 1,228 students, all but seven of whom were reassigned from Coral Springs High School. Taravella High opened under its design capacity because the Board determined not to require students to change schools for their senior year, so that Taravella presently serves only grades 9 through 11. As a result of the construction and opening of J. P. Taravella High School, Coral Springs High School is no longer on double session. In addition, the percentage of black students attending Coral Springs High School as the result of the reassignment of students to J. P. Taravella High School will actually rise from six percent during the 1980-81 school year to nine percent during the 1981-82 school year. A complicating factor in the School Board's rezoning decision as it relates to these high schools was the problem of underenrollment at Ely High School and Pompano Beach High School. Ely High School has a physical plant capacity of 1,857, and Pompano Beach High School has a physical plant capacity of 1,921. During the 1979-80 school year, there were 1,172 students enrolled at Ely High School, and 1,793 enrolled at Pompano Beach High School. For the 1980- 81 school year there were 1,430 students enrolled at Ely and 1,634 students enrolled at Pompano Beach High School. During the 1980-81 school year, the student population of Ely High School was 53 percent black, and, under the rule being challenged in this cause, that percentage remained the same for the 1981-82 school year. Blacks comprised 14 percent of the student population at Pompano Beach High School during the 1980-81 school year, and that percentage fell only one percent under the school attendance zones being challenged in this proceeding. As previously indicated the population of the western portion of Broward County has markedly increased over the last several years. Most of the increase in school-age population in the western portion of the county is composed predominantly of white students. The black population in Broward County is concentrated in the eastern portion of Broward County. Consequently, in order to maintain the desired racial composition in the county schools, relieve overcrowded conditions in some of its schools, and, at the same time efficiently utilize the physical facilities of all its schools, it became necessary for the Board to make some extremely difficult policy choices. The choice ultimately made by the Board is reflected in the rule here being challenged. Petitioners Barton, Mascolo and Tripodi are each residents of the Sunflower-Heathgate section of the City of Tamarac, with children who, under the rule here in dispute, are assigned to Ely High School. Ely High School is located approximately 10-12 miles from the City of Tamarac, while the recently opened J. P. Taravella High School is approximately one and one-half to two miles away. Petitioners object to their children being assigned to Ely High School when they could more conveniently attend the newly opened J. P. Taravella High School, which is located much closer to their residences. Petitioners object to their children being subjected to a lengthy bus ride twice daily to and from Ely High School, and further assert that the children are unable to participate in after-school extracurricular activities because of the distances from their homes to their assigned schools. Although the School Board furnishes transportation in the form of an "activity bus," Petitioners assert that this mode of transportation is at best unreliable, and is, therefore, an unacceptable substitute for what they consider a more appropriate school assignment. The record reflects that the Tamarac area in which all Petitioners' residences are located has been zoned to attend Ely High School since approximately 1977. Consequently, the rule being challenged in this proceeding does not change the school assignments for these families from that which has been in existence for several years. However, J. P. Taravella High School has been in the planning stages for several years, and Petitioners' families had anticipated that upon completion of the new high school their children would no longer have to be bused to attend high school. In the process of adopting the rule challenged in this proceeding the Board conducted a series of public meetings which were well publicized and, as far as can be determined from the record, properly advertised in accordance with Chapter 120, Florida Statutes. Petitioners submitted no evidence to indicate either any serious insufficiency in the notice procedures utilized by the Board, or any prejudice suffered by Petitioners in this regard. Finally, prior to adopting the challenged rule, the Board prepared an economic impact statement that, on its face, addressed all the requirements of Section 120.54, Florida Statutes. Although Petitioners disagree with the conclusions contained in the statute, there is no evidence in this record to ever suggest that the methodology used or the conclusions reached in the statement are in any way inaccurate.
The Issue Is Respondent school teacher guilty of violating Rule 6B-1.006(3), Florida Administrative Code, by failure to make reasonable effort to protect students from conditions harmful to their physical safety? Is Respondent guilty of violating Section 231.36(1)(a), Florida Statutes, by misconduct in office and/or willful neglect of duty?
Findings Of Fact Respondent, Kelly L. Bradley, Florida Teaching Certificate 768569 (expiration date June 30, 2000), is a certificated teacher in the State of Florida and held a teaching certificate in 1998-1999. She taught at Lola M. Culver Elementary School during the 1998-1999 school year and was an employee of Petitioner Duval County School Board. Respondent had been employed by Petitioner from January 1996 through October 1996, as a substitute teacher at several elementary schools and was employed full time at Lola Culver commencing October 1996, teaching emotionally handicapped students. This was her first full-time job as a teacher. She received satisfactory evaluations with favorable comments for each of her three years at Lola Culver. She has no record of prior discipline. During most of the 1998-1999 school year, Respondent and Kristy L. James, another certificated teacher, were co-sponsors of the School Safety Patrol at Lola Culver. Respondent volunteered to replace another co-sponsor who left in mid-year. This was her first experience as a Safety Patrol co-sponsor. A "reward" trip near the end of each school year was traditional for Lola Culver's Safety Patrol members. Ms. James had been a co-sponsor of the Safety Patrol for the 1996-1997, 1997-1998, and 1998-1999 school years, but neither she nor Respondent had received any significant instruction in the duties and responsibilities of sponsors. Near the end of the 1998-1999 school year, Ms. James and Respondent planned an overnight trip to Orlando for Safety Patrol members for June 4-5, 1999, a Friday and a Saturday. Ms. James exclusively handled the paperwork for approval of the June 4-5, 1999, field trip by Lola Culver's current principal, Carolyn Davis. She also exclusively handled the permission slips and medical authorizations signed by parents and all arrangements for "chaperones." Swimming had been on the agenda sent home by Ms. James and approved by the prior principal in each of the previous school years. Swimming was also on the 1999 agenda, which instructed students to pack a swimsuit. For the 1999 trip, Ms. James also sent another document, outlining the cost of the field trip for students and soliciting chaperones, and permission slips/medical releases to all the children's parents. Only the agenda mentioned swimming. The permission slip did not expressly mention swimming or solicit information about a child's ability to swim. It solicited only health information and authority to treat in an emergency. Eight fifth grade students (boys and girls) went on the trip, including Litoria Gibson, a non-swimmer, who ultimately drowned while on the field trip. Nowhere on the signed permission slip returned to Ms. James did Litoria's parents state that she could not swim or should not swim. Unbeknownst to anyone concerned, Litoria's mother had instructed Litoria "not to get in the water" during the field trip.1 Respondent and Ms. James went on the trip as co- sponsors and as chaperones. Respondent invited a personal friend and substitute teacher, Eric Lee, to go on the trip as a chaperone. Ms. James' husband, Joey, came along in the same capacity, and two parents, Gail Brown and Hazel Morningstar, also went on the trip. Hazel Morningstar testified that she had considered herself present on the trip only to watch her own son and, based on an oral promise to Rita Whorten's parents, to watch Rita Whorten. In a conversation during the planning stages, Ms. James stated that Rita Whorten would be "with" Ms. Morningstar and her son. At no time material did Ms. Morningstar affirmatively notify anyone she would not act as a group chaperone. In fact, she considered herself to be a chaperone. Gail Brown is the mother of Marcus Brown, one of the Safety Patrol students. Ms. Brown testified that she only went on the trip because she does not allow her son to go on trips involving water by himself, even though Marcus knows how to swim. She further testified that she did not feel any chaperoning responsibility toward any child but her own. However, she knew the teachers would assume that she was going to chaperone all the children, and she never affirmatively notified anyone that she would not act as a group chaperone. The group traveled via a school bus, driven by Petitioner's approved bus driver, Patricia Benton. Ms. Benton was paid for driving the bus, but personally paid for her teenage son, whom she brought along on the trip. Ms. James had asked Ms. Benton to drive the bus, and Ms. Benton's son's inclusion in the trip was in the nature of a "perk" for Ms. Benton. Ms. Benton's son was never considered either a responsible adult or a chaperone. Ms. Benton had accompanied Ms. James and the Safety Patrol on a similar field trip at the end of the 1997-1998 school year and had participated in watching over the children at that time. However, herein, Ms. Benton testified that on the 1999 trip she considered herself only along to drive the bus and watch over her own son. Indeed, neither Ms. James nor Respondent counted Ms. Benton as a "chaperone" in calculating the "one chaperone per every ten children" that they understood to be Petitioner's requirement for field trips. Nonetheless, both teachers considered Ms. Benton to be another responsible adult. Ms. Benton admitted that at times on this trip she was prepared, if necessary, to discipline any disrespectful children. Neither teacher inquired of Ms. Benton if she could or would swim. Respondent and Ms. James considered themselves, Joey James, Mr. Lee, Ms. Brown, and Ms. Morningstar to be chaperones. Neither teacher ever inquired of Mr. Lee, Ms. Brown, or Ms. Morningstar whether they could or would swim. This was Respondent's first overnight field trip. As teachers and Safety Patrol co-sponsors, Respondent and Ms. James regarded themselves as jointly responsible and in charge. Everyone else appears to have looked to Ms. James for leadership. The bus departed from Lola Culver Elementary School at 7:00 a.m., Friday, June 4, 1999. After arriving in Orlando, the group spent most of the day at Sea World. While the group was at Sea World, Respondent and Ms. James assigned responsibility for specific children to specific adults, except for the bus driver, Ms. Benton. No adult protested the assignments. At Sea World, Respondent and Eric Lee were responsible for Litoria Gibson and Makia Hicks. These assignments were essentially designed to keep everyone together and to keep the children under supervision in the amusement park, but they were not intended to last beyond the Sea World portion of the trip. However, no reassignment of responsibility for any child occurred after the group departed Sea World. In the late afternoon, the group was bused to Howard Johnson's South International, a motel. After they checked in, the students were allowed to go swimming in the motel pool. Upon arrival at the motel at approximately 5:45 p.m., room keys were distributed, and it was agreed that adults and children would meet by Ms. James' room, which fronted on the pool area. The children were instructed not to go to the pool until the adults were ready. The pool at the motel was a very large one located in an interior courtyard. The water was 3.5 feet deep at the shallow end and 5.5 feet deep at the deep end. No lifeguard was provided. Nonetheless, the pool had been used safely for the 1998 Safety Patrol field trip, and Ms. James and Ms. Benton were familiar with the motel layout and the pool. Ms. James considered herself a good swimmer, having been a swimmer since childhood. She was comfortable around water. Respondent was an experienced swimmer and athlete. She had learned to swim in early childhood, had had formal lessons during high school, and had done a lot of pool training in connection with playing college volleyball. She had continued to swim regularly in her adult life. She was trained in CPR. Some of the adults, including Respondent, and all of the children met as agreed and proceeded to the pool area. Prior to going to the pool, Respondent briefed all the children on not running or wrestling in the pool and pool area. Initially, Ms. James remained in her room to make a telephone report to Lola Culver's principal, Carolyn Davis. Joey James and Ms. Morningstar arrived at the pool dressed to swim. Litoria Gibson went to poolside wearing a red jumpsuit which would not be considered an unusual item for a child to wear to go swimming. The children entered the pool for the first time at approximately 6:00 p.m., under the direct supervision of Joey James and Ms. Morningstar, who got into the pool's shallow end with some of them. Ms. Morningstar asked who could not swim. Litoria Gibson and another girl raised their hands. Litoria said, "I can't swim." She never volunteered that she was not allowed in the water. Ms. Morningstar told the two girls that they should stay in the shallow end of the pool. Litoria Gibson was tall for her age, approximately the same height as Ms. Morningstar. Ms. Morningstar invited Litoria into the pool and spent 15-30 minutes with her in the pool's shallow end. They squatted to get wet and acclimated to the water. Ms. Morningstar showed Litoria how to stand so that the water only reached her chest and how to doggie paddle and told Litoria that if she got in trouble she could lie flat on her back and float. Litoria then felt comfortable in the water and, giggling happily, entered into dunking games with the other children. When Ms. Morningstar left the pool for the sauna, she warned Litoria to stay in the shallow end of the pool, only chest-high in the water, or get out of the pool altogether. Ms. Morningstar assumed that all the parents' respective permission slips would have alerted the teachers as to which children could or could not swim, so she did not tell anyone which students could not swim. At various times before 7:30 p.m., Joey James and Ms. Morningstar disciplined students by taking away water toys and calming rowdy behavior. Eric Lee arrived at the pool dressed to swim and able to swim shortly after the children entered the pool, but he stayed on the sidelines at the deep end and would not enter the pool. Respondent arrived at the pool dressed to swim and swam a little while Ms. Morningstar was in the shallow end and Joey James was in the deep end. Makia Hicks got into the pool with Respondent and said "Can you stand in here with me?" Respondent questioned Makia, and determining that Makia indeed could not swim, Respondent told her, "Well, you can come in here and I'll show you how to kick your feet." Respondent did not overhear the similar conversation between Litoria and Ms. Morningstar. (See Finding of Facts 33- 34). Later, Respondent got out of the pool and took Makia and Jessica Hayes to the hot tub. She made sure Makia got out of the pool at that time. Respondent, Makia, and Jessica then returned to the pool and were playing around. Ms. James, dressed to swim, arrived at the pool about the time Ms. Morningstar first went to the sauna. Mesdames Brown and Benton arrived poolside sometime after everyone else and remained there for most of the time until 7:30 p.m., in adjoining chairs and approximately midway between the deep and shallow ends of the pool. During this period, Ms. Benton made several trips to and from the jacuzzi and Ms. Brown made at least one trip to and from her room. Neither woman was dressed to swim. By their own accounts, both women were adequate but not trained swimmers, and neither of them intended to swim. When Ms. James arrived poolside, Respondent got out of the pool and she and Ms. James chatted in adjoining poolside chairs on the side opposite from Mesdames Brown and Benton. Makia sat on the edge of the pool with her feet in the water. Fifteen to 20 minutes after arriving poolside, Ms. Brown overheard that Litoria and one other child (she was not sure which child) could not swim. When Ms. Brown heard this, Litoria was already "walking the wall" (moving via her hands on the lip of the pool wall) into the deep end of the pool. Ms. Brown asked Litoria if she could swim and when Litoria said she could not swim, Ms. Brown ordered Litoria back to the shallow end of the pool. At least twice more before 7:30 p.m., Ms. Brown ordered Litoria back to the shallow end from the deep end, but Ms. Brown did not alert anyone else that Litoria was venturing into the deep end. She also assumed that Litoria's parents had informed the teachers that Litoria could not swim, so she did not tell anyone that information either. At approximately 6:30 p.m., Ms. Benton overheard or otherwise figured out that Litoria could not swim. She also assumed that Ms. James and Respondent knew Litoria could not swim and therefore, she did not mention it to them. After being poolside for awhile, Ms. James and Respondent went to Ms. James's room to telephone for pizza for everyone's dinner. Where, precisely, each of the other adults were during this brief period of time is in some dispute, and it may be that Ms. James and/or Respondent came and went from Ms. James's room more than once. Ms. James and Respondent did not specifically designate any adult to be in charge at the pool in their absence(s). Nonetheless, by all accounts, Mesdames Brown and Benton were fully dressed in poolside chairs most of this time and Joey James, Mr. Lee, and Ms. Morningstar were in and around the pool most of this period of time. Later, when it was anticipated that the pizza delivery man would be arriving, Ms. James and Respondent again left the poolside together. As they walked past Ms. Brown and Ms. Benton, Ms. James said, "We're going for the pizza." Neither Ms. James nor Respondent gave any specific instructions concerning the students. Ms. Brown and Ms. Benton acknowledged that they had heard Ms. James say that both teachers were leaving the pool area. Ms. James and Respondent left the pool area and entered a motel corridor off a door leading to the pool area. The children and pool area could not be adequately observed and monitored from this motel corridor. Joey James and Mr. Lee arrived in the corridor simultaneously with the two teachers. Ms. James gave the men instructions to go to the bus and retrieve a cooler of soft drinks and take the cooler to the picnic area at the far end of the pool. Ms. Morningstar arrived in the corridor in time to hear the foregoing instructions concerning the cooler. This meant there were now five adults not watching the children. Respondent then gave Ms. Morningstar enough specially-printed T-shirts for all members of the party, told her the T-shirts would be distributed during dinner, and asked her to take the T-shirts to the picnic area and set up for dinner. Respondent also asked Ms. Morningstar to "check on the kids."2 Ms. James and Respondent assumed the foregoing instruction meant that a third adult (Morningstar) would then be joining the two adults (Brown and Benton) already poolside to watch over and protect the eight students. Ms. Morningstar immediately went to the pool area, carrying the T-shirts. Ms. James, who had the money to pay the delivery man, and Respondent immediately went up an interior hallway toward the hotel lobby to await the pizza delivery man. The six pizzas Ms. James had ordered would require two people to carry them all, but additionally, Respondent wanted to talk to Ms. James alone because she had a concern and planned to defer to Ms. James's field trip experience as a long-time Safety Patrol sponsor.3 On her way to the picnic area, Ms. Morningstar found all the children, including Litoria, in the deep end of the pool. Most were playing dunking games. Apparently, Litoria sometimes participated in dunking, but when Ms. Morningstar spotted her, Litoria was holding onto the pool wall. She was blowing bubbles in the water between her outstretched arms and occasionally pushing off a few inches, floating on her face, and then grabbing the wall again. Ms. Morningstar said, "Litoria, are you sure you feel comfortable? Because you don't know how to swim." Litoria replied, "No, ma'am, I feel comfortable. I'm here with everybody and everybody's beside me." Ms. Morningstar did not consider Litoria in danger as close to the wall as she was, with children near her in the pool, and with Ms. Brown, Ms. Benton, and other adult strangers nearby. She proceeded to the picnic area, passing Brown and Benton in their chairs, and telling them she was going to set up for pizza. At about this time, a few minutes before 7:30 p.m., Ms. Brown was approached by a little girl who wanted to get her pool shoes from her room. Ms. Brown told the child to get her key and she would go with her so that the child would not be alone in a motel room. As they rounded a corner of the deep end of the pool, Ms. Brown spotted another little girl clinging to the side and sobbing, "She tried to drown me!" Then there was a clamor from the other children and Ms. Brown noticed that Litoria, in her red outfit, was floating face down, only inches from the edge of the pool. Just then, Ms. Benton approached and also saw Litoria. Both women screamed. Ms. Morningstar and Mr. Lee, who were in the picnic area, heard the screams and ran to the deep end of the pool to help. With the help of two of the boys and Eric Lee, Ms. Brown hauled Litoria out of the pool. The adults peeled away from Litoria's face a plastic mask designed to cover the wearer's eyes and nose, but not the mouth. The face mask's breathing tube had been lost. Blood came profusely from Litoria's mouth.4 The teachers were notified where they were waiting for pizza in the motel lobby. They returned immediately to render aid. A qualified bystander rendered CPR. Medical attention was summoned via "911." Although Litoria's pulse and breath sounds were revived at poolside, she ultimately died of drowning Christine Arab, General Director of Human Resources for the School Board, holds Bachelor's and Master's Degrees in Elementary Education, and is a doctoral student in curriculum and education. She has been a certified elementary and exceptional student education classroom teacher. In her opinion, Respondent did not take reasonable efforts to protect her students in that she failed to determine which children could and could not swim and left the pool area without making sure that at least one of the adults was prepared to be in the pool with the children, was able to rescue the children, and had agreed to accept the responsibility to oversee and rescue the children from the water if necessary. It was the absence of these precautions by Respondent that mattered to Ms. Arab, not the length of time that Respondent was absent from poolside. Ms. Arab stated, concerning the other adults' behavior on the field trip that, "[G]iven what they each understood their role to be or commitment to be - I think there's a lot of blame to go around . . .." She also described various acts and omissions of the other adults as either reasonable or unreasonable. However, I do not assign the weight to her personal opinions on these subjects that I do to her professional opinion as an educator concerning Respondent's duty of supervision and effectiveness as a teacher. There is no School Board policy defining the duties of "chaperones." The School Board did not prove that it had any specific written policy against swimming on field trips. Ms. Arab conceded that if Ms. James's prior principal had approved swimming for the previous year's field trip and the current principal, Ms. Davis, had not disapproved swimming in 1999, there was no way the teachers could have divined there was any "no swimming on field trips" policy. Principal Davis was disciplined by a 21-day suspension without pay for her flawed oversight of the field trip. This is a very severe penalty for an administrator. Ms. Arab had input into the School Board's decision to prosecute this case. In her opinion, the severity of a termination recommendation against Respondent was warranted because Respondent's flawed oversight of the field trip itself was such that the public and the School Board could have no future confidence in Respondent. Ms. Arab felt the only way the School Board could trust Respondent henceforth would be under the closest supervision and that would be ineffective teaching in the School system. However, Ms. Arab also conceded that had Litoria not drowned, Respondent's failures would not have risen to the level of a terminable offense.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of a violation of Rule 6B-1.006(3), Florida Administrative Code, through her failure to make reasonable effort to protect students from conditions harmful to their physical safety, and of a violation of Section 231.36(1)(a), Florida Statutes, by misconduct in office, suspending her without pay for six months, and requiring her to repeat her supervised one year of beginning teacher training upon her return to the classroom. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 27th day of June, 2000.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to these proceedings, respondent was employed as a distributive education teacher at Coconut Creek High School. Respondent was also a sponsor or teacher coordinator for DECA -- Distributive Education Clubs of America. As such he was appointed, with the approval of the School's principal, as a chaperone for the Coconut Creek High School students attending the DECA national convention in Chicago, Illinois, from May 8, 1976, through May 13, 1976. Prior to attending said national convention, respondent was aware of those provisions of the Coconut Creek High School teachers' handbook pertaining to chaperones' and students' responsibilities on field trips. All distributive education teachers and students who were to attend the national conference in Chicago had a meeting on April 27, 1976, to discuss the rules and regulations which were to be followed at the conference. While the curfew hour set in the teachers' handbook for students on field trips was midnight, the curfew at the national convention was set at 2:00 A.M. and this curfew was adopted by respondent for his students. Among the students for whom respondent had responsibility as a chaperone were four females who were assigned a hotel room located across from respondent's room. At curfew time each evening, it was respondent's practice to check in on his students and then retire to his room, leaving his door ajar about six inches so as to be able to hear any disturbances. On the morning in question, May 13, 1976, which followed the last night of the convention, respondent started his "rounds" to check on his students at approximately 1:45 a.m. Assured that his students were all in their respective rooms, at about 2:15 a.m. respondent went back to his hotel room and went to sleep, rather than attending a party or gathering which other teacher/chaperones attended. At approximately 4:00 a.m., respondent was awakened by noises in the hall. He got up to see where the noises were coming from and found several teacher/chaperones from Broward County standing in the door way to his female students' room. It appeared to respondent and one of the female students who testified at the hearing that at least some of these teacher/chaperones had been drinking alcoholic beverages. Respondent considered some of these persons to be his immediate supervisors inasmuch as they were employed at the county and state levels. In order to ascertain what was happening, respondent dressed and went over to the girls' room. He took no affirmative action to remove the teacher/chaperones from the room. He sat on the couch in the room and fell asleep. When he awoke between 5:00 and 6:00 a.m., the other chaperones had gone and he then left and returned to his room. Prior to leaving for the convention, respondent instructed his students not to bring or consume any alcoholic beverages at the convention. While in the girls' room on the morning in question, respondent noticed a beer can in the trash receptacle. Having never seen any of his students consume alcoholic beverages at the convention and realizing that the other chaperones had been drinking on the morning in question, respondent did not make inquiry of his students as to the beer can. There was evidence that one of respondent's female students had consumed alcoholic beverages in her room while attending the convention. However, there was no evidence that respondent or any other chaperone attending the convention had any knowledge of or reason to suspect that this occurred. No complaints were received by the school principal or the administration from either parents or students concerning activities at the convention.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent be immediately reinstated to his former position and that his back salary be paid to him for the reason that the charges against him were not sustained by the evidence. Respectfully submitted and entered this 16th day of September, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: School Board of Broward County 1327 S.W. 4th street Ft. Lauderdale, Florida Mr. Leonard Fleet 4001 Hollywood Boulevard . Hollywood, Florida 33021 Mr. Ronald G. Meyer 341 Plant Avenue Tampa, Florida 33606
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Banana Island is separated by marshland into areas known as Islands No. 9 and No. 10. The respondent Association presently owns and operates on Island No. 10 a dock and a dive shop which sells snacks and compressed air to divers who use the nearby springs. The purpose of the proposed boardwalk is to connect the existing dock facilities on Island No. 10 to the upland area on Island No. 9, a portion of which will be used as a picnic area for boaters, swimmers and divers. The boardwalk is to be 220 feet long and six feet wide. The immediate area upon which the boardwalk is to be constructed is not utilized by the manatee because of its shallow depth. While the boardwalk would result in the shading of approximately 1,000 feet of marshland, this amount is too insignificant to affect the manatee. There are approximately 1,000 manatee in the United States, and the manatee has been designated as an endangered species under Federal and Florida law. The manatee exists throughout the southeastern portion of the United States. They inhabit areas off Texas, Louisiana, Florida, on up to North Carolina, though it is unusual to see them north of Brunswick, Georgia. The Kings Bay area of Crystal River, primarily around the Springs, and the area of Homosassa Springs provides a winter home for approximately 110 manatee, or about ten percent of the entire manatee population. The manatee come to the Kings Bay area in the winter months from mid-November through March 31st due to the warmer temperatures of the water around the springs. There is only occasional use of the springs area by the manatee between March 31st and November 15th. The numbers of manatee coming into the Kings Bay area has increased since 1971. This increase could be due to better observation techniques or to the reduction of other suitable habitats for the manatee. At least seventy percent of the population return each year. This year, seven new calves were born in the area. During the cooler months, approximately forty- five percent of the manatee can be found within five-eights of a mile of the main spring in Kings Bay. The proposed boardwalk is to be located approximately 150 feet from the main springs. No manatees have been sighted within twenty-five yards of the boardwalk site. The existing dock is located about seventy feet from the main springs. Manatees have been sighted near the end of this dock, which was built in 1971. The general area surrounding the site of the proposed boardwalk, primarily the springs area, is used heavily by boaters, swimmers and divers. Observations during a nonconsecutive seven-day period in late November and early December noted some 603 boats using the general area of Kings Bay, some 250 divers around the springs area and over 430 top-water observers of the manatee. These numbers would lessen during the Spring and pick up again during the Summer and latter part of the Fall months. On January 1, 1979, some fifty-two boats were served within the main springs area. In Citrus County alone, there are over 5,700 registered pleasure and commercial boats. When cruising, the manatee generally travels at a rate of speed of two to three miles per hour. When moving out of the way of a boat, the manatee can move at about eight to nine miles per hour. When confronted by an oncoming boat, the manatee either immediately submerges or turns to the right. Many manatee in the Kings Bay area have propeller scars on their bodies. A few of the manatee, generally the juvenile manatee, appear to enjoy and seek contact and association with the divers. The majority move away and seek to avoid the divers. During periods of heavier boat traffic around the springs, the manatee generally move out into the colder water adjacent to the springs. Continued disruptive activity such as motor sounds, fast moving boats, heavy diver or boat traffic, and harassment from divers and swimmers can prove to be dangerous to the manatee. Such activity can result in a failure to mate and reproduce, body wounds, and a forcing of the manatee out into colder waters, thus disrupting normal feeding patterns and behavior. In 1978, the Florida legislature passed the "Florida Manatee Sanctuary Act," declaring the State of Florida to be a refuge and sanctuary for the manatee. Section 370.12(2), 1978 Supplement to Florida Statutes. This Act directed the Department of Natural Resources to adopt rules regulating the operation and speed of motorboat traffic between the dates of November 15th and March 31st in the Kings Bay area of Crystal River, as well as in other portions of the waters of the State. At the time of the administrative hearing in this cause, the Department of Natural Resources was in the process of adopting Chapter 16N-22 in implementation of the Florida Manatee Sanctuary Act. These proposed rules establish slow speed zones, idle speed zones and prohibited zones for motorboats in Citrus County. The area in dispute herein is designated as an idle speed zone, defined as the minimum speed that will maintain the safe steerageway of a motorboat. The federal government is expected to adopt all state regulations pertaining to the protection of the manatee. It was the opinion of both of the witnesses having knowledge and expertise regarding the activities and behavior patterns of the manatee that any development which attracts and promotes human activity in the springs area could possibly have a deleterious effect upon the manatee. As noted above, the dock and dive shop have been in existence and operation since 1971. Boating and diving activity has increased since that time. The respondent Association has no objection to and is in favor of the proposed new boat speed regulations. While a few boats can now tie up to the existing dock, boats would not be able to tie up to the boardwalk. Trash receptacles are planned for Island No. 9. If Banana Island No. 9 were accessible via the proposed boardwalk for recreational and/or picnic activities, it is entirely possible that there would be less boating activity around the immediate area of the main springs. The majority of the boats around the springs are small boats which the divers and manatee observers rent for those purposes. It is possible that larger boats could be utilized to provide transportation for swimmers and divers to and from the area, thus reducing the number of boats in the immediate area of the springs. During the hearing, the applicant offered and stated its willingness to close down the boardwalk during the winter months should future studies or surveys illustrate that the manatee is being harmed therefrom. The successful and profitable operation of the respondent's boating and diving enterprises depends upon the continued habitation of the area by the manatee.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent's application for a permit to construct and maintain a boardwalk be granted, subject to the stipulations proposed in the permit appraisal relating to the opening and the maintenance of vegetation. Respectfully submitted and entered this 15th day of March, 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman Rogers, Towers, Bailey, Jones and Gay Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Baya M. Harrison Mark J. Proctor Ausley, McMullen, McGehee, Assistant Department Attorney Carothers and Proctor 202 Blount Street Post Office Box 391 Crown Building Tallahassee, Florida 32302 Tallahassee, Florida 32304
