Findings Of Fact The record reflects that notice was given to Respondent at its business address. The hearing was recessed for over 15 minutes to give Respondent added time to appear. Respondent has not contacted the Division as of the date of this Order. Yellow Whirleybird Helistop was issued an airport license renewal by the Department of Transportation, on March 11, 1987, for a private helistop located at latitude 30 degrees 11' 24" and longitude 85 degrees 49' 52" in Bay County, Panama City Beach, Florida. The service provided by this helistop is helicopter rides and it is located on property owned by Bay County, Florida. The City of Panama City Beach enacted a land use ordinance, No. 316, effective June 11, 1987, prohibiting the operation of sightseeing rotocraft "within the area bounded on the north by the southerly right-of-way U.S. Highway 98, alternate (Front Beach Road) and south Thomas Drive, and east and west by the easterly and westerly boundaries of the city, ---". The heliport in question is located within the area described above. The Office of the County Attorneys, Bay County, by letter dated July 22, 1987, notified Yellow Whirleybird Heli- copter, Inc. that the concession agreement it had with the county was terminated and gave Yellow Whirleybird 30 days to vacate the premises. The Department of Transportation, by letter dated June 25, 1987, notified Yellow Whirleybird Helistop that its airport license was being revoked because of lack of proper zoning at the site, due to Panama City Beach Ordinance No. 316. In addition, suitable local zoning and ownership or lease of the airport site are requirements of site approval and license by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the airport license located at latitude 30 degrees 11' 24" and longitude 85 degrees 49' 52" in Panama City Beach, Florida, issued to Whirleybird Helistop, Respondent, for a private helistop be revoked because it does not currently meet the zoning and lease requirements of the statute and rule. DONE AND ORDERED this 22nd day of December, 1987, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1987. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon-Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Mr. Ron Brown Whirleybird Helistop 430 Lyndell Panama City Beach, Florida 32407 Douglas J. Sale, Esquire City Attorney 110 South Arnold Road Panama City Beach, Florida 32407 Kay N. Henderson, P.E., Secretary Department of Transportation Haydon-Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact As the governing authority of the Canaveral Port District, Respondent is responsible for the operation of Port Canaveral. Respondent is headed by a Board of Commissioners, which consists of five elected officials. In descending order of authority, the next highest-ranking officials are the Executive Director (or Port Director), Deputy Executive Director (or Deputy Port Director), and six directors who are responsible for such things as operations and marketing. At all material times, Joe Lapolla served as the Deputy Executive Director and Director of Engineering. Respondent was organized pursuant to Chapter 28922, Laws of Florida, Special Acts of 1953. Article XVII of the Special Act provides: Section 1. No contract shall be let by the Port Authority for any construction, improvement, repair, or building . . . when the amount to be paid shall exceed $10,000 unless notice thereof shall be advertised at least three (3) times calling for bids upon the work to be done or the goods, supplies or materials toe be purchased by the Port Authority, and in each case the bid of the lowest responsible bidder shall be accepted, unless the Port Authority may, in its discretion, reject all bids. * * * On or about January 26, 1990, Respondent issued the "Contract Manual for Construction of Cruise Terminal #5 Building" ("ITB"). The ITB informs bidders: Sealed proposals will be received by the undersigned at the office of the Canaveral, Port Authority, 200 George King Blvd., P.O. Box 267, Cape Canaveral, Florida 32920 for construction of Cruise Terminal #5 Building and Site Work until 2:00 o'clock p.m., February 19, 1990 at which time and place they will be publicly opened and read aloud. * * * The Owner reserves the right to reject any or all proposals with or without cause, to waive technical errors and informalities, and to accept the proposal which in his judgement best serves the Owner. The Canaveral Port Authority By: Barbara Smith The ITB states: The award of the contract, if it is awarded, will be to the lowest sum of all base bid items by a responsible bidder whose qualifications indicate the award will be to the best interest of the Owner and chose proposal shall comply with the requirements of the Contract Documents and does cot exceed the funds available. . . . In no case will the award be made until all necessary investigations have been made into the responsibility of the low bidders and the Owner is satisfied that the bidders are qualified to do the work . ITB, P. IB-3. The above-quoted announcement was duly published in the Florida Today Newspaper on January 15, 22p and 26, 1990. The advertisement timely informed all bidders of the contents of an addendum to the ITB, changing the bid opening date to 2:00 p.m. on February 16, 1990, rather than February 19 Other addenda to the ITB were issued. One was issued as late as the morning of the bid opening. Seven contractors submitted bids on the Cruise Terminal project. In addition to Petitioner and Intervenor, the other bidders were Miorelli, Mark Arnold, Foley, Metric, and Butler. The persons delivering the bids for Petitioner, Intervenor, Miorelli, Mark Arnold, and Butler testified at the hearing. The Metric representative testified by deposition. Each bidder representative arrived at Respondent's office building at which the bids were to be opened well in advance of 2:00 p.m. Each representative entered the building through the front door, which leads to a lobby in which a receptionist sits. The receptionist informed five of the six bidder representatives that they should deliver their bids to her in the lobby and, at least four of the six representatives, that the lobby clock was the official clock. The same or another receptionist told the Mark Arnold representative that the clock in the Commission Room was the official clock. The Commission Room, which is where the bids were opened, is located elsewhere in the building. At the time in question, there was no significant discrepancy between the clocks in the lobby and Commission Room. Unlike the other bidder representatives, who synchronized their watches with the lobby clock, the Mark Arnold representative synchronized his watch with the Commission Room clock. The Mark Arnold and Miorelli representatives testified that they both delivered their bids at 1:59:50 p.m. As noted below, the two bids were submitted almost simultaneously, so there is no significant difference between the two clocks. After synchronizing their watches, the bidder representatives contacted their offices, by car phonies or other means, to get updated bid amounts and subcontractors. The last few minutes before submitting a bid is frenetic because subcontractors are calling in last-minute bids to the contractor, which must determine the best prices and relay the updated information to the bidder representative at the site of the bid opening. The representative must then complete the bid forms with the bid prices and names of subcontractors. At about 1:55 p.m., Mr. Lapolla and Barbara Smith, who is Assistant Secretary to the Board of Commissioners, were in the Commission Room preparing for the bid opening. Ms. Smith had brought with her bid proposals that had already been delivered to the receptionist in the lobby. Mr. Lapolla was in charge of the bid opening in his capacity as Director of Engineering, not Deputy Executive Director. By 1:56 or 1:57 p.m., Mr. Lapolla and Ms. Smith were joined by Bud McMann, who is Respondent's Director of Operations. They sat together at a table in the front of the Commission Room with the spectators' seats occupied by bidder representatives and other interested persons. At 1:57 p.m., the Butler representative delivered her bid proposal to the table in the Commission Room. Within a few seconds after receiving the Butler bid, Mr. Lapolla checked on the bid proposals that had already been delivered to the table. Each proposal consisted of a set of two envelopes, which, although sealed, bore the name of the bidder on the outside of the envelopes. He saw proposals from only three bidders Knowing that a large number of bidders had picked up copies of the ITB, Mr. Lapolla was disappointed by the low number of proposals that he had received. The three proposals were from bidders with which he was unfamiliar. In particular, he was expecting still to receive proposals from Miorelli and Metric. Metric was the contractor that had won a contract for construction of the waterside portion of the Cruise Terminal. In fact, the Metric bid proposal was one of the proposals already received. As set forth below, the proposals of Intervenor, Mark Arnold, Miorelli, and Petitioner were, in that order, the last proposals to be delivered to the table. Most likely, in the confusion of the final two to three minutes before the opening of the first bid, Mr. Lapolla hastily looked at the envelopes and failed to notice that one was marked "Metric." The realization at 1:57 p.m., or a few seconds thereafter, that he might not have received all of the bids on the Cruise Terminal project prompted Mr. Lapolla to decide to open first the bids of a different project. Respondent had advertised that, at the same time and place, bids would be opened for a much smaller project involving work on an office building. The office building project was entirely unrelated to the Cruise Terminal project. Respondent often set bid openings for more than one project at the same time and place. Mr. Lapolla decided to open the office building bids first in order to allow time for bids or bidders "hung up at the front desk." It was Mr. Lapolla's understanding that, given the language of the ITB and advertisement, a bid delivered to any full-time employee in the building prior to 2:00 p.m. would be timely. The decision to open first the office building bids did not necessarily signify a decision to accept late bids because Mr. Lapolla was correct in his understanding. Under the facts of this case, a bid could be timely submitted to the receptionist in the front lobby at 1:59:55 and not be delivered to Mr. Lapolla until after 2:00 p.m. In opening the office building bids first, Mr. Lapolla intended only to allow timely but "hung up" bids to get to the Commission Room, not to allow late bids to be submitted. Meanwhile, in the parking lot of the building, Intervenor's representative hung up on his office 1:57 p.m. After adding information to his proposal, he left his truck and proceeded to the lobby. The receptionist told him that Ms. Smith had already picked up the proposals and taken them to the Commission Room where they were going to be opened. Intervenor's representative immediately jogged from the lobby along the side of the building to the exterior entrance to the Commission Room. He entered the Commission Room and delivered his bid proposal to the table at 1:59:,15 p.m. As Intervenor's representative was running from the lobby to the Commission Room, the Miorelli representative approached the lobby, bringing his proposal to the receptionist. Although Intervenor's representative shouted to him to take his bid to the Commission Room, not the lobby, Miorelli's representative continued to the lobby, as the receptionist had instructed him earlier. The Miorelli representative reached the lobby at 1:59:30 p.m. This creates a discrepancy between his account of time and that of Intervenor's representative, who probably left the lobby by no later than 1:59 in order to reach the Commission Room at 1:59:15. However, the discrepancy is immaterial and suggests, at most, that Intervenor's bid was delivered to the Commission Room perhaps as late as 1:59:40, but in any event still well in advance of 2:00 p.m. The Mark Arnold representative arrived in the lobby just after Intervenor's representative and just before Miorelli's representative. When the Miorelli representative arrived on the heels of the Mark Arnold representative, the receptionist quickly ran both of them to the Commission Room. They delivered their proposals to the table at 1:59:50 with the Mark Arnold proposal delivered first. As the Commission Room clock approached 2:00 p.m., Mr. Lapolla announced, "It's two o'clock. Let's start opening bids." He added that he would first be opening the bids of the office building project. He did not state that the bidding was closed for either project. As Ms. Smith opened the first office building bid at 2:00 p.m., the only Cruise Terminal bid proposal not yet on the table was that of Petitioner. In fact, Petitioner's bid was not yet in the building at this time. Petitioner's representative hung up on his office at 1:59 p.m. He testified that he reached the lobby at 1:59:15, but this is impossible. The Miorelli and Mark Arnold representatives reached the Commission Room at least four minutes before Petitioner's representative. But they did not reach the lobby until 1:59:30, or, according to Petitioner's representative, fifteen seconds after he reached the lobby. In fact, Petitioner's representative did not enter the lobby until 2:03:30 p.m., at the earliest. Guided by the receptionist, Petitioner's representative did not enter the Commission Room until 2:04 p.m., at the earliest. He laid his bid proposal on the table while Mr. Lapolla was busy reading the office building bids. No one was recording the time at which bids were delivered to the table. A certain amount of confusion prevailed, as suggested by Mr. Lapolla's failure to realize that he already had received the Metric bid. Additionally, Ms. Smith was performing a task unfamiliar to her, and Mr. McMann, who was recording the bids, was performing the task normally done by Ms. Smith. Under the circumstances, it is clear that Mr. Lapolla was unaware, when Ms. Smith opened Petitioner's bid and Mr. Lapolla read it, that the bid was late. There was testimony that the Commission Room clock was determined, during the following week, to be two to three minutes faster than official time, as kept by the U.S. Naval Observatory. This testimony is irrelevant because the comparison is not timely and the time kept in the building was official, as it was reasonably accurate and not tampered with. Even if "official time" were relevant and three minutes slower, however, Intervenor's representative would have entered the lobby at no earlier than 2:00:30 p.m. and still would have been late. At no earlier that 2:10 p.m., Mr. Lapolla announced that he was ready to begin opening bids on the Cruise Terminal project. He did not announce that the time for submitting bids on the Cruise Terminal project was closed. Mr. Lapolla then opened and read all seven bids, including Petitioner's bid. He read the bids by reading the bidder's name and the amount bid, except in the case of Miorelli. Miorelli had failed to enclose a required bid bond. Reading the amount of the Miorelli bid, Mr. Lapolla noted that it lacked a bid bond, but took no further action to disqualify Miorelli or reject the bid. At the conclusion of the reading of the bids, Petitioner's bid was the lowest at $8,188,000. Intervenor's bid was the second lowest amount at $8,288,000. Mr. Lapolla announced that Petitioner was the "apparent low bidder." Respondent later determined that, but for the lateness of Petitioner's bid, its proposal was responsive and it was responsible. When Petitioner's representative identified himself in the audience, Intervenor's representative, recognized him as the man who had arrived at 2:04 p.m. After contacting his office, Intervenor's representative told Mr. Lapolla of this fact and protested any award to Petitioner. The architect's last estimate for the project, which was made in August, 1989, had been $6,200,000. The immediate concern among Respondent's employees was the cost of the project. The Assistant Director of Engineering Contacted the President of Petitioner's Florida Division later in she afternoon of February 16 and asked him to come over the following Monday, February 19, and discuss ideas to reduce the cost of the project. At the February 19 meeting, Mr. Lapolla stated that he would be recommending to the Board of Commissioners that they reject all bids and rebid the project due to the amount by which it was over budget. The lateness of Petitioner's bid was discussed as a secondary matter. The Board met on February 21 and considered, at the end of a long agenda, the Cruise Terminal project. The Board determined that Petitioner's bid was late and Intervenor's bid was timely. The Board concluded that they did want to rebid the project and did not want to accept a late bid. Respondent thus announced its intent to award the contract to Intervenor. Petitioner then timely filed a notice of protest and written formal protest. Respondent has no written rules or policies governing bidding procedures. Until about five yearns ago, the Board opened all bids. Mr. Lapolla has handled about five to ten bid openings annually for Respondent for a total of about $25 million. However, neither he nor Respondent has previously encountered a late-bid situation. The Cruise Terminal project is the most expensive single project that Respondent has undertaken. Industry custom is to reject late bids without opening them. The Board has delegated little authority to Mr. Lapolla in the bidding process. In particular, the Board has retained the authority to determine whether a bid is, responsive and a bidder responsible. The Board has also retained the authority to determine whether to award a contract based on a late bid. Mr. Lapolla's authority is limited to accepting the bids and presenting them to the Board, with his recommendation, for final action. Specifically, he was authorized to read the clock, start opening bids at the appointed time, read the bids, and announce the apparent low bidder. He is also responsible for developing whatever factual record the Board requires for deciding whether to award a contract to a particular bidder. There was no evidence that the decision of the Board to award the Cruise Terminal contract to Intervenor was based on illegality, fraud, oppression, or misconduct or that it was arbitrary or capricious. Undoubtedly, the fact-finding process was flawed. Most significantly, it resulted in the misidentification of the Metric and Miorelli bids as late. However, the process culminated in the correct findings that Petitioner's bid was late and Intervenor's bid was timely. Although not advised of their legal right to accept a late bid, the Commissioners clearly wanted to exercise their right to reject late bids in order to avoid establishing a poor reputation in the construction industry.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Canaveral Port Authority enter a final order dismissing the petition of Brice Building Company. ENTERED this 14th day of May, 1990, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk o the Division of Administrative Hearings this 14 day of May, 1990. COPIES FURNISHED: Emery H. Rosenbluth, Jr. Ralph C. Losey Subin, Shams, Rosenbluth & Moran, P.A. P.O. Box 285 Orlando, FL 32802 Leon Stromire Howard Bistline Stromire & Bistline 1970 Michigan Avenue Cocoa, FL 32922 John W. Foster William D. Sublette Baker & Hostetler P.O. Box 112 Orlando, FL 32802 APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-11: adopted or adopted in substance. 12: rejected as irrelevant. 13-14: adopted. 15: rejected as unsupported by the greater weight of the evidence and recitation of testimony. 16: adopted in substance. 17-18: rejected as irrelevant. 19-23: adopted or adopted in substance. 24: rejected as unsupported by the greater weight of the evidence. Bids could be submitted anywhere in the building. No bidder for the Cruise Terminal project appeared before 2:00 p.m. with his bid in the lobby or anywhere else in the building, but did not deliver his bid before 2:00 p.m. at the table in the Commission Room. 25: adopted except as to the Mark Arnold representative. No evidence was presented as to the Foley and Metric representatives. 26: adopted in substance. The Butler bid, which was the third received, was apparently delivered by the Butler representative to the Commission Room table. 27-31: adopted or adopted in substance. 32: rejected as irrelevant and unsupported by the greater weight of the evidence. 33-34: rejected as unsupported by the greater weight of the evidence. 35: adopted. 36: first sentence rejected as unsupported by the greater weight of the evidence. Second sentence adopted. 37-40: adopted or adopted in substance. 41: first sentence adopted. Second sentence rejected as irrelevant. 42-45: adopted. 46: adopted except first clause of last sentence rejected as unsupported by the greater weight of the evidence and legal argument. 47: rejected as irrelevant. 48-50: adopted. 51-56 and 58: rejected as unsupported by the greater weight of the evidence, legal argument, and irrelevant. 57: first sentence adopted. Second sentence as unsupported by the greater weight of the evidence. In both cited portions of testimony, Mr. Lapolla testified to the effect that the Board, not himself personally, had the authority to waive a minor irregularity. 59-60: rejected as irrelevant. 61: adopted, although "official time" is irrelevant. 62-65 and 68-73: rejected as subordinate and irrelevant except that Respondent voted to award the contract to Intervenor. 66: rejected as unsupported by the greater weight or the evidence. 67: rejected as irrelevant and unsupported by the greater weight of the evidence. 74-76: rejected as irrelevant, unsupported by the greater weight of the evidence, and subordinate. Treatment Accorded Proposed Findings of Respondent 1-17: adopted or adopted in substance. 18-19: rejected as subordinate. 20-21: adopted. Treatment Accorded Proposed Findings of Intervenor 1-5: adopted or adopted in substance. 6: first sentence adopted as to the responsibility of Mr. Lapolla to make the initial factual findings concerning lateness. Second sentence rejected as unsupported by the greater weight of the evidence. Third sentence adopted. 7: rejected as irrelevant and unsupported by the greater weight of the evidence. 8: rejected to the extent that the finding implies a difference between the lobby and Commission Room clocks. 9: adopted. 10: first sentence adopted. Remainder rejected as irrelevant. 11: adopted. 12: rejected as unsupported by the greater weight of the evidence. The Butler bid was delivered by the Butler representative to the Commission Room at 1:57 p.m. 13: first sentence rejected to the extent that the finding implies that receipt in the lobby was ineffective. Remainder adopted in substance. 14-19: adopted or adopted in substance. 20: adopted in substance except that Mr. Witek is an employee of Intervenor. 21: rejected as irrelevant. 22-24: adopted. 25-26: adopted except that the "official time" is Irrelevant. 27: first sentence adopted as to the responsibility of Mr. Lapolla to make the initial factual findings concerning lateness. Remainder adopted. 28: adopted as to the purpose of the meeting and decisions reached by Respondent. Remainder rejected as irrelevant. 29: adopted. 30: rejected as subordinate.
The Issue Under the standards established by Section 330.30, Florida Statutes, and Rule Chapter 14-60.05, Florida Administrative Code, the issues presented for resolution are: Whether the site is adequate for the proposed private seaplane base. Whether the proposed seaplane base will conform to minimum standards of safety. Whether safe air traffic patterns can be worked out for the proposed airport and for all existing airports and approved sites in the vicinity.
Findings Of Fact Based on the stipulations of the parties, the testimony of the witnesses, and the exhibits admitted in evidence at the hearing, I make the following findings of fact. On August 24, 1983, Mr. Ruzakowski of 159 San Remo Drive, Venetian Shores Subdivision, Islamorada, Florida, filed an application with attachments with the Department for a private seaplane base license. The application of the proposed private seaplane base to be known as Plantation Key seaplane base proposes that landing and taking off would be in the open water area known as Florida Bay or Cotton Key Basin and that the seaplane would be parked on a ramp at the applicant's home. In order to reach the applicant's waterfront home, the application proposes a taxi route along Snake Creek which connects Florida Bay to the applicant's home. The application had attached to it a letter of zoning approval from the Building and Zoning Department of Monroe County signed by Mr. Joseph E. Bizjak, Assistant Building Official, which letter stated that the ramp on the applicant's property ". . . has never been and is not now in violation of any Monroe County zoning codes." The Department of Transportation has never been notified by the Monroe County Zoning and Building Department of any withdrawal of this zoning approval. Also attached to the application was a letter from Robert Billingsley supervisor of the program development section of the Federal Aviation Administration which stated that the FAA airspace approval for applicant's seaplane was still current and in effect. Mr. Ruzakowski's 1976 application for a seaplane base proposed using Snake Creek as a take-off and landing area. The instant application only proposes to use Snake Creek as a taxi area to and from Mr. Ruzakowski's residence (where he proposes to park the airplane) and the take-off and landing area in Florida Bay. The distance from Mr. Ruzakowski's residence to the take- off and landing area is approximately one mile. Upon receipt by DOT of Mr. Ruzakowski's 1983 application, an on-site feasibility inspection of the site was made by Mr. Steve Gordon of the DOT's Sixth District in Miami, Florida. Mr. Gordon, a District Aviation Engineer, has extensive experience as an airplane pilot and as an airport site inspector. Mr. Gordon conducted an adequate on-site inspection and concluded that the proposed seaplane base appeared to be in compliance with the applicable statutory and rule provisions. Specifically, Mr. Gordon concluded that the take-off and landing operations would be away from the area of the homes in the development, that the ramp on Mr. Ruzakowski's property was adequate for safe approach upon his lot, that his lot was a safe place to park his seaplane, that Snake Creek was wide enough for taxiing the airplane, that the take-off and landing area contained no obstructions or hazards, and that there was no hazard to other airports in the area. Following the inspection, Mr. Gordon wrote to Mr. Ruzakowski and to the DOT officials and advised them that the proposed site was feasible for a private seaplane base under the applicable licensing requirements. Thereafter, the DOT sent notice to approximately 200 addressees advising them of the proposed private seaplane base application, the inspection results, the DOT's intent to issue site approval and advising of a public meeting on the matter. The notice was also published in The Florida Keys Keynoter newspaper on October 13, 1983. Among the addressees notified by mail were adjacent property owners, the Monroe County Building and Zoning Department, the Monroe County Board of County Commissioners, and the FAA. The Marine Patrol and the Coast Guard were also notified of the public hearing. Neither the Monroe County Board of County Commissioners nor the Monroe County Building and Zoning Department sent a representative to attend the public hearing. Following the public hearing and consideration of all of the objections stated at the public hearing, Mr. Gordon recommended that site approval be granted for the proposed seaplane base. There are other licensed seaplane bases in Florida in which the take- off and landing areas are in open water such as bays and in which seaplanes using the base taxi to and from the parking area in channels used by boats. The airplane owned by Mr. Ruzakowski which he proposes to use at the subject seaplane base is a modified Republic Seabee. The modifications include modifications which make the airplane more maneuverable, quieter, and dependable. When taxiing on the water the pilot of the Seabee has excellent visibility of everything from very close to the airplane to infinity. The airplane is very maneuverable on the water, due in part to the fact that it has both water and air rudders. The airplane can be stopped very quickly on the water because the direction of the propeller thrust can be reversed. The propeller reversal also makes it possible for the airplane to back up while on the water. The airplane can taxi on the water as slowly as 5 miles per hour. Once it reaches the take-off area, the actual take-off run lasts only about 18 or 20 seconds. The airplane is approximately 40 feet wide from wingtip to wingtip. The tip of the airplane propeller is at least four feet above the water. As a result of the excellent visibility from the airplane and the high degree of maneuverability of the airplane, it is easy for the pilot of the airplane to observe and avoid any boats or other objects in the vicinity of the airplane. While operating on the water the airplane is subject to the same navigation rules which apply to boats and ships. The applicant, Mr. Ruzakowski is a 73 year old retired airline pilot. He has between 20,000 and 22,000 hours of flying experience, approximately 75 percent of which was as pilot in command. He has flown a large number of different types of airplanes, including land based airplanes, seaplanes, and amphibians. He has had extensive experience in both single- engine and multi- engine aircraft. In 54 years of flying he has never had an accident. Safety is the main factor in all of his flying. Mr. Ruzakowski is an FAA consultant engineer and does all of the maintenance and repairs on his own airplane. He has invented an improved control system for the Republic Seabee aircraft and has received FAA approval for his invention to he installed on other Republic Seabees. Mr. Ruzakowski appears to be in excellent physical and mental condition; at the hearing he appeared to be strong, agile, and alert. These appearances are confirmed by the fact that he currently holds a valid FAA pilot's license and medical certificate. He has never been denied an FAA medical certificate. His vision is excellent and is perhaps getting better because several years ago his FAA medical certificate required him to keep reading glasses in the aircraft, but his current medical certificate contains no such restriction. Snake Creek is used by a variety of large and small commercial and pleasure boats. The volume of boat traffic varies from day to day and also by time of day. At times there are also swimmers and divers in Snake Creek and in the designated take-off and landing area. However, none of the boat traffic is incompatible with the operation of the applicant's airplane because the visibility from the airplane and the maneuverability of the airplane are such that the pilot of the airplane has as much or more ability to avoid or prevent a collision as does the operator of any of the boats and ships using the waterway.
Recommendation Based on all of the foregoing it is recommended that the Department of Transportation issue a Final Order approving the issuance of Site Approval Order No. 83-34. DONE and ORDERED this 15th day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 15th day of May, 1985. COPIES FURNISHED: Joe Miklas Esquire Post Office Box 366 Islamorada, Florida 33036 James Baccus, Esquire Post Office Box 38-1086 Little River Station Miami, Florida 33138 Judy Rice, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064 Honorable Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064
Findings Of Fact On November 15, 1982, Petitioner applied to Respondent to take the January 31, 1983, pilot's examination for the Port of Miami. Prior to that time, Petitioner had served as an apprentice pilot in the Port of Miami from January 1, 1967, through January 1, 1971. Petitioner was terminated from his position as an apprentice pilot with the Port of Miami in 1971, and has not piloted any ships in the Port of Miami or any other port in the state since that time. At the time of his application to take the pilot's examination, Petitioner was over 18 years of age, had been awarded a high school diploma, and was in good physical and mental health. Petitioner had also obtained a valid first class unlimited pilot's license issued by the United States Coast Guard in 1971. In addition to Petitioner, three other persons, William A. Arata, Stephen E. Nadeau, and Robert K. Brownell, also applied to take the January 31, 1983, pilot's examination for the Port of Miami. Arata submitted his application to sit for the examination on November 19, 1982. At that time, Arata had been licensed as a deputy pilot for the Port of Miami since January 28, 1980. In addition, he possessed an unlimited first class pilot'S license for the Port of Miami and had successfully completed the deputy pilot training program for that port. On November 24, 1982, Nadeau submitted his application to sit for the January 31, 1983, pilot's examination. Nadeau had been licensed as a deputy pilot in the Port of Miami since July 23, 1980, possessed an unlimited first class pilot's license for the Port of Miami, and had successfully completed the Port of Miami deputy pilot training program. Brownell applied on November 29, 1982, to sit for the same pilot's examination. At that time, Brownell had been licensed as a deputy pilot for the Port of Miami since July 31, 1980, also possessed an unlimited first class pilot's license for the Port of Miami, and had successfully completed the Port of Miami deputy pilot training program. In accordance with the provisions of Section 310.071, Florida Statutes, the applications of Petitioner, Arata, Nadeau, and Brownell were submitted to the Department of Professional Regulation which, in turn, submitted those applications to Respondent for a determination of eligibility to sit for the licensing examination. Respondent ultimately determined and advised the Department of Professional Regulation that all four applicants were qualified to sit for the licensing examination. All four applicants took the examination on January 31, 1983, and each of them received a passing grade. In accordance with Rule 21-8.09, Florida Administrative Code, the Department of Professional Regulation ranked the grades received by the applicants from highest to lowest. Petitioner received the lowest grade of the four applicants. Accordingly, since Respondent had certified three openings to be filled for licensed state pilots in the Port of Miami, the Department of Professional Regulation, act some time between February 1, 1983, and May 6, 1983, issued state pilot licenses for the Port of Miami to Captains Arata, Nadeau, and Brownell. There is in force in the Port of Miami a Deputy Pilot Training Program which has been approved by Respondent. The minimum time required for completion of the program, which is a prerequisite for applying for a state pilot's license, is two years. One of the requirements of the program is that participants obtain a first class unlimited pilot's license from the United States Coast Guard. This license allows the holder to pilot coastwise vessels which sail under the American flag. A state pilot's license standing alone permits the holder only to pilot ships sailing under foreign flags. In order to acquire a first class unlimited pilot's license, an applicant must possess another maritime license, such as a master's or male's license, must meet age and sea experience requirements, and must pass an examination prepared and administered by the United States Coast Guard. In addition, a condition to obtaining a first class unlimited pilot's license is that the applicant must possess a radar observer's certificate. The Florida State Pilot's Association, Inc., is a nonprofit corporation composed of 59 licensed state pilots from every port in Florida with the exception of Jacksonville and Fort Pierce. Captains Arata, Nadeau, and Brornell are members of that organization. The purpose of the organization is to represent the interests of its members at local, state, and federal levels.
The Issue The issue is whether the Department of Transportation (the "Department") properly issued an Airport Site Approval Order to Monroe Airport, a private airport in Putnam County, in accordance with section 330.30, Florida Statutes, and Florida Administrative Code Rule 14-60.005.
Findings Of Fact The Department is the agency of the State of Florida granted authority to issue Airport Site Approval Orders, license public airports, and register private airports. § 330.30, Fla. Stat. A "public airport" is an airport, publicly or privately owned, that is open for use by the public. A "private airport" is an airport, publicly or privately owned, that is not open for use by the public but may be made available to others by invitation of the owner or manager. § 330.27(5)&(6), Fla. Stat. With some exceptions not relevant to this case, the owner or lessee of any proposed airport must obtain site approval from the Department "prior to site acquisition or construction or establishment of the proposed airport." § 330.30(1), Fla. Stat. Section 330.30(1) provides that applications for approval of a site "shall be made in a form and manner prescribed by the department." The statute requires the Department to grant the site approval if it is satisfied: that the site has adequate area for the proposed airport; that the proposed airport will conform to licensing or registration requirements and will comply with local land development regulations or zoning requirements; that all affected airports, local governments, and property owners have been notified and any comments submitted by them have been given adequate consideration; and that safe air-traffic patterns can be established for the proposed airport with all existing airports and approved airport sites in its vicinity. § 330.30(1)(a), Fla. Stat. Michael Monroe is the owner of property in Crescent City on which he proposes to place a private airport. Mr. Monroe has in fact constructed an airstrip on the property. In constructing his airstrip in 2008, Mr. Monroe caused the dredging and filling of jurisdictional wetlands without a permit. An enforcement action by the Department of Environmental Protection led to a consent order dated October 28, 2009. The consent order required payment of a civil penalty and required Mr. Monroe to undertake various actions in mitigation of his unpermitted wetlands activities. The Department's Aviation Office sent a cease and desist letter to Mr. Monroe, dated April 27, 2010, and signed by Micki Liddell, then the Department's Private Airport Registration Manager. The letter stated as follows, in relevant part: This letter is follow-up to our telephone conversation of this date regarding a citizen complaint received by the Florida Department of Transportation (FDOT) April 27, 2010, concerning allegations of flight operations to and from your property. The law (section 330.30, F.S.) states that the owner or lessee of any proposed airport shall obtain approval of the airport site by the Department and subsequently shall have either a public airport license or private airport registration "prior to the operation of aircraft to or from the facility." Our records show that neither an Airport Site Approval Order nor airport license or private airport registration have been issued by the Department for your residence. Flight operations to and from your residence would confirm that your residence is being used as an "airport" and being unauthorized by the Department would constitute a violation of Florida law and could put a site approval request in jeopardy. In that regard, the Department hereby advises you to cease all flight operations to and from your residence until such time as you have followed the appropriate procedures to obtain airspace approval from the Federal Aviation Administration (FAA), local zoning approval, airport site approval and private airport registration from the Department, provided your site meets the criteria of chapter 330, Florida Statutes. At the final hearing, Mr. Monroe testified that he had flown planes in and out of his property on four occasions prior to the issuance of the cease and desist letter. He stated that he has only flown a plane out of his property on one occasion since receiving the cease and desist letter, and that he had received verbal approval from the Department for the flight. On July 30, 2010, Mr. Monroe received airspace approval from the FAA for a private use landing area, with the following provisos: a) all operations will be conducted in VFR weather conditions; b) the landing area will be limited to private use; and c) an operational letter of agreement ("LOA") will be entered between Mr. Monroe, and the owners of nearby airfields Eagle's Nest Aerodrome, Mount Royal Airport, Jim Finlay Airport, and Thunderbird Airpark, to provide for compatible traffic pattern operations, considering common radio frequencies, traffic pattern altitudes, and other items as appropriate. The FAA also recommended certain approach slope ratios and centerline separation from roads and other objects. On November 15, 2010, the FAA issued an amended determination providing a fourth condition to its approval: that all arrivals, departures and traffic pattern operations remain clear of a nearby military restricted area. In August 2010, Mr. Monroe applied to the Putnam County Zoning Board of Adjustment for a special use permit ("SUP") to allow a private airport on his property, which was zoned Agricultural. At its public meeting on October 20, 2010, the Zoning Board unanimously denied the SUP after hearing Petitioner and a representative of the U.S. Navy speak in opposition. The Navy had initially contended that the airport would be located within the restricted airspace of the Lake George bombing range. Further review confirmed that the airport was outside that particular restricted airspace, but the Navy continued to assert that the airport was within the generally restricted airspace of its military operating area. After clarifying that the airport property was not in restricted airspace, Mr. Monroe reapplied for the SUP in September 2011. By Final Order dated November 16, 2011, the Zoning Board issued SUP-11-009 to Mr. Monroe and his wife, finding that the Putnam County Land Development Code allowed for a private aircraft landing facility by SUP in an Agricultural zoning district and that the proposed special use "will not adversely affect the general public health, safety and welfare of the residents of Putnam County." Appended to the Final Order were minutes of the public hearings, schematics of Mr. Monroe's property, and a Department of Environmental Protection closure request form stating that the conditions of the October 28, 2009, consent order had been satisfactorily completed. On January 27, 2012, Mr. Monroe submitted a site approval application to the Department, using the interactive internet-based system established under rule 14-60.005(3)(b). Rule 14-60.005(4) sets forth the following as conditions for site approval: The Department shall grant site approval for a proposed airport that complies with all the requirements of section 330.30, Florida Statutes, subject to any reasonable conditions necessary to protect the public health, safety, or welfare. Such conditions shall include operations limited to VFR flight conditions,[2/] restricted approach or takeoff direction from only one end of a runway, specified air-traffic pattern layouts to help prevent mid-air collision conflict with aircraft flying at another nearby airport, airport noise abatement procedures in order to satisfy community standards, or other environmental compatibility measures. Rule 14-60.005(5)(a)-(m) sets forth the supporting documentation that an applicant for a public airport site approval must submit to allow the Department to make its site approval determination and "to ensure the applicant's satisfaction of conditions" set forth in subsection (4) above. The supporting documentation is as follows: Property Rights. Provide a copy of written legal confirmation of ownership, option to buy, or lease agreement for the real property that comprises the site on which the proposed airport would be located. Although adequate safety areas surrounding an airport site are important and a factor in the Department’s approval determination, the applicant is not required to hold property rights over those real property areas that would constitute runway approach surfaces. Facility Diagram. Provide a scale drawing showing the size and dimensions of the proposed facility; property rights of way and easements; lighting, power, and telephone poles; location of building(s) on property and surrounding areas; and direction, distance, and height of all structures over 25 feet within 1,000 feet of the site perimeter. Geodetic Position. Provide a copy of a U.S. Geological Survey quadrangle map or equivalent with the proposed site plotted to the nearest second of latitude and longitude. Location Map. Provide a copy of a map or sketch, at least 8.5 x 11 inches in size, showing the location of the proposed site, with respect to recognizable landmarks and access roads to the site clearly marked. Aviation Facilities. Provide a list of names and mailing addresses for adjacent airports, including a sample copy of the letter submitted as proposal notification to these airports, and attach a copy of all airport reply correspondence. For a proposed airport or seaplane landing facility, list all VFR airports and heliports within five nautical miles and all IFR airports within 20 nautical miles. For a proposed heliport, list all VFR airports and heliports within three nautical miles and all IFR airports within 10 nautical miles. Local Government. Provide a copy of each of the letters of notification, showing the recipient's name and mailing address, that have been submitted to each zoning authority having jurisdiction, for the municipality and county in which the site lies or which is located within five nautical miles of the proposed airport site. The applicant shall also include a copy of all related correspondence from each city or county authority, including a statement that the proposed airport site is in compliance with local zoning requirements or that such requirements are not applicable. Adjacent Property. Provide a list of the names and mailing addresses of all real property owners within 1,000 feet of the airport site perimeter, or within 300 feet of the heliport or helistop site perimeter, including a single copy of the letter of notification submitted as notification to these adjacent real property owners, and include a copy of all real property owner correspondence in reply. If notification was provided by a local government as part of its review and approval process for the airport, provide written confirmation of the fact, in lieu of the above required submittal by the applicant. Public Notice. Provide a copy of the notice and of the letter, showing the recipient's name and mailing address, requesting publication of notification of the proposed airport site in a newspaper of general circulation in the county in which the proposed airport site is located and counties within five nautical miles of the proposed airport site. If this condition has been accomplished by a local government as part of its review and approval process for the airport, provide written confirmation of the fact, in lieu of the above required submittal by the applicant. Waste Sites. Provide written confirmation that the runway(s) on the proposed airport would not be located within 5,000 feet of any solid waste management facility for a proposed airport serving only non-turbine aircraft, or within 10,000 feet of any solid waste management facility for a proposed airport serving turbine-driven aircraft. Air Traffic Pattern. Provide written confirmation, including a graphical depiction, demonstrating that safe air traffic patterns can be established for the proposed airport with all existing and approved airport sites within three miles of the proposed airport site. Provide a copy of written memorandum(s) of understanding or letter(s) of agreement, signed by each respective party, regarding air traffic pattern separation procedures between the parties representing the proposed airport and any existing airport(s) or approved airport site(s) located within three miles of the proposed site. Safety Factors. Provide written confirmation that the runway and taxiway design criteria and airport design layout of the proposed airport have appropriately taken into account consideration of the manufacturer's performance characteristics for the type(s) of aircraft planned to be operated; the frequency and type(s) of flight operations to be anticipated; planned aviation-related or non-aviation activities on the airport; and any other safety considerations, as necessary, to help ensure the general public health, safety, and welfare of persons located on or near the airport. Security Factors. Provide written confirmation that the proposed airport site owner or lessee will take appropriate steps to help protect the general public health, safety, and welfare through secure airport operations and that they will develop and implement adequate airport security measures to safeguard airport and aviation-related assets from misappropriation or misuse in order to prevent potential loss or public endangerment. FAA Approval. Provide a copy of the notification to the FAA regarding the proposed airport site and a copy of the FAA's airspace approval correspondence given in response. Rule 14-60.005(6) provides that an applicant for private airport site approval is subject to the same requirements as stated for a public airport site approval applicant. However, private airport applicants are not required to submit a hard copy, written site approval application nor the supporting documentation set forth in the preceding paragraph. Private airport site approval applicants are required to "retain for their records all of the required documentation related to the site approval application, in order to be able to respond to any possible future local, state, or federal inquiry." The private airport site approval applicant submits his application through a Department website. Once the applicant obtains a user ID and password to the site, he proceeds to an interactive site approval screen that requires him to provide the following data: type of facility (airport, heliport, or ultralight); personal information (name, address, phone number, fax number, and email address); facility data (facility name, physical location, geographical information -- latitude, longitude, and elevation -- and primary type of facility use); and landing area data (runway/helipad magnetic bearing, length, width, and type of surface -- paved/unpaved). The applicant is also required to certify that he has completed all the conditions set forth in rule 14-60.005(5)(a)- (m). The applicant must check a certification box next to each and every requirement of the rule. For example, as to the requirement of rule 14-60.005(5)(c), the applicant checks a box next to the following statement: Geodetic Position -- I certify that I have a copy of a U.S. Geological Survey quadrangle map or equivalent with the proposed site plotted to the nearest second of latitude and longitude. In other words, as a private airport applicant, Mr. Monroe was not required under the rule to submit the supporting documentation demonstrating his satisfaction of the conditions set forth in rule 14-60.005(5), but he was required to certify that at the time of his application he possessed all such documentation and was capable of submitting it in response to a governmental inquiry. On March 1, 2012, the Department issued an Airport Site Approval Order to Mr. Monroe, to be effective April 15, 2012. On April 6, 2012, Petitioner timely filed a challenge to the site approval order. Petitioner is the owner of property directly abutting the southeast corner of Mr. Monroe's property. Petitioner raises goats on her property, and contends that low- flying planes frighten her animals, causing them to stampede and injure themselves. Petitioner's challenge has stayed the effective date of the site approval order. David Roberts, the Department's aviation operations administrator, testified that in preparation for this proceeding he asked Mr. Monroe to produce all the documentation which he had certified to meet the requirements of rule 14-60.005(5)(a)- (m). The Department introduced into evidence all of the documents that Mr. Monroe provided in response to Mr. Roberts' request. As to rule 14-60.005(5)(a), Mr. Monroe provided copies of his deed for and mortgage on the Crescent City property sufficient to establish his property rights to the site on which the proposed airport is to be located. As to rule 14-60.005(5)(b), Mr. Monroe provided a hand drawing of the property indicating the configuration of the airstrip and showing the general locations of the entrance gate, barn, pond, bridge, and trailer on the property. The map is not drawn to scale and does not show property rights of way and easements or lighting, power and telephone poles. The map does not indicate the "direction, distance, and height of all structures over 25 feet within 1,000 feet of the site perimeter," but Mr. Monroe's testimony that there are no such structures is credited. As to rule 14-60.005(5)(c), Mr. Monroe provided a personally commissioned survey map of the property that the Department accepted as the "equivalent" of a U.S. Geological Survey quadrangle map. As to rule 14-60.005(5)(d), Mr. Monroe provided a map, but not one that showed "recognizable landmarks and access roads." As to rule 14-60.005(5)(e), Mr. Monroe submitted a list of five airports that met the notification requirement: Eagle's Nest Aerodrome, Mount Royal Airport, Jim Finlay Airport, Thunderbird Airpark, and Palatka Municipal Airport, also known as Kay Larkin Field. Mr. Monroe also included a sample copy of the letter providing proposal notification to these airports. The only direct reply correspondence that Mr. Monroe submitted was an emailed letter of congratulations from the manager of Palatka Municipal Airport, dated May 15, 2012. Mr. Monroe also submitted a June 10, 2012, email from Jim Manus of Royal Park Airport in support of Mr. Monroe's intent to align his common traffic advisory frequency ("CTAF") with that of Mount Royal and Eagle's Nest. The tone of Mr. Manus' correspondence indicates approval of Mr. Monroe's airport. No response was provided from Jim Finlay, Thunderbird, or Eagle's Nest.3/ As to rule 14-60.005(5)(f), Mr. Monroe provided copies of his letters of notification to the Marion County director of growth management and the Volusia County growth and resource management office. Volusia County responded by stating that it took no issue with the proposed airport and that the FAA had informed the county that it needed to take no action on the matter. Mr. Monroe provided no response from Marion County. As to the notice requirements of rule 14- 60.005(5)(g)&(h), Mr. Monroe provided a list of names and addresses of nearby property owners along with a letter of notification dated August 30, 2004, stating Mr. Monroe's intention to establish an airstrip on his property. He included no reply correspondence. Petitioner rightly argues that an eight-year-old letter cannot be held to meet the notice requirement of the rule. Though the rule does not state a temporal limitation as to the notice, the context of the notice requirement clearly requires the applicant to provide his neighbors with notice of the pending site approval. However, Mr. Monroe also provided the receipt from a newspaper notice that he ran in 2010 regarding his SUP application and he credibly testified that the county notified his neighbors prior to issuance of the SUP. Thus, the requirements of rule 14- 60.005(5)(g)&(h) were met. As to rule 14-60.005(5)(i), Mr. Monroe submitted documentation that demonstrated there are no active solid waste management facilities within the prescribed distances. As to rule 14-60.005(5)(j), Mr. Monroe provided a graphical depiction of the traffic pattern and approaches to his own proposed airport. The depiction also lists radio frequencies for Mr. Monroe's airport, Mount Royal, and Eagle's Nest. Mr. Monroe did not submit any documentation to demonstrate that safe traffic patterns can be established for the proposed airport with all existing airport sites within three miles of the proposed airport. Mr. Monroe also did not submit written memoranda of understanding or letters of agreement with the other airports as regards air traffic pattern separation procedures. As to rule 14-60.005(5)(k)&(l), Mr. Monroe submitted an opinion letter from aviation consultant Robert E. Babis, dated April 19, 2012, addressing safety and security factors at the proposed airport. Mr. Babis stated that he was a retired Department public transportation manager, a flight instructor, airport inspector, and aviation planner. Mr. Babis further stated that he has inspected and landed at over 200 private airports in Florida. Mr. Babis concluded that Mr. Monroe's airport "is a safe and secure facility with a very low risk for operational accidents or illegal activities." The Department reasonably accepted this letter as satisfying the criteria of rule 14-60.005(5)(k)&(l). As to rule 14-60.005(5)(m), Mr. Monroe submitted a copy of his amended FAA approval determination, dated November 15, 2010. Petitioner noted that Mr. Monroe has yet to fulfill one of the conditions of the FAA determination: he has yet to produce an operational LOA with the owners of Eagle's Nest, Mount Royal, Jim Finlay, and Thunderbird to provide for compatible traffic pattern operations, common radio frequencies, traffic pattern altitudes, and other items as appropriate. In summary, the evidence presented at the hearing demonstrated that, despite his certification otherwise, Mr. Monroe did not possess all the documentation required by rule 14-60.005(5)(a)-(m). Mr. Monroe did not meet the requirement of paragraph (b) that he provide a scale drawing showing property rights of way or easements, lighting, power and telephone poles. He did not meet the requirement of paragraph (d) that his map show recognizable landmarks and access roads. Most importantly, Mr. Monroe did not meet the requirement of paragraph (j) that he submit documentation demonstrating that safe traffic patterns can be established for the proposed airport with all existing airports within three miles. This failure, coupled with Mr. Monroe's failure to fulfill his commitment to the FAA that he would enter an LOA with the owners of four nearby airports, not to mention Mr. Monroe's history of building his airstrip and flying in and out of his property before obtaining legal permission to do so, indicates a casual approach to regulatory compliance that should give the Department pause in granting site approval. At the final hearing, Mr. Roberts of the Department testified that because a private applicant such as Mr. Monroe is not required to submit his supporting documentation to the Department to demonstrate compliance with rule 14-60.005(5)(a)- (m), the Department may not deny the site approval to Mr. Monroe once he has certified that he has all the documentation. Mr. Roberts testified that the Department's only recourse upon learning that Mr. Monroe in fact does not have the documentation would be to revoke the site approval order. The Department's rule sets forth the criteria for revocation of a site approval order. One of the grounds for revocation is a Department determination that "aircraft have operated on the site prior to airport licensing or registration, except as required for an in-flight emergency." Fla. Admin. Code R. 14-60.005(8)(b)3. By his own admission, Mr. Monroe flew into and out of his property prior to registration.4/ However, Mr. Roberts testified that the Department could not base a revocation action on those flights because they occurred prior to the date on which Mr. Monroe applied for site approval. Mr. Roberts could cite to no language in the rule that supported his restrictive view of the revocation provision. The Department does not persist in supporting Mr. Roberts' reasoning in its Proposed Recommended Order. The Department concedes that Mr. Monroe has failed to meet all the documentation criteria set forth in the rule and that it has the authority to deny the site approval order. The Department does not concede that the maps submitted in response to paragraphs (b) and (d) of rule 14-60.005(5) are deficient, but it does concede that Mr. Monroe failed to comply with paragraph (j) regarding the LOA setting forth jointly agreed-upon departure and arrival routes and common radio frequencies with the other nearby airports. The Department argues that Mr. Monroe should nonetheless be granted a Site Approval Order, subject to the condition that Mr. Monroe enter into an LOA establishing safe traffic patterns and radio frequencies with all airfields within three miles of his facility. The Department notes that if Mr. Monroe's application were denied in this proceeding, he could immediately procure the LOA and reapply. Granting the site approval in this proceeding would merely obviate the need for Mr. Monroe to take that largely redundant step. As authority for its contention that it may issue a site approval order prior to an applicant's compliance with all provisions of rule 14-60.005(5), the Department cites section 330.30(1)(d), which states: "Site approval may be granted subject to any reasonable conditions the department deems necessary to protect the public health, safety, or welfare."5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying the site approval application of Michael D. Monroe and withdrawing the Airport Site Approval Order issued to Mr. Monroe on March 1, 2012, Site Approval Number SW2012-FLA-0117-AP. DONE AND ENTERED this 21st day of February, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2013.
The Issue As described in the parties' Prehearing Stipulation Petitioners are challenging the Respondent's (SJRWMD) solicitation process with regard to the "Invitation to submit an Offer to Purchase property known as the Zellwin Airstrip." Petitioners seek to set aside the award of purchase to Intervenors and to have the solicitation process re-advertised. The issue for resolution is whether Petitioners are entitled to that relief.
Findings Of Fact In 1996 the Florida Legislature mandated that the St. Johns River Water Management District (SJRWMD) attempt to purchase farms on the north shore of Lake Apopka as part of a long-term restoration and reclamation project. Petitioners, Rex Shepherd and Dale Harper, are pilots and owners of an aerial advertising business, American Outdoor Aerial Advertising. In early 1998 the business was operating out of Crakes field, a small airstrip owned by Kent Crakes as part of Crakes' North Lake Apopka farm. Petitioners' business owned airplanes and banners which it flew for its advertising clients such as Sears and GEICO. Sometime in early 1998 it became obvious that Petitioners would need to move their operation to another field. There were break-ins at the hanger, and the airstrip was beginning to flood as a result of the reclamation project. Kent Crakes referred Rex Shepherd to Leonard Freeman, the individual with SJRWMD who was involved with land acquisition in the area. Around March or early April 1998 Petitioners commenced discussions with Mr. Freeman regarding their use of the farm airstrip at Zellwin Farms, also part of the SJRWMD Lake Apopka farms acquisition program. Mr. Freeman was the SJRWMD point of contact for the Zellwin Farms acquisition. By early 1998, the property was already under contract and was scheduled to close some time around June 1998. Mr. Freeman and the Petitioners met at the Zellwin Farms airstrip in June 1998, and Petitioners determined the property would be suitable for their operation. Eager to accommodate Petitioners because of their predicament and also in anticipation of the SJRWMD's eventual sale of the Zellwin parcel, Mr. Freeman gave permission for Petitioners to store their equipment on the site and gave them a key. Because Zellwin Farms was beyond what SJRWMD considered to be the lake's historic shoreline, the SJRWMD knew that it would need to dispose of its 1400 acres as surplus, in whole or part. Mr. Freeman's desire was to find a way to dispose of the property as the best thing for the SJRWMD. Thus, because of the Petitioners' immediate interest in relocating their business, Mr. Freeman began negotiating with them for their purchase of the airstrip and related buildings. In September 1998, Mr. Freeman met again with Petitioners at the airstrip and discussed a specific proposal. Petitioners talked about offering $250,000 under a lease-purchase arrangement, and sent a letter dated September 10, 1998, to Mr. Freeman with that offer. Mr. Freeman later suggested that since the appraised value was $275,000, an offer in that amount would be easier to get approved. Mr. Freeman did not have the authority to obligate the SJRWMD to sell the property and Petitioners understood that. Still, Petitioners felt they were negotiating in good faith with staff who could make a strong recommendation to the board. Petitioners believed in early October that they had a hand-shake deal subject to further discussions regarding specific terms. They knew that a competitive solicitation might be an option for the SJRWMD but they also believed that they would be given an opportunity to meet another third party's offer. This belief was based not on some specific agreement for a "right of first refusal," but rather on Mr. Freeman's good-natured assurances that they would work it all out. Mr. Freeman requested that the SJRWMD special counsel develop a draft contract based on Petitioners' offer. The offer would then need to be signed by Petitioners and approved by Mr. Freeman's supervisor before going to the SJRWMD governing board. The counsel never finished the draft and it was never given to Mr. Freeman or the Petitioners. By the end of October 1998, Robert Christianson, Mr. Freeman's supervisor and director of the SJRWMD Department of Operations and Land Resources, learned that Petitioners were flying in and out of the Zellwin airstrip and using it for their business base of operations. This activity was beyond the storage permission that Mr. Freeman had granted. (Even that permission was beyond his individual authority.) Mr. Freeman and Mr. Christianson met with Petitioners on October 27, 1998, to work out a license agreement for their use of the airstrip. Such an agreement was necessary to protect the parties' respective interests and to cover the SJRWMD for any liability in the landlord/tenant relationship. The result of that meeting was a written license agreement for Petitioners to use, maintain, and provide protection for the property for a period from October 30, 1998, to April 30, 1999, subject to revocation with advance notice. Petitioners used the airstrip property under that agreement and made improvements, mostly cleaning up the facility so it could be used. At the October meeting it became obvious to Petitioners that the informal negotiations for their purchase were terminated and that the SJRWMD was going to solicit competitive offers for the purchase. This concerned the Petitioners and they felt let- down by Mr. Freeman. Still, they concentrated on getting the license agreement worked out. Rex Shepherd's account of the October meeting was that Mr. Christianson was very clear about the fact that the SJRWMD had to go for competitive bid, that they were bound by a board and rules and regulations even though both he and Mr. Freeman would like for Petitioners to have the airport, and that they should be able to work it out. At the end of the meeting, and as they were leaving the trailer, Mr. Shepherd commented to Mr. Freeman that he really did not want to lose the airport and wanted to be apprised of what was going on so that if there were a higher bid, he could have the opportunity to match it, or if it were too high, that they would have 30 or 60 days to vacate the property. According to Mr. Shepherd, Mr. Freeman simply responded, "We'll work all that out, don't worry about it." On November 11, 1998, the SJRWMD governing board voted to surplus the Zellwin Farms property with direction to the staff that the sale be widely advertised in the aviation community and not be a sole source deal. Consistent with the board's direction and pursuant to Section 373.089(3), Florida Statutes, the SJRWMD advertised a "Notice of Intention to Sell" the airstrip property in the Orlando Sentinel for three consecutive weeks, November 9, 16, and 23, 1998. The notice identifies the airstrip property as an "Approximately 47-acre agricultural airport facility, 2,200'? square feet asphalt runway, 5,250 ? square feet metal hanger, 2,048 ? storage square feet building, well and septic tank at a location of northwest Orange County, Florida, Sections 20 and 29, T-20-S, R-27-E, on Jones Avenue, 1 ? mile west of U.S. Highway 441, Zellwood." The Notice of Intention to Sell states that "[a]ll interested persons are invited to submit an offer to the District for purchase of said lands. Contact the District . . . and request an Airport Sales Package." Both the Airport Sales Package and the Notice of Intention to Sell state that the airport property will be sold for the highest price obtainable. The sales package states that full cash offers to be paid at closing will be given first consideration and that 10 percent of the purchase price must be paid when the offeror was notified that it was successful. The sales package also states that any person adversely affected by an offer solicitation shall file a Notice of Protest, in writing, prior to the date on which the offers are to be received, and shall file a formal written protest within ten (10) days after filing the Notice of protest pursuant to Florida Administrative Code Rule 40C-1.801. * * * Failure to timely file a notice of protest or failure to timely file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (SJRWMD Ex. 3). Both the Notice of Intention to Sell and the sales package require that sealed "offers for purchase" be submitted to the SJRWMD prior to 2:00 p.m. on December 4, 1998, the advertised time for opening of the offers. Nothing in the Notice or sales package reserves a right of first refusal for any person. Instead, both plainly state "no offer will be accepted after the date and hour specified for submittal of offers." (SJRWMD Exhibits 1 and 3) Although Petitioners did not see the newspaper notice, they had knowledge that the SJRWMD advertised the sale of the airstrip property through a competitive solicitation process in the newspaper. They had been clearly informed of need for the competitive process by Mr. Christianson at the October meeting and they were present when a pre-solicitation meeting/inspection took place at the airstrip in November prior to the offers being accepted by the SJRWMD. Intervenors requested a sales package from the SJRWMD on November 30, 1998, and December 2, 1998. Petitioners requested and received a sales package prior to the opening of the offers to purchase. The sales packages were not available to the public until December 2, 1998, the same day Petitioners received their package. Mr. Freeman told Petitioners they needed to submit their bid. Although the sales package stated that facsimile offers would not be accepted by the SJRWMD, Leonard Freeman informed Petitioners that they could fax their Offer to Purchase. The SJRWMD did accept a facsimile offer to purchase from Petitioners on December 4, 1998, at 1:07 p.m. Offers to purchase were opened by the SJRWMD at 2:10 p.m. on December 4, 1998. Petitioners submitted an offer to purchase the airstrip property for $275,000, where Petitioners would pay $1,500.00 per month for 60 months ($90,000 with $72,000 applied toward principal) with a balance of $203,000 cash to be paid at the end of the 60-month term. Intervenors submitted an offer to purchase the airstrip property for $310,000, where Intervenors would put 10 percent down ($31,000 earnest money deposit) at award of Agreement of Purchase and Sale and the balance of $279,000 cash would be paid at closing on or before May 1, 1999. Petitioners' offer to purchase was not the highest offer; it did not provide for cash at closing; and it did not meet the requirement of 10 percent to be paid upon notification. Staff recommended to the SJRWMD board that it award the purchase of the airstrip property to the highest offeror, Intervenors. The governing board approved staff's recommendation at its regularly scheduled meeting on December 9, 1998. On December 9, 1998, Petitioners filed a Notice of Protest. On December 18, 1998, Petitioners filed a copy of their Formal Bid Protest with the SJRWMD. Petitioners never grasped the implications of the competitive solicitation process until after the offers were opened and the award was made to Intervenors. Even if Petitioners had seen the newspaper notice and had received the sales package sooner, they still would not have protested because they understood that their "agreement" was outside of the process. That is, they mistakenly perceived that after the offers were in they could negotiate further to exceed the high offer. Chagrined, and genuinely regretful of the misunderstanding, Mr. Freeman had to tell Petitioners that further negotiations were foreclosed after the offers were opened. Mr. Freeman's earlier assurances to Petitioners were the result of an excess of bonhomie rather than any deception. He wanted them to have the airport and he wanted to work out the sale of surplus property. Petitioners were aware that he did not have the authority to bind his agency to an agreement. Mr. Freeman never specifically told Petitioners they had a right of first refusal; they wanted that advantage and surmised agreement from Mr. Freeman's and Mr. Christianson's vague counsel to not worry and that it would all be worked out. The SJRWMD devised a competitive process for disposition of the Zellwin airstrip that was consistent with its statute and with the direction of its governing board. Intervenors responded with an offer that met all the published requirements. Petitioners did not, and any culpability of SJRWMD's staff for Petitioners' misunderstanding is not so egregious as to require that the process begin again. Petitioners occupied the property, used it, and made improvements to enhance their use. This, however, was in reliance on their license to use the property and not on some certainty that they would ultimately be able to own the property. As Petitioners testified at hearing, they were disappointed that the SJRWMD decided to solicit competitive proposals; they knew that it was possible someone would offer more than they could match. (Harper, Transcript pages 117-120).
Recommendation Based on the foregoing, it is RECOMMENDED: that the SJRWMD enter its final order denying Petitioners' request to reject all bids and re-advertise the sale. DONE AND ENTERED this 24th day of June, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1999. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post office Box 1429 Palatka, Florida 32178-1429 John W. Williams, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Clayton D. Simmons, Esquire Stenstrom, McIntosh, Colbert, Whigham And Simmons, P.A. Post Office Box 4848 Sanford, Florida 32772-4848 Stanley Dollen 1230 Kelso Boulevard Windermere, Florida 34786 Herbert Clark 5416 Trimble Park Road Mt. Dora, Florida 32757
The Issue The issue in this matter is whether section 330.30(3)(f), Florida Statutes, exempts Petitioner from obtaining the approval of the Department of Transportation prior to using a private heliport site adjacent to his property.
Findings Of Fact The Department is authorized to administer and enforce the rules and requirements for airport sites, including initial airport site approval, registration of private airports, and licensing of public use airports. See § 330.29, Fla. Stat. Petitioner owns a home next to Honeymoon Lake in Brevard County, Florida. Petitioner, an aviation enthusiast, also owns several helicopters. Petitioner currently parks his helicopters at a nearby airport. Petitioner desires to takeoff and land his helicopters at his home. Petitioner built a dock on Honeymoon Lake next to his property. Over the dock, Petitioner constructed a wooden platform to use as his heliport. Petitioner built the platform directly into the submerged lands beneath Honeymoon Lake. The platform is approximately 36 feet long by 32 feet wide. The platform rests on wooden pilings and is raised to about 15 feet above Honeymoon Lake. The platform is connected to the shore by a wooden foot bridge. Petitioner harbors two boats at the dock beneath the platform. Petitioner constructed the heliport for his private, recreational use only. Petitioner wants to use his heliport without applying for approval from the Department. Honeymoon Lake is a private (not State) body of water whose history goes back to a deed issued in the late 18th century. In 1878, President Rutherford B. Hayes, on behalf of the United States government, deeded Honeymoon Lake to the original developer of the area. Honeymoon Lake is approximately 300 feet wide at Petitioner’s property line. The area of the lake where Petitioner’s heliport is located is owned by the Stillwaters Homeowners Association and used as a recreation area. On September 5, 2017, after Petitioner constructed the platform, the Stillwaters Homeowners Association Board of Directors approved Petitioner’s heliport by resolution. Prior to this administrative action, Petitioner applied to the Federal Aviation Administration (“FAA”) for airspace approval to operate his heliport on Honeymoon Lake. On April 13, 2017, the FAA provided Petitioner a favorable Heliport Airspace Analysis Determination in which the FAA did not object to Petitioner’s use of his helicopters in the airspace over Honeymoon Lake. The FAA’s determination included an approved Approach/Departure Path Layout and Agreement with the 45th Space Wing, which operates out of nearby Patrick Air Force Base. Petitioner also represents that the heliport platform does not violate the Brevard County Building Code. In support of this assertion, Petitioner introduced the testimony of Brevard County Code Enforcement Officer Denny Long. In August 2017, after receiving a complaint that Petitioner’s heliport might have been built in violation of Brevard County ordinances, Mr. Long inspected Petitioner’s dock structure. Upon finding that Petitioner had already constructed his platform, Mr. Long could not identify a code provision that he needed to enforce. Therefore, he closed his investigation. Petitioner contends that the Honeymoon Lake area is not taxed by Brevard County. Neither is Brevard County responsible for any improvements thereon.3/ Because his heliport is situated over water and not land, as well as the fact that he will only use the heliport for occasional, private use, Petitioner believes that he is entitled to the exemption under section 330.30(3)(f) from obtaining the Department’s approval prior to landing his helicopters at his heliport. Section 330.30 states, in pertinent part: SITE APPROVALS; REQUIREMENTS, EFFECTIVE PERIOD, REVOCATION.— (a) Except as provided in subsection (3), the owner or lessee of any proposed airport shall, prior to . . . construction or establishment of the proposed airport, obtain approval of the airport site from the department. * * * (3) EXEMPTIONS.—The provisions of this section do not apply to: * * * (f) Any body of water used for the takeoff and landing of aircraft, including any land, building, structure, or any other contrivance that facilitates private use or intended private use. Petitioner asserts that the exemption described in section 330.30(3)(f) extends to a “building, structure or any other contrivance” that is constructed on, or over, a body of water. Therefore, since his landing site is situated over water, Petitioner argues that his heliport should be considered a “structure . . . that facilitates private use” of a “body of water for the takeoff and landing of aircraft” which qualifies him for an exemption from Department approval. Although Petitioner does not believe that he needed to apply to the Department for approval of his proposed landing site, he did so at the FAA’s suggestion. Around April 2017, Petitioner contacted the Department inquiring about the process to obtain an airport license or registration for his heliport. On September 25, 2017, however, the Department denied Petitioner’s application as incomplete. Pursuant to section 330.30(1)(a), the Department instructed Petitioner to produce written assurances from the local government zoning authority (Brevard County) that the proposed heliport was a compatible land use for the location and complied with local zoning requirements. In response, instead of supplementing his application, Petitioner asserted to the Department that his heliport was exempt from registration under section 330.30(3)(f) because it was located in a private body of water. On April 6, 2018, the Department issued Petitioner a formal “Letter of Prohibition.” The Letter of Prohibition notified Petitioner that he was not authorized to operate his helicopter from his dock/heliport without first registering his heliport with the Department and obtaining an Airport Site Approval Order. The Letter of Prohibition further stated that Petitioner’s heliport did not meet the exception from site approval and registration requirements in section 330.30(3)(f). The Department expressed that the exception only applied to “a body of water used for the takeoff and landing of aircraft.” The exception did not apply to the platform Petitioner desired to use as his landing site. Petitioner challenges the Letter of Prohibition in this administrative hearing. The Department, through Alice Lammert and Dave Roberts, asserts that Petitioner must register his private-use heliport before he may use it to takeoff or land his helicopters. Ms. Lammert and Mr. Roberts testified that the Department has consistently interpreted section 330.30(3)(f) to pertain to actual bodies of water, e.g., waters used by seaplanes or other floatable aircraft. Both Ms. Lammert and Mr. Roberts commented that Petitioner is not seeking to takeoff or land his helicopters on Honeymoon Lake. Petitioner intends to use a platform, situated 15 feet above Honeymoon Lake, on which to land his helicopters. Ms. Lammert and Mr. Roberts expressed that Petitioner’s construction of his heliport over water does not change the fact that his heliport is a fixed wooden structure and not a “body of water.” Consequently, Petitioner must obtain Department approval prior to using the platform for his helicopters. Ms. Lammert and Mr. Roberts added that if Petitioner’s helicopters were equipped with pontoons and landed directly on the surface of Honeymoon Lake, his “landing site” would qualify for the exemption set forth in section 330.30(3)(f). Ms. Lammert and Mr. Roberts further explained that the Department is responsible for ensuring that aircraft operating in Florida takeoff and land in safe, controlled areas. Through section 330.30, the Department is tasked to inspect all potential airport sites to make sure that the landing zones do not pose a danger to any aircraft (or helicopter) that might use them. Safety is the Department’s primary focus when approving private airport/heliport registrations. For example, as Ms. Lammert explained, the Department would inspect Petitioner’s heliport to ensure that the platform is sturdy enough and wide enough to bear the weight of Petitioner’s helicopters. The Department might also determine whether the platform should be equipped with a safety net. Regarding Petitioner’s argument that the Department should consider his heliport a “structure . . . that facilitates private use” of a body of water, Mr. Roberts understands the exemption under section 330.30(3)(f) to include docks that are used for persons disembarking from a seaplane or other floatable aircraft. The exemption, however, does not apply if the dock, itself, serves as the landing site. Regarding Petitioner’s reference to the FAA analysis determination, Mr. Roberts explained that while the FAA has authority to approve the use of the airspace over Honeymoon Lake, the authority to approve the landing site remains with the Department. Based on the evidence and testimony presented at the final hearing, Petitioner did not prove, by a preponderance of the evidence, that his heliport qualifies for an exemption under section 330.30(3)(f). Accordingly, prior to his use of his heliport to takeoff or land his helicopters, he must apply for site approval from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner’s request for an exemption from Department approval under section 330.30(3)(f) prior to the use of his wooden platform as a heliport. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2018.
The Issue The issue presented is whether Rule 61E13-2.012, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact l. Petitioner South Florida Cargo Carriers Association, Inc., is a Florida not-for-profit corporation with its principal office in Miami, Florida. Petitioner's purpose is to promote, advance, and secure laws, rules and regulations concerning vessels utilizing the navigable waters of the State of Florida, in particular the Port of Miami and Port Everglades, in order that the waters, harbors, and ports of the State and the environment, life, and property of all persons be protected to the fullest extent possible consistent with sound financial principles. Petitioner consists of the following companies: members of the Florida-Caribbean Cruise Association; Maersk, Inc.; Seaboard Marine; Kirk; SeaLand; Zim; Cari Freight; Thompson Shipping, and Burmuth. Intervenor Florida State Pilots Association, Inc., is a Florida not-for-profit corporation. It is a voluntary organization whose membership is comprised of all individual pilot associations serving the various ports of the State of Florida, as well as approximately 100 pilots licensed by the State of Florida. Among other things, Intervenor advances and defends the interests of its membership on the state level. The Port Everglades Pilots' Association (hereinafter "PEPA") is an association composed of present and retired harbor pilots that is treated as a partnership for tax purposes and which performs the pilotage services at Port Everglades. PEPA and its affiliates Port Everglades Pilots, Inc., and PEP, Inc., are located in Fort Lauderdale. The purpose of PEPA is to provide pilotage services in Port Everglades in a safe and efficient manner and in compliance with the provisions of Chapter 310, Florida Statutes, the rules promulgated thereunder, and any other provisions of law governing the provision of pilotage services. As such, PEPA is entitled to charge pilotage rates as provided in Section 310.151, Florida Statutes, and, as further provided therein, to seek rate changes by filing a petition with the Department of Business and Professional Regulation, Pilotage Rate Review Board. A number of Petitioner's members are affected by the rates of pilotage set for Port Everglades, inasmuch as they are required by Chapter 310, Florida Statutes, to utilize and compensate the pilots whose rates are established by the Board, and they are utilizing and compensating pilots in accordance with the rates currently established for Port Everglades. In January 1997 PEPA submitted to the Board an application for an increase in the pilotage rates for Port Everglades. In February 1997 Petitioner submitted its own application for a decrease in the rates of pilotage for Port Everglades. On May 20, 1997, the Board held a public hearing on both applications. At the conclusion thereof, the Board preliminarily determined to grant PEPA's application for a rate increase in its entirety and to deny Petitioner's application for a rate decrease. The Board's preliminary determination was reduced to writing on July 3, 1997. On July 28, 1997, Petitioner filed with the Board a Petition for Formal Administrative Hearing challenging the Board's decision to grant PEPA's application and to deny Petitioner's application. The Board thereafter transmitted that Petition to the Division of Administrative Hearings. The Board's transmittal letter filed August 7, 1997, cautioned the Division not to carry out its full statutory functions because: it is the Board's position , as expressed in rule 61E13-2.012(3), F.A.C., that the resolution of any disputed issue of fact by an [Administrative Law Judge] cannot result in a recommendation from that ALJ as to what the rate should be. The ALJ's recommendation should only extend to resolving the disputed issues of material fact. Subsequently, and based upon the resolved issues of fact, the Pilotage Rate Review Board will set the appropriate rates. On August 18, 1997, Petitioner filed its Petition Seeking an Administrative Determination of the Invalidity of an Existing Rule, challenging Rule 61E13-2.012(3), Florida Administrative Code, pursuant to Section 120.56(3), Florida Statutes. Petitioner has standing to file and maintain this rule challenge proceeding. Intervenor has standing to intervene in this rule challenge proceeding. Rule 61E13-2.012(3), Florida Administrative Code, was adopted before October 1, 1996. It was included on a list submitted by the Pilotage Rate Review Board in accordance with Section 120.536(2), Florida Statutes. It was subsequently amended by the Board, effective October 14, 1997, so as to delete all portions of the Rule except for Subsection (3) which is now the entire Rule.
Findings Of Fact Petitioner Richard L. Hensch submitted to the Department of Transportation (DOT) an Airport Site Approval and License Application dated December 8, 1987, for a private seaplane base on Lake Fairview in Orange County. On the application, Mr. Hensch indicated that flight activities that would be conducted from the proposed site could be sight-seeing flights, seaplane rides and tours and occasional seaplane instruction. Mr. Hensch plans to offer these activities to the public and charge fees for them. Attached to the Application was a letter dated December 17, 1987, from Ms. Sharon Smith, the Orange County Zoning Director, in which she states: Please be advised that insofar as Orange County Zoning requirements are concerned, our department has no jurisdiction over the use of water bodies of lakes; rather such use falls under the jurisdiction of the State of Florida. This letter was written at the request of the Petitioner. While the above-referenced application was under consideration by DOT, Petitioner applied for and received from the County tentative approval for an occupational license for his proposed operation. F.A.A. airspace determination approval letter for the proposed site was dated June 1, 1989. A Notice of Intent about the "proposed Private Seaplane Base" was issued by the Department of Transportation on June 21, 1989. A public meeting in connection therewith was conducted on August 28, 1989. Bronson Monteith, working for the DOT in Orange County, conducted the public meeting and recommended site approval relying on the letter by Orange County, dated December 17, 1987, as to the zoning. The Orange County Commission at its meeting held on August 14, 1989, objected to the placement of a seaplane base at Lake Fairview based on a determination by the zoning director and the county attorney's office that the proposed seaplane base did not comply with the zoning ordinance. The Lake Fairview area property is zoned predominantly residential, R- 1A, R-1AA with some C-2, R-T and R-3 zoning within the lake. Included within the commercial-type operations along and on the lake are jet-ski, sailboat and other watercraft rentals. Airports can be located only by special exception in A1 and A-2, agricultural zoning districts, and are permitted outright in I-5, Industrial Airport Zoning District. None of the lake area or shoreline areas are zoned A-1, Z-2 or I-5. During August of 1989, the Assistant Zoning Director, Joanne McMurray, who as Acting Zoning Director, received a memorandum from Mr. Hartman, Acting Director of the County's Administrative Services Office, about the seaplane base proposal whereby she researched the zoning regulations as to airport facilities and zoning districts and permitted uses. She determined the proposed seaplane site would not comply with the Orange County zoning requirements. Ms. McMurray had received information from the county legal department that Zoning had jurisdiction to govern the use of lakes. Lacy Moore, DOT's Chief of Airport Inspection, indicated that licensing followed site approval and was subject to annual renewal. Licensing was subject to revocation or denial of renewal if zoning changes occurred that made the airport out of compliance with zoning. DOT sought clarification from the County as to whether the proposed site was in compliance with the Orange County zoning regulations. Phillip N. Brown, Orange County Administrator, sent a letter to Mr. Moore dated October 30, 1989, advising that the proposed seaplane site was not a permitted use in the County zoning district for Lake Fairview. As a result of Mr. Brown's letter, Petitioner's application was denied on November 1, 1989, based on failure to comply with local zoning requirements. An "airport" is defined by the Orange County Zoning Ordinance as "any area of land or water designated and set aside for the landing and taking off of aircraft and utilized or to be utilized in the interest of the public for such purpose." No amendments to the zoning ordinance or zoning district map have been enacted since the filing of Petitioner's Application of December 8, 1987. On or about November 11, 1988, Ms. Smith, Orange County Zoning Director, by letter, stated that there were no zoning regulations in force in connection with another unrelated application for site approval and licensure of a private seaplane base on Big Sand Lake in Orange County, Florida. Licensed private airports have been authorized by DOT to provide services to the public such as airplane rides and flight instruction and charge fees. At the formal hearing held on this matter, several residents of the Lake Fairview area expressed opposition to the proposed seaplane site and indicated their concerns as to noise and safety because of extensive activity on the lake. Some people spoke in favor of the seaplane base indicating operational safety. Members of the public, including lake residents and others who spoke at the hearing, were not under subpoena by either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered by the agency head denying site approval for a private seaplane base on Lake Fairview in Orange County, Florida, because it does not comply with applicable county zoning as required by law. DONE AND ENTERED this 14th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6714 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,7,9,10 (discussed in Preliminary Statement). Rejected as argument: 8,11. Respondent's Proposed Findings of Fact: Accepted in substance: 1,2,3,4,5 COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Brian D. Stokes, Esquire Post Office Box 538065 Orlando, Florida 32853-8065 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, MS 58 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
