21-000242 Gary Janikula vs. Lee County Sheriff's Office-Derelict Vessels Status: Closed Recommended Order on Friday, April 30, 2021.

Summary: Respondent proved by clear and convincing evidence that Petitioner's houseboat was a "derelict vessel" within the meaning of section 823.21(1).

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

G ARY J ANIKULA ,

Petitioner ,

vs. Case No. 21 - 0242

L EE C OUNTY S HERIFF ' S O FFICE - D ERELICT

V ESSELS ,

Respondent .

/

R ECOM MENDED O RDER

Pursuant to notice to all parties, Administrative Law Judge Lynne A.

Quimby - Pennock of the Division of Administrative Hearings ( Ñ DOAH Ò )

conducted an evidentiary hearing by Zoom conference from Tallahassee,

Florida, on March 4, 2021.

A PPEARANC ES

For Petitioner: Gary Scot Janikula , pro se

132 Tropical Shore Way

Fort Myers Beach, Florida 33931

For Respondent: Antonette D. Hornsby, Esquire

Lee County SheriffÔs Office

14750 Six Mile Cypress Parkway

Fort Myers , Florida 33913

S TATEMENT OF T HE I SSUE

Whether the Lee County SheriffÔs Office (ÑLCSOÒ or ÑRespondentÒ)

correctly determined that a vessel owned by Gary Janikula ( Ñ PetitionerÒ) was

a Ñderelict vesselÒ or an Ñabandoned vesselÒ on the waters of the state o f

Florida, within the meaning of section 823.11, Florida Statutes (2020), and

therefore, subject to the provisions of sections 376.15, 705.101, 705.103, and

823.11 , Florida Statutes (2020).

P RELIMINARY S TATEMENT

On December 8, 2020, Deputy Tony Smith from RespondentÔs Derelict

Vessels Unit handed Mr. Janikula a Florida Uniform Boating Citation

#542737 , 1 regarding his Ñderelict vessel, [a] 1995 35 - foot white Amer [sic]

houseboat #FL3396HP.Ò Mr. Janikula acknowledged receipt of:

¤A letter notifying [him] th at [his] vessel has been

determined to be derelict (2 pages);

¤An Explanation of Rights to an administrative

proceeding on the determination that [his] vessel is

derelict (1 page);

¤An Election of Rights [ÑEORÒ] Form (2 pages); and

¤A Petition for an Administrative Proceeding

(2 pages).

Through an executed EOR form and a Petition for Administrative

Proceeding, each dated December 24, 2020, Mr. Janikula requested an

administrative hearing, disputing that:

Vessel is not derelict, abandoned, sunk. Vesse l was

temporally placed in shallow water near a sandbar

to accomplish repairs sustained from Tropical

Storm ETA on 11 - 11 - 2020.

On January 19, 2021, LCSO referred the matter to DOAH. Although an

Initial Order was issued on January 22, 2021, seeking input from both

1 This citation contained Lee County Court C ase N umber 20 - 564291/W4 and was for a

criminal violation which required a court appearance. This is an administrative proceeding.

The undersigned was not advised of and has not relied on an y action taken by the Lee

County Court.

parties to facilitate the hearing, neither party provided any of the requested

information.

A Notice of Hearing by Zoom Conference (ÑHearing NoticeÒ) and an Order

of Pre - hearing Instructions (ÑOPIÒ) were issued to both parties on February 2,

2 021.

The final hearing was scheduled for and completed on March 4, 2021.

Mr. Janikula appeared and testified on his own behalf. Mr. Janikula did

not offer any exhibits during the hearing. 2 LCSO presented the testimony of

Deputy Smith and Deputy Adam Win ton. RespondentÔs Exhibits A through

G 3 were accepted into evidence without objection.

At the end of the hearing, the parties were informed of the ten - day

timeframe provided by rule for filing proposed recommended orders (ÑPROsÒ),

running f ro m the later o f the filing of the transcript at DOAH or the close of

the hearing. When asked if the ten - day deadline would be sufficient,

Mr. Janikula requested 14 days to file the post - hearing submission.

Respondent did not oppose the request, and it was granted.

On M arch 17, 2021, an electronic version of the one - volume Transcript of

the proceeding was filed with DOAH. 4 On March 18, 2021, a Notice of

2 During his testimony, Mr. Janikula repeatedly testified he could take pictures later in the

day and provide them. Both the Hearing Notice and OPI provided directions on how to

provide timely exhibits for the hearin g.

3 On February 17, 2021, LCSO electronically filed its Witness and Exhibit List. LCSO

electronically filed its exhibits. The actual exhibits were filed on March 5, 2021. RespondentÔs

Composite Exhibit B contained two Florida Uniform Boating Citations, a nd RespondentÔs

Composite Exhibit G contained 12 photographs of PetitionerÔs vessel and the LCSO Ôs

ÑNOTICEÒ that was attached to PetitionerÔs vessel on December 8, 2020.

4 O n March 1 9 , 2021 , the ÑhardÒ copy transcript was filed.

Deadline for Filing Proposed Recommended Orders was issued, establishing

March 31, 2021 , as the date for filing the PRO s . Respondent filed its PRO on

March 30, 2021.

On March 31, 2021, Mr. Janikula filed a letter requesting an extension of

time for him Ñto get completed, what is needed to satisfy the issues in this

case.Ò The undersigned equated this request to Mr. Janik ulaÔs need for

additional time to prepare and file his PRO. Mr. JanikulaÔs letter failed to

specify how much time was needed, but it did provide that RespondentÔs

counsel did not oppose the request. The request was granted 5 and

Mr. Janikula was directed to file his PRO no later than 5:00 p.m. on April 16,

2021.

On April 16, 2021, Mr. Janikula submitted a one paragraph letter

accompanied by six photographs of his pontoon houseboat. Because the letter

did not reflect that copies of the letter and photograph s were sent to LCSO, a

Notice of Ex Parte Communication was issued. To the extent that

Mr. JanikulaÔs letter contained a recitation of or advocacy of information

presented at the hearing, that information has been considered. However,

because the photograp hs were not offered nor admitted into the record during

the hearing, nor subject to examination by LCSO during the hearing, the

undersigned has not considered them.

Further, to the extent that either PRO contained hearsay evidence not

supported by direct testimony or evidence, or contained information that was

not subjected to cross - examination during the hearing, that information has

not been considered.

5 Mr. JanikulaÔs letter w as filed after 4:15 p.m. on March 31, 2021. The Order Granting

Extension of Time was issued the following morning.

Any references to Florida Statutes, administrative rules, or LCSOÔs rules

are to the versions in ef fect at the time of the allegations, unless otherwise

indicated.

F INDINGS OF F ACT

Based on the competent substantial evidence adduced at the final hearing,

and the record as a whole, the following Findings of Fact are made:

1. Mr. Janikula is the register ed owner of a 35 - foot pontoon houseboat , 6

registration number FL3396HP ( Ñ pontoon houseboat Ò ) , found in the public

waters of Lee County, Florida.

2. LCSO is empowered to remove, or cause to be removed, derelict vessels

from FloridaÔs public waters. §§ 376.1 5(3)(a) and 823.11(3), Fla. Stat. A vessel

is considered to be ÑderelictÒ if it is left, stored , or abandoned Ñ[ i ] n a wrecked ,

junked, or su bstantially dismantled condition upon any public waters of

Florida. Ò § 823.11(3), Fla. Stat.

3. Adam Winton is a swo rn law enforcement officer (ÑLEOÒ) working as a

Deputy Sheriff for Respondent. Prior to joining Respondent, Deputy Winton

was employed by the Florida Fish and Wildlife Conservation Commission

(ÑCommissionÒ).

4. The Commission is the primary state agency r esponsible for derelict

vessel enforcement identification and investigation. Deputy Winton received

Ñongoing training, as well as [law enforcement] academy training in derelict

vessel investigations,Ò and he has been assigned to Ñdisaster areas several

tim es for the sole purpose of conducting derelict vessel identification.Ò

5. Deputy Smith has been a LEO for 23 year s. Deputy S mith has been

with Respondent Ôs marine unit for nine years . In addition to his four - year

6 Generally, this type of pontoon boat operates with a motor on each hull .

degree from Florida State University, he has completed 16 hours of derelict

vessel investigation training.

6. When a derelict vessel investigation is begun, the LEO starts by

identifying the owner of the vessel and find ing out the ownerÔs intentions for

the vessel. The derelict vessel investiga tion then determines three things: the

vessel is Ñwrecked;Ò Ñjunked;Ò or Ñsubstantially dismantled.Ò

7. A vessel is Ñwrecked when it does not have the ability to extract itself

absent some mechanical assistance ; Ò it might be sunk or grounded.

8. A vessel is ÑjunkedÒ when it is substantially stripped of components, the

vessel has been discarded, or it could also be sunk.

9. A vessel is Ñsubstantially dismantledÒ if the vessel does not have the

power to be steered, there are parts missing from the vessel, or the vesselÔs

integrity itself is compromised.

10 On August 16, 2020, Deputy Winton was working the marine patrol

detail in the public waters of Lee County, Florida. While on that patrol,

Deputy Winton observed Mr. Janikula Ôs pontoon houseboat in Matanz as

Pass 7 in Lee County, Florida.

11. Deputy Winton observed the pontoon houseboat Ñlisting [leaning]

significantlyÒ and the Ñright [starboard] hull had been compromised.Ò He

observed the right hull did not Ñhave an effective means of dewatering ...

[and] itÔs been in the state for quite some time.Ò Although the pontoon

houseboat appeared to be floating, Deputy Winton testified the Ñstarboard

hull was in shallow water so itÔs possible it was resting on the bottom.Ò The

pontoon houseboat Ôs starboard hull was low in the water while the port (left)

side was much higher out of the water, demonstrating the vesselÔs listing.

12. Deputy Winton also observed that the Ñinterior cabin areas were

breached and open to the elements.Ò Several Ñcabin windows and doors were

7 Matanzas Pass is within Estero Bay, Lee County, Florida.

either open, broken, or missing,Ò allowing air, rain , or salt water into the

pontoon houseboat .

13. Further, Deputy Winton observed the pontoon houseboat did not

Ñappear to have any sort of steering device.Ò He observed that although this

pontoon hous eboat was supposed to be equipped with two motors, the

starboard motor was missing and the port motor had Ñdamage to the cowling

area [and] the bottom part was very corroded.Ò The port motor was Ñcracked

in the back and everything [was] corroded on it.Ò De puty Winton determined

the port motor was an inoperable outboard engine. The Ñcables and different

control mechanisms that run to where the [other] engine should be or where

any sort of steering should be were broken, discarded, just hanging into the

water .Ò

14. As a result of all that he observed, Deputy Winton issued a Florida

Uniform Boating Citation V297371 8 to Mr. Janikula . In addition to including

Mr. JanikulaÔs identification information, and the date, time, and location of

the pontoon houseboat, the citation included the following description of the

p ontoon h ouseboat as Ñat - risk of becoming derelict.Ò

15. Deputy Winton testified that this Ñat - riskÒ citation Ñis usually used as

a sort of warning or sort of means to get somebody to fix a problem before it

escalates to the point where they are issued a criminal charge for derelict

vessel and a removal process is initiated.Ò

16. In late November 2020, over three months after Deputy Winton issued

the Ñat - riskÒ citation, Deputy Smith observed the p ontoon h ouseboat partially

submerged in Estero Bay in Lee County, Florida. Deputy Smith observed the

pontoon houseboatÔs pontoons under water, and the vessel was Ñhard

agroundÒ in three feet of water.

8 This citation contained Lee County Court C ase N umber 20 - 396456/W4 and was for a n

infraction which did not require a court appearance , but the payment of a fine within

30 days . This is an administrative proceeding. The undersigned was not advised of and has

not relied on any action taken by the Lee County Court.

17. Deputy Smith began an investigation of the pontoon houseb oat,

looking to determine if it met the criteria for a derelict vessel. Deputy Smith

spoke with Mr. Janikula about the condition of his pontoon houseboat, and

what his intentions were for it.

18. In early December 2020, Deputy Smith observed the partially

submerged pontoon houseboat, and again spoke with Mr. Janikula.

19. On December 8, 2020, Deputy Smith again observed the partially

submerged pontoon houseboat in Estero Bay. He saw the pontoon houseboat

Ñwas definitely in [a] wrecked condition ... sitting on the bottom. And it did

not have the ability to remove itself.Ò T he pontoon houseboat was sitting on a

sandbar in two - to - three feet of water, and it was listing to the starboard side

because the starboard pontoon was full of water.

20. Deputy Smith als o observed that the pontoon houseboat was missing

the starboard motor and the port motor was inoperable. The cables, necessary

to connect the two motors for steering, were Ñdegraded, rotting, and laying in

the water.Ò Deputy Smith observed the Ñthrottle me chanism was rusted and

degraded and, ... not in very good shape.Ò The pontoon houseboat could not

move on its own.

21. As a result of his observations, Deputy Smith located Mr. Janikula ,

and provided him a Florida Uniform Boating Citation, V542737. This c itation

includ ed Mr. JanikulaÔs identification information, and the date, time, and

the location of the pontoon houseboat . Additionally , the citation included the

description th at th e pontoon houseboat was an ÑABANDONED AND

DERELICT VESSELS [sic].Ò Mr. Jan ikula acknowledged receipt of the

derelict vessel citation and the information described in the first paragraph of

the Preliminary Statement above.

22. LCSO provided photographic evidence (RespondentÔs Composite

Exhibit G) of the condition of the pontoon h ouseboat between December 2020

and February 2021. A brief description of each photograph is provided:

G - 1: The front of the pontoon houseboat is listing to the starboard side,

with barnacles exposed on the port hull, rub railing is broken, and port

side is missing windows;

G - 2: T he front of the pontoon houseboat is listing to the starboard side ,

with barnacles exposed on the front port bow ;

G - 3: The pontoon houseboat registration number is visible, barnacles on

the port side exposed pontoon above the wate r line are visible, rub

railing is broken and coming apart, windows are broken out, and the

LCSOÔs Notice is visible;

G - 4: Starboard lower back side panel is shredded, hatch cover is

missing, starboard motor is missing, throttle cables are unattached and

h anging in the salt water;

G - 5: Starboard stern close - up of the damaged steering position, throttle

cables are hanging down, s tarboard lower back side panel is shredded ,

stern back - door frame is rusted , and the back door open;

G - 6: Full stern view of the i noperable port side outboard motor,

starboard motor is missing , starboard side steering cables laying in the

salt water, and s tarboard lower back side panel is shredded ;

G - 7: N avigational lights on starboard are visible, and bow appears to be

a receptacle for a number of unrelated, discarded items, including a

wheel and ice chest;

G - 8: Starboard lower back side panel is shredded , open hatches or

windows are visible, port engine is out of the water, starboard motor is

missing , steering cables are in the wat er, and pontoon houseboat is

visibly listing to the starboard side;

G - 9: Full stern view of the inoperable port side outboard motor,

starboard motor is missing, starboard side steering cables are laying in

the salt water , stern back door frame is rusted an d back door is open ,

and starboard lower back side panel is shredded ;

G - 10: Port side pontoon is partially out of the water, rub rail is broken,

windows are broken or missing, stern back door is open, port side

outboard motor is out of the water, and star board motor is missing ;

G - 11: LCSO Notice posted on the pontoon houseboat on December 8,

2020; and

G - 12: B ow of the pontoon houseboat is listing to the starboard side ,

barnacles are exposed on the front port bow, and rub railing is broken.

23. Mr. Janikula testified that the pontoon houseboat is Ñan ongoing

projectÒ of his, yet he failed to provide credible evidence of any repairs being

made to it. He offered that someone was living on it and the person had a

Ñhot shower last night.Ò Mr. Janikula testified that his pontoon houseboat

was Ñcurrently in about 7 feet of water floating just fine. Right next to me. I

can see it from here.Ò

24. Mr. Janikula testified that the one outboard motor Ñgot damaged,Ò his

pontoon houseboat ÑdoesnÔt have any functioning eng ineÒ on it, and currently

it is incapable of being moved on its own. Although he claimed the pontoon

houseboat only had one motor when he purchased it, Mr. Janikula claimed

the steering components were all present, and the vessel only needed one

engine to steer.

25. Lastly, Mr. Janikula testified that the pontoon houseboat was

Ñtechnically .. . a residential barge È it looks like a mobile home on pontoons.Ò

LCSOÔs photographs provide proof that this is not a barge as defined in

section 327.02(3 ), Florida St atutes, 9 but a pontoon houseboat, and it i s in a

wrecked condition . There can be no dispute that the pontoon houseboat was a

Ñ vessel Ò within the meaning of section 327.02(46 ) .

26. Based on the evidence (both testimony and photographic), the

undersigned fin ds that at the time of the hearing, Mr. JanikulaÔs testimony

regarding: substantial repairs having been made to the pontoon houseboat;

9 Section 327.02(3) provides: ÑBargeÒ means a vessel that does not have living quarters, is not

propelled by its own power, and is designed to be pushed or pulled by another vessel.

the description of the pontoon houseboat as floating in Ñ7 feet of water Ò; the

claim that the pontoon houseboat was sold with only one engine; and the

claim that it is a residential barge, to be unpersuasive and self - serving.

27. Further, the pontoon houseboat was a Ñderelict vesselÒ within the

meaning of section 823.11(1)(b)1. It was left in a wrecked, junked, or

substanti ally dismantled condition upon the public waters of this state. The

testimony and photographic evidence conclusively demonstrate that the

pontoon houseboat was a junked and/or substantially dismantled vessel when

it was observed by the deputies.

C ONCLUSIO NS OF L AW

28. DOAH has jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 , 120.57(1), and 120.65(6), Fla. Stat.

29. Section 705.101(3) provides in pertinent part:

ÑAbandoned propertyÒ means ... includes derelict

vessels as def ined in s. 823.11.

30. Section 705.103(4) provides:

(4) The owner of any abandoned or lost property

who, after notice as provided in this section, does

not remove such property within the specified

period shall be liable to the law enforcement agency

for all costs of removal, storage, and destruction of

suc h property, less any salvage value obtained by

disposal of the property. Upon final disposition of

the property, the law enforcement officer shall

notify the owner, if known, of the amount owed. In

the case of an abandoned vessel or motor vehicle,

any pers on who neglects or refuses to pay such

amount is not entitled to be issued a certificate of

registration for such vessel or motor vehicle, or any

other vessel or motor vehicle, until such costs have

been paid. The law enforcement officer shall supply

the D epartment of Highway Safety and Motor

Vehicles with a list of persons whose vessel

registration privileges or whose motor vehicle

privileges have been revoked under this subsection.

Neither the department nor any other person

acting as agent thereof shall issue a certificate of

registration to a person whose vessel or motor

vehicle registration privileges have been revoked,

as provided by this subsection, until such costs

have been paid.

31. Section 823.11 provides in pertinent part:

(1) As used in this section, the term:

* * *

(b) ÑDerelict vesselÒ means a vessel, as defined in

s. 327.02, that is left, stored, or abandoned:

1. In a wrecked, junked, or substantially

dismantled condition upon any public waters of this

state.

* * *

(2) It is unlawful for a person, firm, or corporation

to store, leave, or abandon any derelict vessel in

this state.

(3) The commission, officers of the commission, and

any law enforcement agency or officer specified in s.

327.70 are autho rized and empowered to relocate,

remove, or cause to be relocated or removed a

derelict vessel from public waters if the derelict

vessel obstructs or threatens to obstruct navigation

or in any way constitutes a danger to the

environment, property, or perso ns. The

commission, officers of the commission, or any

other law enforcement agency or officer acting

under this subsection to relocate, remove, or cause

to be relocated or removed a derelict vessel from

public waters shall be held harmless for all

damages to the derelict vessel resulting from such

relocation or removal unless the damage results

from gross negligence or willful misconduct.

32. Section 376.15(3)(a) provides:

The commission, officers of the commission, and

any law enforcement agency or offic er specified in s.

327.70 are authorized and empowered to relocate,

remove, or cause to be relocated or removed any

derelict vessel as defined in s. 823.11 from public

waters. All costs, including costs owed to a third

party, incurred by the commission or other law

enforcement agency in the relocation or removal of

any abandoned or derelict vessel are recoverable

against the owner of the vessel. The Department of

Legal Affairs shall represent the commission in

actions to recover such costs.

33. Section 327 .02 provides in pertinent part:

Definitions. Ð As used in this chapter and in

chapter 328, unless the context clearly requires a

different meaning, the term:

* * *

(46) ÑVesselÒ is synonymous with boat as referenced

in s. 1(b), Art. VII of the Stat e Constitution and

includes every description of watercraft, barge, and

airboat, other than a seaplane on the water, used or

capable of being used as a means of transportation

on water.

* * *

(47) ÑWaters of this stateÒ means any navigable

waters of the United States within the territorial

limits of this state, the marginal sea adjacent to

this state and the high seas when navigated as a

part of a journey or ride to or from the shore of this

state, and all the inland lakes, rivers, and canals

unde r the jurisdiction of this state.

34. The above listed statutes do not define some of the terms used therein,

and therefore one can refer to a dictionary to ascertain the intended meaning.

See L.B. v. State , 700 So. 2d 370, 372 (Fla. 1997) (stating that Ña court may

refer to a dictionary to ascertain the plain and ordinary meaning which the

legislature intended to ascribe to the term.Ò) .

35. The online edition of Merriam - WebsterÔs Dictionary defines the

following terms:

ÑleftÒ as the past tense of the wor d ÑleaveÒ;

ÑwreckÒ Ï in pertinent part, Ñsomething cast up on the land by the seaÒ

or Ña hulk or ruins of a wrecked ship.Ò

See https://meriam - webster.com (last searched April 26, 2021).

36. Because LCSO is asserting that Mr. JanikulaÔs vessel was a Ñdereli ct

vesselÒ within the meaning of section 823.11(1)(b)1., LCSO bears the burden

of proof. Fla. DepÔt of Transp. v. J.W.C. Co. , 396 So . 2d 778, 788 (Fla. 1st DCA

1981)(stating that Ñ[i]n accordance with the general rule, applicable in court

proceedings, Óthe burden of proof, apart from statute, is on the party asserting

the affirmative of an issue before an administrative tribunal.ÔÒ)(quoting

Balino v. DepÔt of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977)).

37. Section 823.11(1)(b)1 . does not provide a standard of proof in

proceedings such as the instant case. Section 120.57(1)(j) provides the

following:

Findings of fact shall be based upon a

preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as

otherwise provided by stat ute, and shall be based

exclusively on the evidence of record and on

matters officially recognized.

38. Case law could possibly offer that Respondent should be required to

prove its case by the higher standard of proof: clear and convincing. See DepÔt

of Law Enf. v. Real Property , 588 So. 2d 957, 968 (Fla. 1991)(holding that

Ñdue proofÒ under the Florida Contraband Forfeiture Act Ñconstitutionally

means that the government may not take an individualÔs property in

forfeiture proceedings unless it proves, by no less than clear and convincing

evidence, that the property being forfeited was used in the commission of a

crime. Ò ) .

39. Even if one could (or would) argue that the higher clear and convincing

standard of proof should be used in this case , Responden t proved by the clear

and convincing standard that the pontoon houseboat was a Ñderelict vesselÒ

within the meaning of section 823.11(1)(b)1.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Lee Co unty SheriffÔs Office issue a f inal o rder

deeming the pontoon houseboat to be a Ñderelict vesselÒ within the meaning

of section 823.11, and the Lee County SheriffÔs Office is authorized under

section 376.15(3)(a) to relocate or remove it.

D ONE A ND E NTERED this 30th day of April , 2021 , in Tallahassee, Leon

County, Florida.

S

L YNNE A. Q UIMBY - P ENNOCK

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of A dministrative Hearings

this 30th day of April , 2021 .

C OPIES F URNISHED :

Gary Scot Janikula Antonette D. Hornsby, Esquire

132 Tropical Shore Way Lee County Sheriff's Office

Fort Myers Beach, Florida 33931 14750 Six Mile Cypress Parkway

Fort Myers, Flori da 33913

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Fin al Order in this

case.