Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Captain Thomas A. Baggett, the respondent, has been a Tampa Bay pilot since 1969. At all times relevant to this proceeding, respondent has held a State pilot's license and is subject to the disciplinary jurisdiction of the Board of Pilot Commissioners. The M/V SCANDANAVIAN STAR is a Bahamian registered cruise ship which is 465 feet in length and has a beam of 72 feet. Because of its twin screws, twin rudders, twin bow thrusters and controllable pitch propellers, it is one of the most maneuverable ships on Tampa Bay. Its machinery and equipment functioned properly on December 2, 1984. Prior to making the outbound transit on the morning of December 2, 1984, Captain Baggett communicated with a tug and a dredge down the bay to inquire about the visibility because there was a hint of fog at the dock. It was reported to him that the tug and the dredge had three to four miles visibility. As respondent was piloting the M/V SCANDANAVIAN STAR toward C Cut, a heavy curtain of fog suddenly appeared near the vicinity of Buoy 17. The speed of the vessel was reduced to approximately ten knots, and respondent determined to proceed to Gadsden Cut. He was concerned that if he attempted to stop and anchor in the 500 foot wide channel, the stern of the ship would swing around, causing the vessel to run aground. As the vessel proceeded down C Cut, respondent was observing two radars - - a smaller radar set on a three-mile range and a larger radar set on a mile and a half range. On the bridge with him were Captain Rodenboog, Staff Captain Phillips, the Third Officer and the Helmsman. After respondent visually cited Buoy 13, located about nine-tenths of a nautical mile from Buoy 17, he ordered the vessel to begin making its turn. Several targets in addition to buoys appeared on the radar screen. Upon spotting what he believed to be Buoy 11 on the radar screen, respondent attempted to complete his turn utilizing that target as his turning point. Instead of completing the turn, the vessel ran aground. The only change in speed of the vessel between Buoy 13 and 11 occurred immediately before the grounding when Captain Rodenboog increased the speed to 11 knots to attempt to gain better steerage. After the fog lifted, respondent realized that what he thought was Buoy 11 was instead an anchored shrimp boat or fishing boat. Buoy 11 was discovered to be about 100 feet from the vessel's port bow. There is a distance of about three-tenths of a nautical mile between Buoys 13 and 11. There was no damage to the vessel M/V SCANDANAVIAN STAR as a result of the grounding. After the tugs were alongside, the vessel was refloated in a short period of time and continued on its voyage. Respondent brought the vessel back into port on the evening of December 2, 1984, without difficulty. There was some confusion as to the exact location of the grounding and the proper numbering of the buoys visually sited prior to and after the grounding. This resulted from the fact that the vessel's charts had not been updated with Local Notice to Mariners 20-84, which renumbered certain buoys, including Buoys Numbers 13 and 11. While this confusion contributed to discrepancies in reports and descriptions of the casualty during the investigation, it is specifically found that the actual numbering of the buoys had no causal effect in the grounding episode. When visibility is impaired by fog, there are various means for a pilot to properly determine his location. One, of course, is to stop the vessel and anchor until the fog lifts. It was not unreasonable for the respondent to discard this alternative due to the configuration of the channel and the length of the M/V SCANDANAVIAN STAR. Another means of determining location is "dead reckoning", or timing. This method involves several mathematical calculations of time, speed and distance, and is the most accurate when the speed of the vessel remains constant. Given the fact that there was a short period of time between the onset of heavy fog and the turns required, as well as the fact that there had been an adjustment in the speed of the vessel, it was not unreasonable for respondent not to utilize dead reckoning in determining the vessel's exact location before turning on what he believed to be Buoy 11. A functioning, properly adjusted, and appropriately interpreted radar picture provides a means of identifying a channel and determining a vessel's location with respect thereto. Proper utilization of a radar allows a turn from one channel to another to be accomplished with safety despite the presence of heavy fog. A reasonable and prudent pilot should look ahead and anticipate when using radar. Even if other contacts, such as pleasure boats or fishing boats, appear on the radar screen, a prudent pilot should be able to determine the pattern of buoys denoting the channel by taking into account other known landmarks in the vicinity. An alteration in course, such as a turn, should never be made on the basis of a single contact or scanty information. If the picture on the radar screen does not provide sufficient information, the range can be adjusted to provide further information. When operating with a single radar, some pilots consider it bad practice to shift the radar range or scale during a turn because of the possibility of losing the picture completely or having the previous range's targets continue to appear as "ghosts" on the new scope. As mentioned above, the M/V SCANDANAVIAN STAR had two operating radars at the time respondent's visibility was impaired by fog. One of the radars was set at a three-mile range and the other was set at a range of a mile and a half. It was therefore not necessary to shift the range of either radar to receive the information required to properly make the turn from C Cut to A Cut. Indeed, respondent admits that there were many contacts on the radar screen, that he could see the buoys into Gadsden and Big Bend Terminal and that he took them into account when he made his decision to turn on the target which he believed to be Buoy 11, but which in fact turned out to be a fishing boat. A forty- foot long, anchored fishing boat can resemble a buoy on a radar screen. Respondent simply mistook the fishing boat for Buoy 11 on the radar screen. This caused him to turn too soon, thus grounding the vessel. As a pilot, it was his responsibility to utilize his knowledge of known landmarks and determine which contacts on the radar screen denoted the channel and which contacts did not. If there were any doubt, respondent should have reduced the speed of the vessel and attempted to place the various contacts on the radar screen into context prior to making an alteration in course.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of negligence in piloting the M/V SCANDANAVIAN STAR on the morning of December 2, 1984, and that an administrative fine of $500.00 be imposed. Respectfully submitted and entered this 21st day of Januray, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21 day of January, 1987. APPENDIX The proposed findings of fact submitted by the petitioner and the respondent have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner Second sentence partially rejected, as the evidence demonstrates that speed was reduced at the initial onset of fog. Last sentence partially rejected insofar as it infers that only a single contact appeared on the radar screen. 17. Rejected as unsupported by competent, substantial evidence. 19. Rejected as irrelevant and immaterial. See Findings of Fact Number 8 in Recommended Order. Respondent 21. Partially rejected. Insufficient evidence to demonstrate that the shrimp boat was anchored "in the line of the buoys." 39. Rejected as contrary to the respondent's testimony that he visually spotted Buoy 13. 51-53. Accepted as correct recitation of testimony, but irrelevant to ultimate issue in dispute. 64. Rejected as irrelevant to the facts established. 66 & 67. Rejected as contrary to the greater weight of the evidence. 81. Rejected. The issue is not whether the vessel should have turned, but whether the location of the turning was appropriate. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PILOT COMMISSIONERS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. DOAH CASE NO. 85-2978 THOMAS A. BAGGETT, Respondent. / FINAL ORDER OF THE BOARD OF PILOT COMMISSIONERS This matter came before the Board of Pilot Commissioners pursuant to Section 120.57(1)(b)(9), Florida Statutes, on March 17, 1987, May 5, 1987, June 20, 1987, September 1, 1987 and November 10, 1987, in Tampa, Florida, for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A). Petitioner, Department of Professional Regulation, was represented by H. Reynolds Sampson, Esquire. Respondent was present at all but the November 10, 1987 meeting and was represented by Margaret D. Mathews, Esquire. Respondent filed Exceptions to the Recommended Order and Supplemental Exceptions to the Recommended Order. Petitioner filed a Response to the Respondent's Exceptions. Upon review of the Recommended Order, the arguments, and the complete record in this case, the Board makes the following determinations, findings, and conclusions.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' stipulations of fact, the following facts are found: At all times pertinent to the charges herein, respondent Harry J. Williams was acting under his State pilot's license number 0000047. The J. LOUIS, which respondent was piloting at the time of the subject incidents, is a foreign registered vessel required to be piloted by a State licensed pilot. Respondent graduated from the Merchant Marine Academy in 1943, and sailed on U.S. merchant ships continuously until 1962. He became a full-time licensed Tampa Bay pilot in 1962, and has never had disciplinary action taken against his license. Over the past three years, respondent has piloted about 300 ships a year, and about 25 percent of those trips have involved the Port Tampa Canal. The respondent had piloted the vessel J. LOUIS approximately ten to fifteen times prior to the incidents occurring on November 6 and 7, 1985. The J. LOUIS is a Liberian registered vessel which is 669 1/2 feet in length, with a beam of 90 feet. She was built in 1961, is single screw, steam turbine and backs to port. On November 6 and 7, 1985, the J. LOUIS had a forward draft of 33 1/2 feet and an aft draft of 33 feet. On November 6, 1985, at 2050 hours, respondent boarded the J. LOUIS off the sea buoy for the purpose of piloting her to the gypsum dock located on the Port Tampa Canal. It was his intent to arrive at the Port Tampa Canal on the high water slack tide which would have occurred between 12:30 and 12:45 a.m. on November 7, 1985. During the evening and morning hours of November 6 and 7, 1985, there were no adverse weather, wind or visibility conditions. Respondent made arrangements for the harbor tugs YVONNE and PALMETTO to assist him on his journey, and those tugs timely arrived toward the west end of G cut, about 1 1/2 miles from the G cut turn into J cut. The harbor tug PALMETTO is 105 feet in length, has a beam of 26 feet (30 feet with the ship docking tires), a 13 foot draft, and 3,300 horsepower. The dimensions of the harbor tug YVONNE were not described, but it had assisted ships the size of the J. LOUIS on prior occasions. Upon meeting the tugs in G cut, respondent ordered the PALMETTO to make up on the center chock of the stern of the J. LOUIS, and the YVONNE was ordered to make up on the port bow. The turn from G cut to J cut is a ninety degree turn from a westerly heading to a northerly heading. The tugs were directed to assist in making the turn. The YVONNE was ordered to come ahead full speed and get out on a ninety degree angle with the port bow. The PALMETTO was directed to push the starboard stern full ahead on a ninety degree angle. A tug is able to provide the greatest amount of assistance to a vessel when it is on a ninety degree angle with the vessel. The maximum vessel speed for a tug to make up at a ninety degree angle, and thereby provide the maximum amount of assistance, is three to four knots. While attempting to make the turn from G cut to J cut in Tampa Bay, the J. LOUIS ran aground at approximately 2355 hours. While it is impossible to determine the vessel's precise speed near the time of grounding, the average speed of the J. LOUIS from its turn from F cut into G cut until its grounding was somewhere between 8.2 and 12 knots. Respondent believed that he was going very slow, some 2 knots or less, when the bow of the J. LOUIS went aground. He felt that his vessel was sluggish coming to the right and that he was not getting full power from the tug YVONNE, perhaps because of mechanical problems. The captains of the YVONNE and the PALMETTO both felt that the speed of the J. LOUIS reduced their ability to get on a ninety degree angle so as to provide maximum assistance during the turn. The Captain of the PALMETTO estimated the speed of the J. LOUIS to be 6 knots when approaching the turn from G cut to K cut. The chief officer of the J. LOUIS felt that the speed of the J. LOUIS was faster than normal under the circumstances. The YVONNE was able to swing out only to a forty- five degree angle due to the speed of the J. LOUIS. The PALMETTO was able to get to a sixty degree angle. At the time of the grounding, and prior thereto, the engine of the YVONNE was working fine. It was only after the YVONNE attempted to unground the J. LOUIS from some eight or nine different positions over a period of several hours that the YVONNE suffered problems with its reduction gear. The reduction gear alarm on the YVONNE came on about 0210 hours. The evidence supports a finding that the cause of the grounding was the inability of the tugs to provide maximum assistance during the turning maneuver due to the excessive speed of the J. LOUIS. As noted above, tugs are increasingly ineffective as a ship's speed exceeds three knots. The speed of the J. LOUIS prevented the tugs from working on a ninety degree angle, thereby reducing their effectiveness in assisting with the turn. The J. LOUIS remained grounded at the west end of G cut for about two and a half hours. After the YVONNE developed a problem with its reduction gear, she was replaced by the more powerful tug TAMPA, which released the J. LOUIS within ten minutes by pushing on her stem. The J. LOUIS apparently sustained no damage as a result of the grounding. The tug TAMPA was christened in October of 1985. She is a twin diesel, 6000 horsepower tug, with twin propellers and ten rudders. The TAMPA is 100 feet in length, with a beam of 32 or 33 feet, a draft of 13 feet, and is considered the most powerful and maneuverable tug on Tampa Bay. Having been freed from the bottom at the west end of G cut at 0230 on November 7, 1985, the J. LOUIS, the TAMPA and the PALMETTO proceeded onward northerly up K cut toward Port Tampa. Although intending to arrive at the Port during the high water slack tide, the grounding delayed the arrival to about the time of maximum ebb tide. However, the predicted ebb tide of .54 knots was not particularly strong. The entrance to the Port Tampa Canal is 250 feet wide, and requires an almost ninety degree turn from K cut. Respondent directed the PALMETTO to push on the starboard stern and directed the TAMPA to position itself on the starboard bow of the J. LOUIS. However, the Captain of the TAMPA represented that since the TAMPA had flanking rudders, it could do just as well backing as pushing. He therefore suggested that the TAMPA be positioned on the port bow, thereby removing the necessity of shifting to that side once the ship got up to the slip. Respondent accepted that suggestion and the TAMPA was positioned on the port bow of the J. LOUIS at about 60 feet aft of the stem with one line. The line was some 10 inches in circumference and, initially, about 50 feet in length between the vessels. As respondent made the approach to the Port Tampa Canal, the J. LOUIS was travelling between four and six knots, again making it difficult for the assisting tugs to work on ninety degree angles. Perhaps to compensate for the anticipated ebb current, respondent's approach into the Canal was much closer to the north bank and its caissons than the normal approach. The tug TAMPA pushed on the port bow of the J. LOUIS until it became very close, as close as 10 feet, to the outer caisson (referred to locally as the "can opener"). Fearful that the TAMPA could be crushed between the J. LOUIS and that caisson, the Captain of the TAMPA ordered his crew to slack the line so that the TAMPA could slide back. The evidence is unclear as to whether respondent was informed that the TAMPA's line had been slacked, but respondent was informed by the TAMPA's Captain that the TAMPA was getting very close to the north bank and did not have much room. The TAMPA's deckhands slacked out approximately 150 feet of line to enable the TAMPA to clear the outermost caisson. This action positioned the TAMPA close to the midship house of the J. LOUIS. After clearing the caisson, the TAMPA crew began retrieving the line. It was impossible to manually retrieve the ten inch line, so the crew used the bow capstan. This was the first time it had been used and the line was new. About 50 feet of the line was retrieved when the TAMPA received an emergency order from the respondent to start backing full astern. The TAMPA began backing full astern. Although the TAMPA deckhands had taken four turns around the capstan drum and put two figure- eights on the H-bitts up front, the line slipped about four or five feet. The TAMPA had to then slow down while another figure-eight was placed on the bitt. The line then being secured, the TAMPA began backing again, but the J. LOUIS struck the Chevron dock. While the dock sustained substantial damage, the vessel J. LOUIS was not damaged as a result of the collision. There is no doubt that the slack in the line between the tug TAMPA and the J. LOUIS rendered the TAMPA less effective to assist in stopping the bow of the J. LOUIS from swinging starboard to the south. However, the evidence demonstrates that the TAMPA slacked the line in order to avoid hitting the caisson or being squashed between the caisson and the J. LOUIS. While there may have been other options available to the TAMPA, slacking the lines to avoid a collision with the caisson was not inappropriate or unreasonable given the close proximity of the caisson at the time that action was taken. At least five experienced crew members on the TAMPA, the PALMETTO and the J. LOUIS, all of whom had entered the Port Tampa Canal on previous occasions, believed that the J. LOUIS, piloted by the respondent, entered the Canal with more speed and closer to the north than is normal. The Master of the J. LOUIS was satisfied with respondent's piloting.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT respondent, Harry J. Williams, be found guilty of negligently piloting the vessel J. LOUIS on November 6 and 7, 1985, so as to cause it to run aground and to strike the Chevron loading facilities, and that, for such offenses, an administrative fine in the amount of $1,000.00 be imposed. Respectfully submitted and entered this 10th day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 10th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3935 The proposed findings of fact submitted by the petitioner and the respondent have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner 13. Partially rejected as contrary to the evidence. The tugs were unable to carry out respondent's orders due to the speed of the J. LOUIS. 30. Rejected as contrary to the evidence. Circumstances created by the respondent prevented respondent's orders from being carried out. Respondent 13, third sentence. Rejected as contrary to the evidence. 14 - 16. Rejected as contrary to the evidence. Partially rejected as contrary to the evidence. The tug TAMPA obviously encountered problems. Partially rejected. The greater weight of the evidence supports a finding that the initial entrance into the Canal was at a speed greater than normal. 37. Rejected as contrary to the evidence. 40, second sentence. Rejected. See Finding of Fact 15. 53. Accepted as being Coleman's testimony, but opinion rejected as contrary to the greater weight of the evidence. Rejected as contrary to competent, substantial evidence. Rejected; not supported by competent, substantial evidence. 58. Rejected as contrary to competent, substantial evidence. 60. Rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: David C. Banker, Esquire Shackleford, Farrior, Stallings & Evans, P.A. Post Office Box 3324 Tampa, Florida 33601 Nathaniel G. W. Pieper, Esquire Lau, Lane, Pieper & Asti, P.A. Post Office Box 838 Tampa, Florida 33601 Linda Biedermann, Executive Director Board of Pilot Commissioners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issues for disposition in this case are, first, whether the proposed adoption of Florida Administrative Code Rule 68D-24.017(1)(s) (the Proposed Rule) was based on the application of an unadopted rule, as defined in section 120.52(20), Florida Statutes, and, second, if it was not, whether the Proposed Rule is an invalid exercise of delegated legislative authority, as defined in section 120.52(8).
Findings Of Fact Stipulated Facts The initial Petition in this case was filed on May 21, 2021, and was timely filed concerning the Proposed Rule. The Proposed Rule relies on the Commission’s authority to establish slow-speed boating restrictions based on “vessel traffic congestion” in section 327.46(1), Florida Statutes. The Commission has adopted rules pursuant to chapter 120 that interpret and implement the term “vessel traffic congestion” as such term is used in section 327.46(1)(c) with regard to the establishment of slow-speed boating-restricted areas by municipalities and counties. The Commission has not adopted any rules pursuant to chapter 120 that interpret and implement the term “vessel traffic congestion” as such term is used in section 327.46(1), with regard to the establishment of slow- speed boating-restricted areas by the Commission.1 Petitioner is a not-for-profit organization created to promote and protect the sound growth of the marine industry in Palm Beach County for the benefit and education of its members, the community, and the environment. Petitioner also regularly advocates at the state and local level on issues of importance to its members, including opposing legislation and rules that negatively impact boating, such as unreasonable boating restrictions. A substantial number of Petitioner’s members, including individual boaters and marine sector businesses, utilize waterways in Palm Beach County including the area known as the Jupiter Narrows that is subject to the Proposed Rule. The Intracoastal Waterway (ICW) within Palm Beach County is traversed frequently by many of Petitioner’s members for business and 1 The Pre-hearing Stipulation also included, as a stipulated fact, that “[t]here is no statutory mandate that the Commission must adopt such rules.” Counsel for Petitioner indicated that was based on a misunderstanding of the scope of the stipulation, and it was withdrawn. pleasure, including that portion of the ICW within the area known as the Jupiter Narrows that is subject to the Proposed Rule. Petitioner’s members, as boaters, are regulated by the Commission and its rules regarding boating, including boating-restricted areas and slow-speed zones as would be imposed by the Proposed Rule. Facts Adduced at Hearing The Proposed Rule, in its entirety, is as follows: 68D-24.017 Palm Beach County Boating Restricted Areas. (1) For the purpose of regulating speed and operation of vessel traffic on the Intracoastal Waterway within Palm Beach County, Florida, the following boating restricted areas are established: (s) Jupiter Narrows 300 feet north of the SR 707 Bridge to 4290 feet north of the SR 707 Bridge. A slow speed, minimum wake zone to be in effect from 7:00 a.m. until 9:00 p.m. on Saturdays, Sundays, and those holidays identified in Rule 68D-23.103, in and adjacent to the Florida Intracoastal Waterway, shoreline to shoreline, bounded on the south by a line drawn perpendicular to the centerline of the waterway 300 feet north of the centerline of the SR 707 (Gomez Road) Bridge, and bounded on the north by a line drawn perpendicular to the centerline of the waterway 4290 feet north of the SR 707 (Gomez Road) Bridge as depicted in drawing S. Drawings A through R No change. Rulemaking Authority 327.04, 327.302, 327.46 FS. Law Implemented 327.302, 327.46 FS. History–New 10-6-10, . The sole basis for the Proposed Rule was the Commission’s determination that boating-restricted areas are necessary for the Jupiter Narrows due to “vessel traffic congestion.” The Commission has not adopted a rule by which it identifies standards for Commission-adopted boating-restricted areas based on “vessel traffic congestion.” Rather, Major Rowe testified that the Commission defines “vessel traffic congestion” for Commission-adopted boating-restricted areas by applying rule 68D-21.004, entitled “Criteria for Approval of Ordinances.” Rule 68D-21.004(3)(c) establishes the means and the required data for counties and municipalities to determine whether “unsafe levels of vessel traffic congestion, seasonal or year-round” warrant the adoption of local ordinances establishing slow-speed boating-restricted areas. The data used to determine vessel traffic congestion is specific and detailed. It is not simply an application of the dictionary definition of “congested.” Importantly, rule 68D- 21.004(3)(c) applies only to the establishment of local government ordinances. The rule does not, either expressly or by implication, apply to Commission- established boating-restricted areas. Major Rowe testified that there is no bright-line rule for establishing whether a waterway is subject to vessel traffic congestion, because waterways are not uniform. Rather, they vary by width, depth, tidal influence, time of day, and time of year, among other variables. The ICW extends through the Jupiter Narrows, with shallower waters extending to the shoreline on either side. Local governments do not have jurisdiction to regulate vessel traffic in the ICW. Major Rowe testified that a municipality requested that the Commission adopt a slow-speed rule for the Jupiter Narrows ICW since the municipality could not. In addition, the Commission received complaints from the public that boat traffic in the Jupiter Narrows was a danger to swimmers and other vessels in the area, though the nature and number of the complaints, in addition to their being hearsay, was not specified. Major Rowe testified that the Commission did not adopt a definition of “traffic” and “congestion,” “because it would have to be so general that it would be on the same level of what's already defined in the Webster's dictionary. The characteristic of the water being so varied, it would be very difficult, if not impossible, to have one single definition of congestion for every waterway in the state.” Nonetheless, the Commission was capable of adopting “one single definition of congestion” that local governments must apply for all of the various and varied waterways throughout the state. Furthermore, the Commission applied rule 68D-21.004(3)(c)’s “one single definition of congestion” to determine that Jupiter Narrows is experiencing vessel traffic congestion, warranting adoption of the Proposed Rule. In distinguishing how local governments are expected to determine “vessel traffic congestion” from how the Commission is expected to determine “vessel traffic congestion,” Major Rowe testified that section 327.46 does not establish specific standards by which the Commission is to determine “vessel traffic congestion.” Rather: It allows the people who do this every day in the FWC to make a decision based on what we do every day as opposed to a municipality that they might do this once every ten years. So, that’s why there’s a rule for the municipalities and the counties is because they are not in the waterway management business every day. We are. Thus, despite previously admitting that the Commission applies the local government vessel-congestion standards, Major Rowe testified that “we used our in-house expertise to make those determinations.” The logical extension of the Commission’s position is that any agency “in the business” of implementing and applying its enabling statutes would never have to adopt rules to govern and explain its actions since it operates under its expertise of applying those statutes “every day.” That is not a result contemplated or authorized by section 120.52(16) (“‘Rule’ means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency ”); section 120.54(1)(a) (“Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.”); or section 120.57(1)(e)1. (“An agency or an administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule. ”). The evidence established that, despite its assertion that it is bound by no obligation to adopt or comply with any written and adopted standards, the Commission has a policy by which it “holds itself to the same standard” that has been adopted for municipal and county ordinances in rule 68D-21.004 for determining whether a waterway experiences vessel traffic congestion sufficient to warrant the creation of a boating-restricted area. That policy is unwritten. Major Rowe testified that “[i]t's the way we've always operated. We've always used the rule that we developed for the cities and the counties in order to use that as our standard as well. We feel like it's the fair thing to do. That's the way we've always operated.” He further testified that all speed zone rules have met the rule 68D-21.004 standard. Thus, the evidence established that the Commission’s application of the rule 68D-21.004(3)(c) local government standards is of general applicability. The Commission’s policy of applying rule 68D-21.004(3)(c) standards is not adopted by rule, and is not otherwise available to the public in written form. However, Major Rowe testified that persons interested in the issue could simply call the Commission and find out how the Commission determines vessel congestion. Although Major Rowe candidly admitted that, depending on who answered the telephone, “[t]hey would maybe get a different delivery and answer wouldn't be verbatim. It's not a script that they would get that we used the rule that we've developed for the cities and counties to apply to our own rulemaking,” he felt confident that anyone inquiring would be able to ascertain that the Commission uses the local government rule to determine vessel congestion for the Commission’s boating-restricted areas. Nonetheless, he agreed that the purpose of adopting a rule is so that citizens do not have to call individual Commission employees to find out what standards the Commission applies to itself. Major Rowe also indicated that the Commission had “desk procedures” regarding how its planners process ordinances. Those desk procedures were, at the time of the hearing, under development, and do not address the creation of boating-restricted areas. Such procedures were not well described, and, in any event, are not generally available to the public. The evidence was conclusive that the Commission has a policy by which it applies rule 68D-21.004 in adopting its boating-restricted areas. It was equally conclusive that the policy is not written, and that the policy has not been adopted as a rule by the Commission. The Commission relied exclusively on the application of its policy to determine whether Jupiter Narrows experienced vessel traffic congestion sufficient to warrant adoption of the Proposed Rule. Despite the variability in waterways, the Commission was able to establish, by rule, statewide standards for counties and municipalities to apply in determining whether waterways in their varying jurisdictions are experiencing vessel traffic congestion. That is conclusive evidence that rulemaking to adopt standards for the Commission to apply in determining whether a waterway is experiencing vessel traffic congestion is feasible and practicable under section 120.54(1)(a). As to whether rulemaking is feasible, there is nothing to suggest that the Commission has not had sufficient time to acquire the knowledge and experience reasonably necessary to address standards to determine vessel traffic congestion by rulemaking; or that related matters are not sufficiently resolved to enable the Commission to address standards to determine vessel traffic congestion by rulemaking. As to whether rulemaking is practicable to provide fair notice to affected persons of Commission procedures and principles, criteria, or standards for determining levels of vessel traffic congestion sufficient to impose slow-speed boating-restricted areas, there is nothing to suggest that detail or precision in the establishment of those principles, criteria, or standards is not reasonable under the circumstances. Moreover, nothing suggests that the particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical outside of an adjudication.
Conclusions For Petitioner: D. Kent Safriet, Esquire Holtzman Vogel Baran Torchinsky & Josefiak, PLLC 119 South Monroe Street, Suite 500 Tallahassee, Florida 32301 Joseph Alexander Brown, Esquire Hopping Green & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 For Respondent Rhonda E. Parnell, Esquire Emily Norton, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner should be assessed for use taxes, interest and penalties related to the purchase of certain fuel-pumping equipment, on which sales tax was allegedly unpaid to the supplier. It must also be determined whether the placement of storage tanks, pumps, and appurtenant fueling equipment at the Destin Marina constituted a license or lease of the real property upon which that equipment was placed and, therefore, whether the $.15 per gallon fee paid to the marina owner for pumping and selling the Petitioner's fuel should have been the subject of sales tax or, conversely, whether the placement of the pumping equipment and fuel at the marina site was a bailment, for purposes of the rule cited below and, therefore, a non-taxable transaction.
Findings Of Fact The Petitioner, V.T. Leasing, at times pertinent hereto, was a partnership with partners, Mr. C. S. Valmus and George Threadgill. It was created at the request of Mr. William Ming, who was the owner of Destin Marina at times pertinent hereto. Mr. Ming had agreed to purchase marine fuels from the wholesale fuel dealership maintained by Mr. Valmus and Mr. Threadgill, but needed another entity to purchase and have installed the necessary tanks, pumps and appurtenances at his marina. Consequently, in order to effect their arrangement, a contract was drafted and executed between Mr. Valmus and Mr. Threadgill on behalf of the Petitioner herein, and Mr. Ming on behalf of the Destin Marina. That contract provided by its term that the Petitioner, the "supplier", and Destin Marina, the "buyer", would engage in a business relationship whereby the supplier agreed to furnish and install the equipment necessary for the buyer to be able to operate a marina fueling facility, including gasoline and diesel (fuel). The Petitioner agreed to furnish dispensers, hoses, tanks, piping, and related equipment and appurtenances necessary for self-service sales and to keep an adequate supply of fuel and inventory at the marina for sale to marina customers. Destin Marina agreed to use its best efforts to sell the fuel for which it would be paid a commission of $.15 per gallon for each gallon of fuel sold. The Petitioner agreed to check the tanks periodically and see that the tanks were kept filled and to determine the amount of gallons of fuel sold, whereupon the Petitioner would collect from Destin Marina all monies and valid credit card vouchers for the retail sales, less the $.15 commission due to the marina. The Petitioner was to retain ownership of the fuel, the money and credit card vouchers for fuel sold and would set the retail selling price for the fuel. The contract was to extend for five years from the date of its execution with extensions being provided for thereafter. The Petitioner, in the contract, was granted a right of ingress and egress to the marina property to deliver fuel, collect for fuel, and to remove any equipment not paid for under the terms of the contract. Destin Marina agreed not to encumber the equipment or consigned fuel inventory owned by the Petitioner. The Petitioner was responsible for reporting and paying all taxes on fuel sold. There is no dispute concerning any fuel taxes due in this proceeding. The agreement further provided that, should the marina be closed for 90 consecutive days, except due to an act of God, Destin Marina agreed to pay for the equipment at a schedule set forth in the agreement, if so demanded by the Petitioner. The amount due under that contingency for the first year would be $47,000.00 and declined every year thereafter to a valuation of $27,000.00 in the fifth year of the agreement's operation. At the end of the agreement's term, the equipment would become the property of Destin Marina, the Petitioner taking the position that due to exposure to the elements and salt water, at the end of five years, the equipment would be worth little to it. The Panhandle Pump Transaction In order to fulfill its responsibilities under the above-discussed agreement, the Petitioner purchased the pumps, tanks, piping, and other related equipment necessary to install the fueling station at the marina from the Panhandle Pump Company (Panhandle). The Petitioner produced at hearing various invoices showing gross dollar amounts paid to Panhandle for the equipment involved in this proceeding. Those invoices do not indicate whether any sales tax was paid to Panhandle on the purchase of the equipment. Prior to this hearing, the Respondent attempted to ascertain whether sales tax had been paid, and in what amounts, from the Petitioner and apparently made at least one inquiry of Panhandle in an effort to find out if sales tax had been paid to Panhandle, as well as the total amount paid for the equipment by the Petitioner. Witness Henderson, the auditor for the Respondent in this matter, established that he was unable to determine the original cost of the equipment paid to Panhandle by the Petitioner. In that event, the Respondent used the provision of Section 212.12(6)(d), Florida Statutes, as the basis for its audit, which provides that if the taxpayer cannot or does not supply original cost and tax information concerning a transaction, then the "best information available" may be used. During an audit, the Respondent is not required to inquire of third parties with respect to the tax liability of an audited taxpayer. This is because the auditor for the Respondent is not free to initiate an audit of a third party in order to confirm or deny information provided by the taxpayer. Any inquiry into another taxpayer's tax records can only be done under strict compliance with the confidentiality requirements in Section 213.053, Florida Statutes. The Respondent was unable to determine the price which the Petitioner paid for the equipment. The Respondent requested the information pertaining to the equipment price of the Petitioner and even requested a copy of the sales invoice for the pumps from Panhandle itself, but neither the Petitioner nor Panhandle ever supplied that information prior to hearing. During the hearing, the Petitioner's evidence in the form of the invoices only shows the gross amount paid for the equipment and does not depict what, if any portion of that, might have been sales tax. It does not show that sales tax was paid on the equipment. Only the Petitioner's testimony, through Mr. Valmus, asserts that the sales tax on the equipment was paid to Panhandle. Mr. Valmus states that he is certain that the prices shown on the invoice included sales tax, but he presented no substantiating evidence for that statement. Because the sales tax has not been shown to have been paid on the purchase of the tanks, pumps and other equipment from Panhandle, the Petitioner, the purchaser of the equipment, was assessed use tax. The Respondent, however, because the exact price could not be determined, used the valuation placed on the equipment in the first year "buy out" figure depicted in the agreement between the Petitioner and Destin Marina (Mr. Ming). That value of $47,000.00 is thus based upon the valuation of the equipment set by the parties to that agreement themselves. This valuation was the only readily identifiable figure by which to value the transaction between Panhandle and the Petitioner. It would be unreasonable to require the Respondent to supply the missing parts of the taxpayer's records, in order to arrive at a valuation figure for purposes of calculating tax due. This would encourage fraud and tax evasion if taxpayers were allowed to benefit from inadequate records. If in doubt, a taxpayer could simply lose or misplace records and propose a more advantageous number to the Respondent, and the Respondent would be forced to attempt to disprove that contention. The only records of this transaction, the receipts for the partial payments to Panhandle, support the conclusion that the tax was not paid. Section 212.01(2), Florida Statutes, requires that receipts for purchased items separately state the sales tax paid. Since this was not done, the Respondent concluded justifiably, in the absence of other records, that no sales tax was paid on the transaction. Consequently, it has assessed use tax on the Petitioner, the purchaser of the equipment from Panhandle. The Destin Marina Transaction Pursuant to the terms of the exclusive supply and purchase contract, referenced in the above findings of fact, the Petitioner agreed to furnish, install and maintain the fuel-pumping equipment to be located at the Destin Marina on property owned by the Destin Marina or Mr. Ming. The Petitioner also agreed to insure an adequate supply of fuel inventory at the marina for sale to boating customers. The Petitioner agreed to gauge the tanks every two weeks, determine the amount of gallons sold, and collect all monies and credit card vouchers, less the $.15 commission to be paid to the Destin Marina operator, Mr. Ming. The Destin Marina, Mr. Ming or his agents, were responsible for actually dispensing the fuel from customers and collecting monies or credit card vouchers from customers in payment for the fuel. The agreement further provided that at the end of the five-year period, the depreciated equipment would become the property of Mr. Ming and/or the Destin Marina. The Petitioner owned and depreciated the equipment on its books and records during the term of the agreement. Due to salt water corrosion, the equipment would be of little value after the five-year period. The Petitioner serviced and maintained the equipment subject to the agreement between it and Destin Marina. It never relinquished exclusive control of the equipment to the Destin Marina. The agreement between Destin Marina and the Petitioner specifically states that the "supplier" (the Petitioner) should at all times have the right of ingress and egress to the marina property to deliver fuel, collect for the fuel, or to remove any equipment not paid for under the conditions of the contract. The overall terms of the agreement show that the right of access, or "ingress and egress", for those purposes, also included the right for the Petitioner to come on the premises to service the equipment. The marina, however, operated the equipment during dispensing of fuel, on a day-to-day basis. Thus, the evidence shows that the two parties to the agreement had joint control over the equipment. The Respondent showed, through the testimony of its auditor, Mr. Henderson, that the amounts assessed against the Petitioner, at the time of hearing, were for use tax on the equipment of $2,820.00, and tax on the fuel commissions of $2,638.07, for a total of $5,458.07. A penalty was assessed in the amount of $1,364.52, and interest accrued through April 15, 1994 amounted to $3,174.48, for a grand total of $9,997.07, with interest accruing from April 15, 1994 at $1.79 per day. The use tax on the equipment referenced herein concerned the transaction involving the equipment purchase from Panhandle. The Respondent determined that the agreement between the Petitioner and Destin Marina, whereby the Petitioner would pay a $.15 commission per gallon to the marina, constituted a "license to use real property", pursuant to Section 212.031, Florida Statutes, and Rule 12A-1.007, Florida Administrative Code. Although the parties were not shown to have intended that this arrangement amount to a lease agreement, the Respondent interpreted the agreement in that fashion and assessed sales tax due on the $.15 per gallon commission amounts paid to Destin Marina, as if they were lease rental. This is related to the Respondent's position that the arrangement could not constitute a bailment because the Petitioner maintained control over the property for the life of the agreement, never gave up title to it, performed all maintenance and depreciated the equipment on its books and records during the five-year period of the agreement. Moreover, at the end of the agreement, the property would not revert back to the possession of the Petitioner but, rather, to the ownership and possession of the Destin Marina. Although it is not found that exclusive control of the equipment remained in the Petitioner, the parties did at least have joint control over the equipment, rather than exclusive control being delivered to the Destin Marina, the putative bailee.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Revenue upholding the assessment of V.T. Leasing for sales and use tax, as well as applicable interest and penalties, as set forth in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 2nd day of August, 1996. APPENDIX TO RECOMMENDED ORDER The Petitioner submitted no Proposed Recommended Order. Respondent's Proposed Findings of Fact 1-27. Accepted. COPIES FURNISHED: Mr. Constantine S. Valmus 12346 Ailanthus Drive Pensacola, FL 32506 Mark T. Aliff, Esquire Office of the Attorney General The Capitol - Tax Section Tallahassee, FL 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100
The Issue Is an Agency that settles a challenge to its denial of a license by agreeing to issue the license a "non-prevailing adverse party," as defined by section 120.595(1)(e)3., Florida Statutes (2019)? 1
Findings Of Fact The Commission denied an application by Mr. Lightsey for issuance of a Hunt Preserve License. A letter titled "Amended Notice of Denial" (Amended Notice), signed by Major Rob Beaton, Division of Law Enforcement, advised Mr. Lightsey that the Commission intended to deny his application. The Amended Notice included this dispositive paragraph: "Due to the facts stated above, pursuant to 68-1.010, F.A.C, your application for a HPL has been denied. We are processing your application fee for a refund, and you should receive it within 21 days." The Amended Notice also advised Mr. Lightsey of his right to request a hearing to challenge the intended decision. Mr. Lightsey challenged the proposed denial and requested a formal administrative hearing. Mr. Lightsey brought his challenge under section 120.57(1), which creates a right to a formal hearing to dispute a proposed agency action. The Commission referred the matter to the Division for assignment of an Administrative Law Judge and conduct of the hearing. The parties settled the licensing dispute before the hearing. Their settlement agreement provided for the Commission issuing each of the denied licenses. The parties' agreement also provided for severing the attorney's fees and costs claim, leaving it pending for the Division to resolve if the parties could not agree. The order closing the file in this case severed the fees and costs claim and reserved jurisdiction over it. The parties could not agree. The division re-opened the fees case as DOAH Case No. 19-5210F. This proceeding followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that The Florida Fish and Wildlife Conservation Commission enter its Final Order denying Petitioner's Motion for Fees and Costs under section 120.595, Florida Statutes. DONE AND ENTERED this 31st day of March, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2020. COPIES FURNISHED: Bert J. Harris, Esquire Swaine, Harris & Wohl, P.A. 401 Dal Hall Boulevard Lake Placid, Florida 33852 (eServed) Bridget Kelly McDonnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Sharmin Royette Hibbert, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The issues to be determined in this case are whether the amendments to the Town of Ponce Inlet Comprehensive Plan adopted by Ordinances 2008-01 (2008 Amendment) and 2010-09 (2010 Amendment) are "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact The Parties Petitioner, Pacetta, LLC, is a Florida limited liability company that owns real property in Ponce Inlet. Petitioner, Mar-Tim, Inc., is a Florida corporation that owns real property in Ponce Inlet. Petitioner, Down the Hatch, Inc., is a Florida corporation that owns real property in Ponce Inlet. Petitioner, Pacetta, LLC, controls and manages Mar-Tim and Down the Hatch. Petitioners' real property in the Town is directly affected by the challenged plan amendments. Petitioners submitted objections to the Town during the period of time beginning with the transmittal hearing and ending with the adoption of the challenged amendments. The Town of Ponce Inlet is a municipality in Volusia County that adopted a comprehensive plan in 1990 ("Town Plan"), which it amends from time to time pursuant to chapter 163, Florida Statutes. Petitioners' Property Petitioners' property is located on the north cut of the Ponce de Leon Inlet. The current uses on the property include a restaurant, a marina and boat repair yard with a marine travel lift, and vacant lands. An old cemetery is located on a portion of Petitioners' property. A shell midden (ancient refuse pile) is located on a portion of Petitioners' property. Petitioners' property has single family residences on three sides. A significant tree canopy is adjacent to Petitioners' property and large oak trees are on the property. A historic cemetery known as Pacetti Cemetery is near Petitioners' property. Several historic buildings are located near Petitioners' property. A museum and exhibit building are located nearby on Beach Street. Beach Street and Sailfish Drive are the main roads to access the Petitioners' property. These two roads have been designated by the Town as Scenic Roads. Petitioners' property comprises approximately 15 acres. About 2.4 acres are zoned for multifamily development. The remaining acreage is zoned Riverfront Commercial. There is also a special Riverfront Overlay District ("ROD") that covers Petitioners' property. Background There are at least three areas in the Town designated Riverfront Commercial. The Riverfront Commercial land use category permits wet boat storage, dry boat storage, boat sales and services, fishing charter boat dockage, fishing and boat equipment and supplies, seafood markets, restaurants, boatels, and boat construction and repairs. There is only one area in the Town designated ROD. In the ROD, land uses are more restricted. Dry boat storage facilities are allowed by special exception in Riverfront Commercial, but not within the ROD. The Town created the Riverfront Commercial District and the ROD in its Land Use and Development Code in 2004, but these land use categories were not identified in the Town Plan at that time. After the designation of the ROD in 2004, Petitioners began to acquire several parcels of land located within the ROD. The Town continued to engage its citizens in a visioning process for the Town's waterfront, which lead to the 2008 Amendment. As originally proposed, the 2008 Amendment allowed upland boat storage in the ROD under certain conditions in Future land Use Element ("FLUE") Policy 4.1.5. A citizens group obtained a sufficient number of signatures to place on the general election ballot a charter amendment to prohibit dry boat storage facilities in the ROD. Therefore, when the Town adopted the 2008 Amendment, it changed FLUE Policy 4.1.5 to prohibit dry boat storage facilities. Petitioners challenged the charter amendment in circuit court and the court determined that the charter amendment was invalid. The court also invalidated FLUE Policy 4.1.5, determining that the policy was only adopted to conform to the charter amendment. The circuit court decision was affirmed on appeal. Town of Ponce Inlet v. Pacetta, LLC, 63 So. 3d 840 (Fla. 5th DCA 2011). Petitioners also asked the circuit court to invalidate the ROD provisions of the Land Use and Development Code, but the circuit court declined to rule on their validity. Following the court's invalidation of FLUE Policy 4.1.5, the Town adopted the 2010 Amendment, which creates a new Policy 4.1.5. The new policy also prohibits dry boat storage facilities in the ROD. Petitioners' Objections Petitioners' overarching objection to the plan amendments is that they prohibit Petitioners from building a dry boat storage facility. Petitioners claim the prohibition is inconsistent with other policies of the Town Plan and is not supported by data and analysis. The term "dry boat storage facility" is not defined in the Town Plan. The Volusia County Manatee Protection Plan ("MPP"), which is adopted by reference in Coastal Management Element ("CME") Objective 1.6, defines dry boat storage facility as "an upland structure used for storing watercraft." Petitioners already store some boats on trailers or boat stands on the upland while they are being repaired or refurbished in the boatyard. The Town interprets the Town Plan to allow this type of upland storage in the ROD, citing FLUE Policy 4.1.4 of the 2008 Plan Amendment which explains that dry boat storage means "multiple level boat racks" in "fully enclosed buildings" and not the "[l]imited storage of boats on trailers or boat stands" in conjunction with boatyard operations. FLUE Policy 4.1.5 Petitioners' objections to FLUE Policy 4.1.5, which was adopted in the 2010 Amendment, are addressed first because the associated issues affect the other policies that have been challenged. FLUE Policy 4.1.5 states: The Town shall maintain a zoning overlay district over those Riverfront Commercial and High Density Multi-family Residential lands west of Sailfish Drive, south of Bounty Lane and north of the most southerly portion of Sailfish Drive to promote the water-oriented character of the River and compatibility with adjacent residential properties, to ensure protection of view corridors of the River and the tree canopy in the Front Street Area, and to preserve the historic setting and unique character of this area, including, but not limited to, the scenic roads of Beach Street and Sailfish Drive. Dry boat storage facilities shall be prohibited within this overlay district. Petitioners argue that the prohibition against dry boat storage facilities in Policy 4.1.5 conflicts with the MPP adopted by reference in the Town Plan because the MPP expresses a preference for dry slips over wet slips. The MPP includes a Boat Facility Siting Plan, which contains requirements that must be met for new or expanded marina facilities. The Plan requires the Town to place a priority on the development of boat slip capacity at or south of Ponce de Leon Inlet, to encourage marinas to include both wet slips and dry slips, and to "utilize dry storage to the fullest extent possible in addition to wet slips." The Boat Facility Siting Plan includes best management practices ("BMPs"). One of these BMPs is "Use of upland dry storage shall take precedence over the creation of new wet slips." The prohibition against dry boat storage facilities in the ROD will likely reduce the number of boats launched in the ROD because fewer boats can be accomodated in wetslips than in upland dry boat storage facilities.2/ This proposition was not rebutted by Petitioners. A major objective of the MPP is to reduce manatee injuries and deaths due to collisions with boats. The fewer boats, the fewer potential collisions with manatees. Therefore, the effect of the prohibition against dry boat storage facilities in the ROD is consistent with the objectives of the MPP. Dry boat storage facilities are allowed elsewhere in the Town. The design standards and BMPs in the MPP are described as permitting requirements, not as zoning or land use restrictions. The MPP does not state that all of its design standards and BMPs must be reflected in every permit issued by the Town, County, or State. It does not require, for example, that every marina must have more dry slips than wet slips. The MPP acknowledges that marina sites must conform to local land use and zoning regulations that affect the construction of new wet and dry slips. Under the Policy 4.1.5, utilizing dry storage to the fullest extent possible in the ROD means allowing upland storage of boats on trailers and boat stands in conjunction with boatyard operations. Petitioners also contend that Policy 4.1.5 is not supported by relevant and appropriate data and an analysis by the Town. The prohibition against dry boat storage facilities in the ROD is supported by data and analysis that shows that the noise, fumes, traffic, scale, and appearance of dry boat storage facilities is incompatible with residential uses and with scenic, historic, and natural resources nearby. Petitioners showed that some of the same incompatibility factors exist in other Riverfront Commercial areas, but the factors are not as numerous and pronounced as they are in the ROD. FLUE Policy 1.2.2(g) Petitioners challenge FLUE Policy 1.2.2(g), which limits the floor area for buildings within the Riverfront Commercial District (including the ROD) to 5,000 square feet. Petitioners argue that this limit is in conflict with CME Policy 1.6.6, which requires the Town to adopt and maintain a boat slip allocation program pursuant to which the Town made an allocation of 213 dry slips to Petitioners' property. As discussed in the Conclusions of Law, this argument cannot be raised in this proceeding because the 5,000 square- foot limit was already in the Town Plan before the 2008 Amendment. Petitioners argue that the floor area limit is subject to compliance review in this proceeding because its effect has been substantially altered by new provisions in the 2008 Amendment. The 2008 Amendment added a floor area ratio (gross floor area of buildings divided by upland lot area) limit of 35 percent for Riverfront Commercial, and an increase in floor area up to 10,000 square feet is made possible in a new Planned Waterfront Development District. However, these and other changes in the 2008 Amendment do not alter the fundamental effect of the existing floor area limit. The Town has adopted a boat slip allocation program as required by CME Policy 1.6.6. The allocation of 213 dry slips to Petitioners' property is not required by Policy 1.6.6 or by any other policy in the Town Plan. Petitioners cannot base a claim of internal inconsistency on matters that are external to the Town Plan.3/ Even if the floor area limit in FLUE Policy 1.1.1(g) is subject to compliance review, it is not inconsistent with the MPP for the same reasons that the prohibition of dry boat storage facilities in FLUE Policy 1.4.5 is not inconsistent with the MPP. FLUE Policy 4.2.4 Policy 4.2.4 of the 2008 Amendment states that, in developing design standards for a new Planned Waterfront Development District, limited exceptions might be allowed to the floor area limit of 5,000 square feet, up to 10,000 square feet, but this exception will not apply to dry boat storage facilities. No Planned Waterfront Development District has yet been created in the Town. Despite Petitioners' objection to the 5,000 square- foot floor area limit generally applicable in Riverfront Commercial, Petitioners argue that there is no data and analysis to support the Town's allowance for an increase in the floor area limit to 10,000 square feet in a Planned Waterfront Development District. The knowledge of what a 5,000 square foot or a 10,000 square foot building looks like is all the data needed to set a limit based on scale. CME Policy 1.6.6 CME Policy 1.6.6 of the 2008 Amendment states: The Town shall maintain and enforce its boat slip allocation program. This program shall provide for equitable allocations of new wet and dry slips. Upland slips may be permitted under this allocation program if they can meet the requirements of the Comprehensive Town and the Town Codes. Upland/dry slips development shall be balanced against other community policies, including neighborhood compatibility and visual impacts. Dry slips shall not take precedence over wet slips based solely on environmental concerns. Petitioners contend that Policy 1.6.6 conflicts with the building size limitations in FLUE Policies 1.2.2(g) and 4.2.4 and with the prohibition against dry boat storage facilities in FLUE Policy 4.1.5 because the size limits and prohibition do not allow for the balancing called for in Policy 1.6.6. Petitioners are interpreting the policy more literally than the Town. Things are not going to be placed on scales and made to balance in the middle. The Town interprets the policy to direct the Town to consider competing policies according to their relative importance. In Riverfront Commercial areas other than the ROD, there can be combinations of wet and dry slips, including dry boat storage facilities, but the floor area limit of 5,000 square feet is a "community policy" that will also apply to affect the outcome of the balancing. In the ROD, the prohibition against dry boat storage facilities is another community policy that must be applied. The Town has established a community policy to prohibit dry boat storage facilities in the ROD because the Town has determined that such facilities do not harmonize with nearby residential uses and scenic, historic, and natural resources. Data and analysis support this determination. Although Petitioners got a Town witness to testify that a prohibition does not allow for balancing, the record shows that the Town gives no weight to the desirability of dry boat storage facilities in the ROD and some weight to the desirability of wet slips, so that the scales always tip in favor of wet slips and for boats on trailers or boat stands in a boatyard. Petitioners contend that the statement in FLUE Policy 1.6.6 that "Dry slips shall not take precedence over wet slips based solely on environmental concerns," is directly in conflict with the MPP, because the MPP states a preference for dry slips based specifically on environmental concerns (manatees). However, the meaning of the policy statement is that environmental concerns, alone, will not determine how many dry slips are allowed. Other concerns will be taken into account in determining how many dry slips are allowed. That is not inconsistent with the MPP. Recreational and Working Waterfronts Petitioners contend that the floor area limit in FLUE Policy 1.2.2(g), the prohibition against dry boat storage facilities in FLUE Policy 4.1.5, and the floor area limit for dry storage facilities in FLUE Policy 4.2.4 are inconsistent with section 163.3177(6)(a)3.c., which requires a FLUE to include criteria to "[e]ncourage preservation of recreational and commercial working waterfronts for water-dependent uses in coastal communities." The term "recreational and commercial working waterfronts," is defined in section 342.201(2)(b): "Recreational and commercial working waterfront" means parcel or parcels of real property that provide access for water- dependent commercial activities or provide access to the public to the navigable waters of the state. Recreational and commercial working waterfronts require direct access to or a location on, over, or adjacent to a navigable body of water. The term includes water-dependent facilities that are open to the public and offer public access by vessels to the waters of the state or that are support facilities for recreational, commercial, research, or governmental vessels. These facilities include docks, wharfs, lifts, wet and dry marinas, boat ramps, boat hauling and repair facilities, commercial fishing facilities, boat construction facilities, and other support structures over the water. There is no current use of Petitioners' property that is prohibited by the challenged amendments. In other words, Petitioners' working waterfront is preserved. To the extent section 163.3177(6)(a)3.c. should be interpreted more broadly to encourage not only preservation, but also economic vitality through further development and redevelopment of waterfronts, the Town has adopted FLUE criteria to encourage their development and redevelopment. The floor area limit and the prohibition against dry boat storage facilities in the ROD do not prevent Petitioners from further developing their working waterfront to add or expand uses. Evaluation and Appraisal Petitioners challenge FLUE Policies 1.2.2(g) and 4.2.4 and CME Policy 1.6.6 as constituting a failure of the Town to update its plan to address the changes needed as identified in the Town's Evaluation and Assessment Report ("EAR"). Petitioners failed to prove that the Town did not make the changes identified in the EAR. Summary Petitioners failed to prove beyond fair debate that the 2008 Amendment or the 2010 Amendment create internal inconsistency in the Town Plan. Petitioners failed to prove that the 2008 Amendment or the 2010 Amendment is not supported by relevant data and analysis. Petitioners failed to prove beyond fair debate that the 2008 Amendment or the 2010 Amendment is not in compliance.
Recommendation Based on foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the plan amendments adopted by Town Ordinances 2008-01 and 2010-09 are in compliance. DONE AND ENTERED this 20th day of March, 2012, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 20th day of March, 2012.
The Issue Whether Petitioner, Miami Yacht Divers, Inc., is entitled to reimbursement for cleanup costs.
Findings Of Fact The Respondent is the state agency charged with the responsibility of administering claims against the Florida Coastal Protection Trust Fund. Petitioner is a company located in Dade County, Florida, which performs commercial diving operations. Such operations include oil pollution containment and clean-up. At all times material to the allegations of this case, Dan Delmonico was the principal officer or owner for the Petitioner who supervised the operations of the company. In April of 1993, Mr. Delmonico discovered a fuel discharge next door to the premises of Defender Yacht, Inc., a company located on the Miami River in Dade County, Florida. The source of the discharge was an abandoned sunken vessel. This derelict vessel had no markings from which its ownership could be determined. Upon discovering the vessel, Mr. Delmonico did not contact local, state, or federal authorities to advise them of the discharge. Instead, Mr. Delmonico contacted several colleagues whose help he enlisted to assist him to clean up the discharge. In this regard, Mr. Delmonico procured the services of a diver and a crane company to remove the vessel from the water. Additionally, Mr. Delmonico utilized a boom and oil absorbent clean-up pads to remove the discharged fuel from the water. In total, Mr. Delmonico maintains it took four work days to complete the removal of the discharge and the salvage of the derelict vessel. At no time during this period did Mr. Delmonico contact local, state, or federal authorities to advise them of the foregoing activities. No official from any governmental entity supervised or approved the clean-up operation or salvage activity which is in dispute. After the fact Petitioner filed a reimbursement claim with the United States Coast Guard. Such claim was denied. Upon receipt of such denial, Petitioner filed the claim which is at issue in the instant case. In connection with this claim with Respondent, Petitioner submitted all forms previously tendered to the Coast Guard including the standard claim form, labor receipts, rental receipts, supply receipts, trailer and storage receipts, cash expenses, a job summary, and photographs. On or about September 20, 1996, Respondent issued a letter denying Petitioner's claim for reimbursement for expenses associated with the above-described salvage and clean-up activities. The grounds for the denial were the Petitioner's failure to obtain prior approval for the activities and the absence of "good cause" for the waiver of prior approval. Additionally, the Respondent maintained that Petitioner had failed to provide evidence that a pollutant discharge existed and that the removal of the vessel was necessary to abate and remove the discharge. It is undisputed by Petitioner that prior approval for the clean-up activities was not obtained. Petitioner timely disputed the denial and was afforded a point of entry to challenge such decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's claim for reimbursement. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathelyn M. Jacques Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 N. Paul San Filippo, Esquire Seidensticker & San Filippo Parkway Financial Center 2150 Goodlette Road, Suite 305 Naples, Florida 34102
The Issue Whether Building permit no. 93-2-4072 issued to Respondents William Lledo, Owner, and Key Marine Equipment, Inc., General Contractor by Monroe County violated Monroe County Comprehensive Plan provisions and Land Development Regulations.
Findings Of Fact On April 28, 1996, Petitioner, Department of Community Affairs (Department), received Monroe County Permit 93-2-4072 issued to Respondents, William Lledo (Lledo) and Key Marine Equipment, Inc., to construct a seawall with a five-foot wide cap which would serve as a docking facility. The project is proposed to be constructed on an undeveloped piece of real property owned by Lledo. The property is known as Lot 37, Sombrero Anglers Club South Subdivision, Boot Key, Monroe County, Florida. The property is located within the Keys Area of Critical State Concern. The proposed seawall/dock will not be supported by pilings or other supports and will not act to stabilize a disturbed shoreline. The shoreline at the subject property is not eroding. An eroding shoreline shows signs of the water undercutting the shoreline and contains no vegetation on the shoreline and submerged shelf. The subject property’s shoreline and adjacent submerged shelf are vegetated. The project will not be replacing a deteriorating seawall or bulkhead. The project, as proposed, requires the placement of fill in a manmade canal below the mean high water line. No principal use or structure has been established on the property nor is there any plan to construct a principal use on the property.
The Issue Whether the vessel ("Imagine") owned by Petitioner, William Hackett ("Petitioner"), is a "derelict vessel" within the meaning of section 823.11, Florida Statutes (2019); and, therefore, subject to the provisions of sections 376.15(3), 823.11, 705.101(3), and 705.103, Florida Statutes.
Findings Of Fact On January 4, 2020, Officer Glen Way, a sworn FWC law enforcement officer, was on water patrol in an FWC patrol vessel within the public waters of Key West Harbor in Monroe County, Florida, when he observed a vessel (a 32-foot 1967 Hatteras known as "Imagine") sunken and nearly 90% submerged. There were no persons on board and the vessel looked abandoned. The electrical, propulsion, steering systems, and engines were well under sea water and inoperable. Based on his investigation, Officer Way concluded that the vessel suffered a severe marine casualty, had been discarded as sunk with no intrinsic value, and was derelict. His investigation further revealed that the vessel was owned by Petitioner. On January 8, 2020, Officer Way spoke with Petitioner and explained to him the derelict vessel process. That same day, Officer Way emailed Petitioner an Acknowledgement of Receipt of Documentation Related to A Derelict Vessel Determination. Subsequently, Petitioner had the vessel raised from being sunken and tied to a commercial salvage barge with a crane. Although the vessel was no longer sunk, it had been sunk for over two months and Officer Way observed that no corrective action had been taken by Petitioner to correct the systems. Significantly, Officer Way observed that the vessel’s propulsion and steering systems were still inoperable, the onboard engine was substantially corroded, and marine growth was visible along the waterline of the entire vessel. In addition, windows were boarded up with plywood, blocking the ability to safely navigate or operate the vessel upon the water. Officer Way also observed a 25-horsepower outboard motor affixed to the transom of the vessel. However, Officer Way persuasively and credibly testified that a 25-horsepower outboard motor is insufficient to propel the vessel safely upon the public waters of the State of Florida. In sum, the vessel was still wrecked, junked, substantially dismantled, and derelict. Subsequently, on July 28, 2020, and at 8:30 a.m. on August 13, 2020, Officer Way observed that the vessel was again sunk, inoperable, abandoned, left, wrecked, junked upon the public waters of the State, and derelict. The vessel has no intrinsic value. At the hearing on August 13, 2020, Petitioner candidly acknowledged that the vessel was again sunk and not operational.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order finding Petitioner’s vessel, "Imagine," derelict under section 823.11, abandoned under chapter 705, and subject to the provisions of sections 376.15(3), 823.11, 705.101(3), and 705.103. DONE AND ENTERED this 28th day of August, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 28th day of August, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) William Hackett 419 Southard Street Key West, Florida 33040 Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
Findings Of Fact In his application for registration as a real estate salesman submitted August 21, 1972 (Exhibit 1), Respondent, in response to Question 9 which asked if he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, answered yes and listed "1958 W. Va--traffic, 1964 So. Carolina-Traffic, 1/16/70 Fla--Traffic, 6/2/71 Fla--Traffic, and 9/17/71 Fla-- Traffic." In his application for registration as a real estate broker submitted February 4, 1972 (Exhibit 3), Respondent answered the same Question 9 exactly as he had done on his application for salesman. Court records from South Carolina (Exhibit 2) show that Ernest Clyde Bourne, Jr., was arrested on a warrant charging him with stealing a boat and trailer of the value of more than $200; that on November 30, 1964, he posted an appearance bond in the amount of $9,000; that he was indicted on March 3, 1965, on an indictment alleging that Bourne, on August 12, 1964, at Georgetown, S.C., feloniously did steal, take and carry away one 25 foot Bertran boat and one six wheel trailer of the value of more than fifty dollars the proper goods and chattels of Earnest Mohler, Jr.; and that on September 21, 1965, he pleaded nolo contendere to receiving stolen goods, the Court entered judgment that he be confined for six months or pay a fine of $500, and that the fine was paid on September 21, 1965. In his defense, Respondent testified that, prior to acquiring the boat he was charged with stealing, he had owned two or three boats, the last of which was destroyed in a fire while at a Princeton, West Virginia, storage during the winter of 1964; and that he was looking for a replacement for the boat. While enroute from his home in Princeton to Myrtle Beach, South Carolina, he stopped at Columbia, South Carolina, to visit a boat yard and, while looking at a boat, was approached by a person representing himself as a salesman. The salesman told him that he knew of a 25 foot Bertram boat in an estate that may be for sale. When Bourne showed interest, he advised that he would know in about a week and Bourne was to call him. In due course, Bourne called the "salesman" who said he had the boat and arranged for Bourne to pick up the boat at Columbia. The address at which Bourne came for the pick up was a corner containing a Texaco station and a wrecked car lot. After inspecting the boat Bourne paid $5,000 cash and executed a lien on a trailer for $2,300. No record was subsequently found that the lien had been recorded and Bourne retained no copy. Bourne towed the boat and trailer to his home in West Virginia where the boat was registered and used by Bourne during the remainder of the summer. At this time Bourne was enrolled at Stetsen Law School in Florida, where his mother resided. Bourne returned to West Virginia in November, 1974, and enroute back to Florida with the boat in tow, he was stopped by the police and arrested at Orangeburg, South Carolina, and charged with larceny of the boat. The sheriff from Georgetown, South Carolina, picked up and drove Bourne to Georgetown where he spent the weekend in jail awaiting the posting of bond. At his trial in September, 1965, Bourne appeared, represented by his lawyer from West Virginia, and a South Carolina attorney. The attorneys arranged for a nolo contendere plea which Bourne entered under the impression he was pleading to an attempt to commit a misdemeanor. Exhibit 4, the deposition of the attorney who represented Bourne at the trial, confirmed that Bourne pleaded nolo contendere to an attempt to commit a misdemeanor in a negotiated plea worked out with the prosecuting attorney. Although the attorney characterized the charge to which Bourne pleaded as "no offense," the negotiated settlement included a $500 fine. This was described in the deposition as a forfeiture of a $500 bond (apparently connected to the $5,000 appearance recognizance previously entered to get Bourne released from jail) and as "the [law] firm check in the amount of $500 which was left with the clerk of the court when the clerk presented a blank form for Bourne to sign. It is presumed the "blank form" subsequently became the judgment page of Exhibit 2 on which Bourne plead nolo contendere to receiving stolen goods and the judge signed the sentence to be confined at hard labor for six (6) months or pay a fine of five hundred dollars ($500).
