88-004309 Charles A. Fraraccio vs. Department Of Natural Resources
 Status: Closed
Recommended Order on Friday, June 23, 1989.


View Dockets  
Summary: Dept failed to prove trees were trimmed waterward of the MHW line inten- tionally & willfully against rule or stat error in survey caused mistake.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CHARLES A. FRARACCIO, )

12)

13Petitioner, )

15)

16vs. ) CASE NO. 88-4309

21)

22DEPARTMENT OF NATURAL RESOURCES, )

27)

28Respondent. )

30___________________________________)

31RECOMMENDED ORDER

33Pursuant to notice, the Division of Administrative Hearings, by its duly

44designated Hearing officer, Joyous D. Parrish, held a formal hearing in the

56above-style case on March 28-29, 1989, in Stuart, Florida.

65APPEARANCES

66For Petitioner: William L. Contole

71McManus, Wiitala & Contole, P.A.

76P.O. Box 14125

79North Palm Beach, Florida 33408

84For Respondent: Ross S. Burnaman

89Department of Natural Resources

933900 Commonwealth Boulevard

96Tallahassee, Florida 32399-3000

99STATEMENT OF THE ISSUE

103The central issue in this case is whether Petitioner violated Chapter 253,

115Florida Statutes by removing or cutting mangrove trees waterward of the mean

127high water line of his property.

133PRELIMINARY STATEMENT

135On June 10, 1988, the Department of Natural Resources (Department) issued a

147Notice of Violation and Order for Corrective Action which advised Charles A.

159Fraraccio (Fraraccio) of an alleged violation of Chapter 253, Florida Statutes.

170This notice claimed Fraraccio had illegally destroyed and removed mangroves on

181sovereign land within the Jensen Beach to Jupiter Inlet Aquatic Preserve in

193Martin County, Florida. Thereafter, Fraraccio filed a Petition for Formal

203Administrative Hearing which sought a review of the disputed issues of fact and

216the case was forwarded to the Division of Administrative Hearings for formal

228proceedings on August 10, 1988.

233At the hearing, the Department presented the testimony of the following

244witnesses: Charles A. Fraraccio, owner of the subject property; Rod Maddox, a

256registered land surveyor employed by the Department's Bureau of Surveying and

267Mapping; Gregory Fleming, a land surveyor who prepared a survey of the subject

280property for the Department; Paul Steven Mikkelsen, a Department employee

290assigned to the Bureau of Aquatic Preserves; and Kalani Cairns, manager of the

303Department's Indian River Lagoon Aquatic Preserve program. The Department's

312exhibits numbered 1, 2, 3, 3B, 4, 5, 6, 8, 11, and 12 were admitted into

328evidence. Dr. Fraraccio testified in his own behalf and Fraraccio exhibits

339numbered 1, 2, 3, 4, 5, 9, 10, 11, 13, and 14 were admitted into evidence.

355Official recognition has been taken of the following provisions: Chapter 18-20,

366Florida Administrative Code, Rules 18-21.001 through 18-21.005 and 18-21.007,

375Florida Administrative Code, Chapter 18-14, Florida Administrative Code, and the

385certificate of action of the Board of Trustees of the Internal Improvement Trust

398Fund with the accompanying background information and transcript, December 15,

4081987.

409After the hearing, a transcript of the proceedings was filed with the

421Division of Administrative Hearings on April 26, 1988. The parties filed

432proposed recommended orders. Specific rulings on their proposed findings of

442fact are included in the appendix to this order.

451FINDINGS OF FACT

4541. The Department is the state agency charged with the responsibility of

466enforcing Chapter 253, Florida Statutes on behalf of the Board of Trustees of

479the Internal Improvement Trust Fund (Board).

4852. The Board holds title to submerged sovereign lands pursuant to Sections

497253.03 and 253.12, Florida Statutes, and Article X, Section 11, Florida

508Constitution.

5093. Fraraccio, together with his wife, owns a parcel of real property

521located in section 13, township 38 south, range 41 east which is commonly known

535as 26 High Point Road and which is located in Martin County, Florida. The

549southern boundary of the Fraraccio's property (subject property) borders the St.

560Lucie and Indian Rivers.

5644. In June, 1987, Fraraccio filed an application for permission to alter

576mangroves which grow along the shoreline of the subject property. It was

588Fraraccio's intention to cut the tops of the trees in order to promote

601horizontal growth. This application was filed with and processed by the

612Department of Environmental Regulation (DER).

6175. On September 1, 1987, DER issued a permit for the mangrove alteration.

630Pertinent to this proceeding is the following specific condition of the

641Fraraccio permit:

6434. "No person shall commence mangrove

649alteration or other activity involving the

655use of sovereign or other lands of the state,

664title to which is vested in the Board of

673Trustees of the Internal Improvement Trust

679Fund or the Department of Natural Resources

686under Chapter 253, until such person has

693received from the Board of Trustees of the

701Internal Improvement Trust Fund the required

707lease, license, easement, or other form of

714consent authorizing the proposed use.

719Pursuant to Florida Administrative Code Rule

72516Q-14, if such work is done without consent,

733or if a person otherwise damages state land

741or products of state land, the Board of

749Trustees may levy administrative fines of up

756to $10,000 per offense.

7616. In October, 1987, the Department's Bureau of Survey and Mapping was

773asked to survey the west line of the Jensen Beach to Jupiter Inlet Aquatic

787Preserve (Preserve) at the confluence of the St. Lucie River. Terry Wilkinson,

799chief surveyor for the bureau, conducted the field survey on October 14-16,

8111987. Mr. Wilkinson placed a metal rebar with a cap designating "D.N.R." at a

825point on the mean high water (MHW) line at the Fraraccio's property. Mr.

838Wilkinson also staked three points with lathe markers on a line northerly along

851the MHW line from the rebar monument. It was Mr. Wilkinson's opinion that the

865Preserve abutted the Fraraccio property from the point marked by the rebar

877monument northward along the coast. That portion of the Fraraccio property

888which was south and west of the rebar did not abut the Preserve.

9017. Fraraccio disputed the findings regarding the Preserve boundary reached

911by Wilkinson and did not concede that his property abuts the Preserve.

9238. On December 15, 1987, the issue of the Preserve boundary was taken

936before the Governor and Cabinet sitting as the Board at the request of the

950Department, Division of State Lands. Fraraccio was represented before the Board

961by counsel who argued against the staff recommendation. Mr. Wilkinson's

971interpretation of the boundary line for the Preserve was approved. That area

983waterward of the MHW line from the rebar monument northerly along the Fraraccio

996shoreline was, therefore, deemed to be part of the Preserve and sovereign

1008submerged land.

10109. Prior to cutting any mangrove trees, Fraraccio telephoned Casey

1020Fitzgerald, chief of the Department's Bureau of State Lands Management, to

1031inquire as to whether Department permission was required to trim mangroves

1042located above the MHW line. Fitzgerald's letter advised Fraraccio "that

1052trimming mangroves located above the MHW line would not be within the purview of

1066this department." Fitzgerald further recommended that Fraraccio "employ the

1075services of a registered land surveyor to specifically identify the individual

1086trees which are so located."

109110. Fraraccio did not obtain an independent survey. Instead, he relied

1102upon the rebar monument and the lathe markers placed by Wilkinson, and

1114contracted to have the mangroves landward of that line trimmed. One of

1126difficulties encountered in determining the location of a mangrove in relation

1137to the MHW line is the fact that one tree may have several trunks and prop roots

1154which emanate from the center of the tree. Consequently, there is some

1166uncertainty regarding how to locate the tree. One method used locates the

1178centermost trunk and considers that point the tree location. Another method

1189calculates the greatest percentage of tree mass and considers that point the

1201center of the tree. This calculated center is then matched against the MHW

1214line. Either method results in a judgment based upon visual inspection. This

1226judgment may differ among reasonable men.

123211. In January, 1988, Fraraccio supervised the cutting of mangroves based

1243upon the MHW line as established by the Wilkinson survey. Fraraccio did not

1256intend to cut trees waterward of the MHW line. No trees were cut waterward of

1271the Wilkinson line. A number of trees were trimmed landward of the Wilkinson

1284line.

128512. There is no evidence that either the rebar monument or the lathe

1298markers placed by Wilkinson were moved either prior to or after the mangrove

1311alteration.

131213. Fraraccio was responsible for the direct supervision of the workmen

1323who completed the mangrove trim. No work was done without Fraraccio's

1334authorization.

133514. On March 22, 1988, Kalani Cairns, inspected the Fraraccio property.

1346Cairns took field notes of the inspection. One of comments made at that time was

1361that it was "difficult to determine if MHWL stakes have been moved." Based upon

1375his review of the area, Cairns determined approximately 20 mangrove trees below

1387the MHW line had been topped.

139315. Subsequently, the Department issued the Notice of Violation and Order

1404for corrective action. Since Fraraccio did not believe he had cut waterward of

1417the MHW line, no corrective measures were taken. Subsequent to the Notice,

1429additional mangroves were not cut. Fraraccio timely sought review of the

1440notice.

144116. In preparation for the formal hearing in this cause, the Department

1453contracted with Greg Fleming to prepare a survey of a portion of the Fraraccio

1467property. The purpose of this second survey was to locate the MHW line along

1481the Fraraccio shoreline and to plot mangrove trees which had been trimmed and

1494which were waterward of the line. Approximately 24 trimmed mangrove trees were

1506located waterward of the MHW line as determined by the Fleming survey.

151817. The Fleming survey resulted in a MHW line which was upland of the line

1533established by the Wilkinson survey. The trimmed trees in dispute are located

1545between the two lines, as marked on the ground, by the lathes placed by the two

1561surveyors. Mr. Wilkinson did not testify and no credible explanation was given

1573for why the lines, as marked in the field, differ.

158318. At the time of the cutting, however Fraraccio believed the Wilkinson

1595lathes marked the MHW line. This belief was based upon the representations that

1608the Department had made regarding the rebar monument marked "D.N.R." and the

1620fact that the placement of the lathe stakes had coincided with placement of the

1634rebar.

1635CONCLUSIONS OF LAW

163819. The Division of Administrative Hearings has jurisdiction over the

1648parties and subject matter of these proceedings.

165520. Rule 18-14.003, Florida Administrative Code, provides in pertinent

1664part:

1665It shall be a violation of this rule for any

1675person or the agent of any person to

1683knowingly refuse to comply with any provision

1690of Chapter 253, F.S,, willfully violate any

1697provision of Chapter 253, F.S., or to

1704willfully damage state land (the ownership or

1711boundaries of which have been established by

1718the state) or products thereof, by doing any

1726of the following:

1729* * *

1732(2) Remove, in violation of state or federal

1740law, any product from state land without

1747written approval or specific exemption from

1753the board or department.

1757* * *

1760(6) Any other willful act that causes damage

1768to state land, or products thereof, when such

1776activity occurs without the required approval

1782by the board or department.

178721. Rule 18-14.001, Florida Administrative Code, provides in pertinent

1796part:

1797As used in this rule chapter:

1803(1) "Board" means the Governor and Cabinet

1810sitting as the Board of Trustees of the

1818Internal Improvement Trust Fund.

1822(2) "Department" means the Department of

1828Natural Resources.

1830* * *

1833(5) "Person" means individuals, firms,

1838associations, joint adventures, partnerships,

1842estates, trusts, business trusts, syndicates,

1847fiduciaries, corporations, and all other

1852groups or combinations; and a political

1858subdivision of the state.

1862(6) "Products" means without limitation,

1867indigenous, planted or exotic trees and other

1874vegetation, or portions thereof; peat; solid

1880minerals, phosphate, or limestone; oil or

1886gas; metals; or other inorganic material,

1892such as sand or gravel. For purposes of this

1901rule, animal wildlife within the jurisdiction

1907of the Florida Game and Fresh Water Fish

1915Commission and seashells shall not be

1921considered products of state lands.

1926(7) "State land" means that land, title to

1934which is vested in the board pursuant to

1942Section 253.03, F.S.

194522. In this case, the Department has failed to establish that Fraraccio

1957knowingly refused to comply with any provision of Chapter 253, Florida Statutes,

1969that he willfully violated any provision of that chapter, or that he willfully

1982removed or cut the mangroves waterward of the MHW line. The facts of this case

1997demonstrate that Fraraccio relied on the initial survey performed by Wilkinson

2008and did not cut trees waterward of the Wilkinson MHW line. That such reliance

2022may have been in error, based upon the subsequent survey performed by Fleming,

2035does not establish Fraraccio sought to intentionally ignore Chapter 253 or the

2047rules promulgated thereunder. It was reasonable for Fraraccio to rely on the

2059rebar monument and the lathes placed by Wilkinson since that line was

2071represented by' the Department to be the MHW line. There was no evidence that

2085the lathes had been moved either before or after the time Fraraccio had had the

2100trees topped. Further, only mangrove trees landward of the lathe markers were

2112cut.

211323. In this instance, the rule prohibiting removal of any product from

2125state land is couched in language of "knowing" and "willful" action. From the

2138facts of this case, it is clear Fraraccio believed he was cutting trees upland

2152of the MHW line. Consequently, he did not knowingly or willfully remove any

2165product of the state.

2169RECOMMENDATION

2170Based on the foregoing Findings of Fact and Conclusions of Law, it is

2183RECOMMENDED that the Board of Trustees of the Internal Improvement Trust

2194Fund enter a final order dismissing the Notice of Violation against Charles A.

2207Fraraccio.

2208DONE and ENTERED this 23rd day of June, 1989, in Tallahassee, Florida.

2220_________________________________

2221JOYOUS D. PARRISH

2224Hearing Officer

2226Division of Administrative Hearings

2230The DeSoto Building

22331230 Apalachee Parkway

2236Tallahassee, FL 32399-1550

2239(904) 488-9675

2241Filed with the Clerk of the

2247Division of Administrative Hearings

2251this 23rd day of June, 1989.

2257APPENDIX TO RECOMMENDED ORDER

2261IN CASE NO. 88-4309

2265Rulings on the proposed findings of fact submitted by Petitioner:

22751. Paragraphs 1 through 5 are accepted.

22822. With regard to paragraph 6, it is accepted Wilkinson put down three

2295lathes and that there is no evidence that those lathes were moved. Otherwise,

2308the paragraph is rejected. Mr. Wilkinson did not testify and, therefore, no

2320evidence was presented on the issue of the lathes. It is clear Fraraccio

2333believed the lathes to be the MHW line.

23413. Paragraph 7 is accepted.

23464. Paragraph 8 is rejected as contrary to the weight of the

2358evidence. The MHW line was correctly depicted on the ground and on paper

2371by the Fleming survey which was done after-the-fact. Pertinent to this case is

2384the fact that Fraraccio and DNR treated the Wilkinson survey on the ground (as

2398shown by-the rebar and the three lathes) as the MHW line prior to the cutting.

24135. Paragraph 9 is accepted.

24186. With regard to paragraph 10, the record shows Fleming was contacted to

2431perform the second survey in December, 1988, and that it was dated February,

24441989. With that modification and clarification, paragraph 10, in substance, is

2455accepted.

24567. Paragraph 11 is accepted to the extent that the two surveys

2468differed on the ground (as opposed to on paper).

24778. Paragraphs 12, 13, and 14 accepted but are irrelevant.

24879. With regard to paragraph 15, it is accepted that the workmen were

2500instructed not to cut waterward of the MHW line. The remainder is irrelevant to

2514this proceeding.

251610. Paragraphs 16 through 18 are accepted.

252311. With regard to paragraph 10, it is accepted Fraraccio cut or trimmed

2536the trees based upon the Wilkinson survey as depicted by the rebar and 3 lathe

2551markers. Otherwise, paragraph 19, is rejected as irrelevant.

255912. Paragraph 20 is accepted.

256413. Paragraph 21 is rejected as irrelevant to this proceeding.

2574Rulings on the proposed findings of fact submitted by the Department.

25851. Paragraphs 1 through 16 are accepted.

25922. The first sentence of paragraph 17 is accepted since both surveys

2604coincided at the point of the rebar marked "D.N.R.;" otherwise, the paragraph is

2617rejected as contrary to the weight of evidence since the surveys differed as

2630plotted on the ground.

26343. Paragraphs 18 and 19 are accepted.

26414. Paragraph 20 is rejected as irrelevant.

26485. Paragraph 21 is accepted.

26536. Paragraph 22 is rejected as contrary to the weight of the credible

2666evidence.

26677. Paragraph 23 is rejected as irrelevant. The number of trees cut

2679waterward of the MHW line as established by the Fleming survey was approximately

269224. The size of the trees is irrelevant.

27008. Paragraph 24 is rejected as irrelevant.

27079. Paragraphs 25 and 26 are accepted.

271410. Paragraph 27 is rejected as irrelevant to this proceeding.

2724COPIES FURNISHED:

2726William L. Contole

2729McManus, Wiitala & Contole, P.A.

2734P. O. Box 14125

2738North Palm Beach, Florida 33408

2743Ross S. Burnaman

2746Department of Natural Resources

27503900 Commonwealth Boulevard

2753Tallahassee, Florida 32399-3000

2756Tom Gardner, Executive Director

2760Department of Natural Resources

27643900 Commonwealth Boulevard

2767Tallahassee, FL 32399-3000

2770STATE OF FLORIDA

2773DIVISION OF ADMINISTRATIVE HEARINGS

2777CHARLES A. FRARACCIO, )

2781)

2782Petitioner, )

2784)

2785vs. ) CASE NO. 88-4309

2790)

2791DEPARTMENT OF NATURAL RESOURCES, )

2796)

2797Respondent. )

2799_________________________________)

2800CORRECTED RECOMMENDED ORDER

2803Pursuant to notice, the Division of Administrative Hearings, by its duly

2814designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the

2826above-style case on March 28-29, 1989, in Stuart, Florida.

2835APPEARANCES

2836For Petitioner: William L. Contole

2841McManus, Wiital & Contole, P.A.

2846P. O. Box 14125

2850North Palm Beach, Florida 33408

2855For Respondent: Ross S. Burnaman

2860Department of Natural Resources

28643900 Commonwealth Boulevard

2867Tallahassee, Florida 32399-3000

2870STATEMENT OF THE ISSUES

2874The central issue in this case is whether Petitioner violated Chapter 253,

2886Florida Statutes by removing or cutting mangrove trees waterward of the mean

2898high water line of his property.

2904PRELIMINARY STATEMENT

2906On June 10, 1988, the Department of Natural Resources (Department) issued a

2918Notice of Violation and Order for Corrective Action which advised Charles A.

2930Fraraccio (Fraraccio) of an alleged violation of Chapter 253, Florida Statutes.

2941This notice claimed Fraraccio had illegally destroyed and removed mangroves on

2952sovereign land within the Jensen Beach to Jupiter Inlet Aquatic Preserve in

2964Martin County, Florida. Thereafter, Fraraccio filed a Petition for Formal

2974Administrative Hearing which sought a review of the disputed issues of fact and

2987the case was forwarded to the Division of Administrative Hearings for formal

2999proceedings on August 10, 1988.

3004At the hearing, the Department presented the testimony of the following

3015witnesses: Charles A. Fraraccio, owner of the subject property; Rod Maddox, a

3027registered land surveyor employed by the Department's Bureau of Surveying and

3038Mapping; Gregory Fleming, a land surveyor who prepared a survey of the subject

3051property for the Department; Paul Steven Mikkelsen, a Department employee

3061assigned to the Bureau of Aquatic Preserves; and Kalani Cairns, manager of the

3074Department's Indian River Lagoon Aquatic Preserve program. The Department's

3083exhibits numbered 1, 2, 3, 3B, 4, 5, 6, 8, 11, and 12 were admitted into

3099evidence. Dr. Fraraccio testified in his own behalf and Fraraccio exhibits

3110numbered 1, 2, 3, 4, 5, 9, 10, 11, 13, and 14 were admitted into evidence.

3126Official recognition has been taken of the following provisions: Chapter 18-20,

3137Florida Administrative Code, Rules 18-21.001 through 18-21.005 and 18-21.007,

3146Florida Administrative Code, Chapter 18-14, Florida Administrative Code, and the

3156certificate of action of the Board of Trustees of the Internal Improvement Trust

3169Fund with the accompanying background information and transcript, December 15,

31791987.

3180After the hearing, a transcript of the proceedings was filed with the

3192Division of Administrative Hearings on April 26, 1988. The parties filed

3203proposed recommended orders. Specific rulings on their proposed findings of

3213fact are included in the appendix to this order.

3222FINDINGS OF FACT

32251. The Department is the state agency charged with the responsibility of

3237enforcing Chapter 253, Florida Statutes on behalf of the Board of Trustees of

3250the Internal Improvement Trust Fund (Board).

32562. The Board holds title to submerged sovereign lands pursuant to Sections

3268253.03 and 253.12, Florida Statutes, and Article X, Section 11, Florida

3279Constitution.

32803. Fraraccio, together with his wife, owns a parcel of real property

3292located in section 13, township 38 south, range 41 east which is commonly known

3306as 26 High Point Road and which is located in Martin County, Florida. The

3320southern boundary of the Fraraccio's property (subject property) borders the St.

3331Lucie and Indian Rivers.

33354. In June, 1987, Fraraccio filed an application for permission to alter

3347mangroves which grow along the shoreline of the subject property. It was

3359Fraraccio's intention to cut the tops of the trees in order to promote

3372horizontal growth. This application was filed with and processed by the

3383Department of Environmental Regulation (DER).

33885. On September 1, 1987, DER issued a permit for the mangrove alteration.

3401Pertinent to this proceeding is the following specific condition of the

3412Fraraccio permit:

34144. "No person shall commence mangrove

3420alteration or other activity involving the

3426use of sovereign or other lands of the state,

3435title to which is vested in the Board of

3444Trustees of the Internal Improvement Trust

3450Fund or the Department of Natural Resources

3457under Chapter 253, until such person has

3464received from the Board of Trustees of the

3472Internal Improvement Trust Fund the required

3478lease, license, easement, or other form of

3485consent authorizing the proposed use."

3490Pursuant to Florida Administrative Code Rule

349616Q-14, if such work is done without consent,

3504or if a person otherwise damages state land

3512or products of state land, the Board of

3520Trustees may levy administrative fines of up

3527to $10,000 per offense.

35326. In October, 1987, the Department's Bureau of Survey and Mapping was

3544asked to survey the west line of the Jensen Beach to Jupiter Inlet Aquatic

3558Preserve (Preserve) at the confluence of the St. Lucie River. Terry Wilkinson,

3570chief surveyor for the bureau, conducted the field survey on October 14-16,

35821987. Mr. Wilkinson placed a metal rebar with a cap designating "D.N.R." at a

3596point on the mean high water (MHW) line at the Fraraccio's property. Mr.

3609Wilkinson also staked three points with lathe markers on a line northerly along

3622the MHW line from the rebar monument. It was Mr. Wilkinson's opinion that the

3636Preserve abutted the Fraraccio property from the point marked by the rebar

3648monument northward along the coast. That portion of the Fraraccio property

3659which was south and west of the rebar did not abut the Preserve.

36727. Fraraccio disputed the findings regarding the Preserve boundary reached

3682by Wilkinson and did not concede that his property abuts the Preserve.

36948. On December 15, 1987, the issue of the Preserve boundary was taken

3707before the Governor and Cabinet sitting as the Board at the request of the

3721Department, Division of State Lands. Fraraccio was represented before the Board

3732by counsel who argued against the staff recommendation. Mr. Wilkinson's

3742interpretation of the boundary line for the Preserve was approved. That area

3754waterward of the MHW line from the rebar monument northerly along the Fraraccio

3767shoreline was, therefore, deemed to be part of the Preserve and sovereign

3779submerged land.

37819. Prior to cutting any mangrove trees, Fraraccio telephoned Casey

3791Fitzgerald, chief of the Department's Bureau of State Lands Management, to

3802inquire as to whether Department permission was required to trim mangroves

3813located above the MHW line. Fitzgerald's letter advised Fraraccio "that

3823trimming mangroves located above the MHW line would not be within the purview of

3837this department." Fitzgerald further recommended that Fraraccio "employ the

3846services of a registered land surveyor to specifically identify the individual

3857trees which are so located."

386210. Fraraccio did not obtain an independent survey. Instead, he relied

3873upon the rebar monument and the lathe markers placed by Wilkinson, and

3885contracted to have the mangroves landward of that line trimmed. One of

3897difficulties encountered in determining the location of a mangrove in relation

3908to the MHW line is the fact that one tree may have several trunks and prop roots

3925which emanate from the center of the tree. Consequently, there is some

3937uncertainty regarding how to locate the tree. One method used locates the

3949centermost trunk and considers that point the tree location. Another method

3960calculates the greatest percentage of tree mass and considers that point the

3972center of the tree. This calculated center is then matched against the MHW

3985line. Either method results in a judgment based upon visual inspection. This

3997judgment may differ among reasonable men.

400311. In January, 1988, Fraraccio supervised the cutting of mangroves based

4014upon the MHW line as established by the Wilkinson survey. Fraraccio did not

4027intend to cut trees waterward of the MHW line. No trees were cut waterward of

4042the Wilkinson line. A number of trees were trimmed landward of the Wilkinson

4055line.

405612. There is no evidence that either the rebar monument or the lathe

4069markers placed by Wilkinson were moved either prior to or after the mangrove

4082alteration.

408313. Fraraccio was responsible for the direct supervision of the workmen

4094who completed the mangrove trim. No work was done without Fraraccio's

4105authorization.

410614. On March 22, 1988, Kalani Cairns, inspected the Fraraccio property.

4117Cairns took field notes of the inspection. One of comments made at that time was

4132that it was "difficult to determine if MHWL stakes have been moved." Based upon

4146his review of the area, Cairns determined approximately 20 mangrove trees below

4158the MHW line had been topped.

416415. Subsequently, the Department issued the Notice of Violation and Order

4175for corrective action. Since Fraraccio did not believe he had cut waterward of

4188the MHW line, no corrective measures were taken. Subsequent to the Notice,

4200additional mangroves were not cut. Fraraccio timely sought review of the

4211notice.

421216. In preparation for the formal hearing in this cause, the Department

4224contracted with Greg Fleming to prepare a survey of a portion of the Fraraccio

4238property. The purpose of this second survey was to locate the MHW line along

4252the Fraraccio shoreline and to plot mangrove trees which had been trimmed and

4265which were waterward of the line. Approximately 24 trimmed mangrove trees were

4277located waterward of the MHW line as determined by the Fleming survey.

428917. The Fleming survey resulted in a MHW line which was upland of the line

4304established by the Wilkinson survey. The trimmed trees in dispute are located

4316between the two lines, as marked on the ground, by the lathes placed by the two

4332surveyors. Mr. Wilkinson did not testify and no credible explanation was given

4344for why the lines, as marked in the field, differ.

435418. At the time of the cutting, however, Fraraccio believed the Wilkinson

4366lathes marked the MHW line. This belief was based upon the representations that

4379the Department had made regarding the rebar monument marked "D.N.R." and the

4391fact that the placement of the lathe stakes had coincided with placement of the

4405rebar.

4406CONCLUSIONS OF LAW

440919. The Division of Administrative Hearings has jurisdiction over the

4419parties and subject matter of these proceedings.

442620. Rule 18-14.003, Florida Administrative Code, provides in pertinent

4435part:

4436It shall be a violation of this rule for any

4446person or the agent of any person to

4454knowingly refuse to comply with any provision

4461of Chapter 253, F.S., willfully violate any

4468provision of Chapter 253, F.S., or to

4475willfully damage state land (the ownership or

4482boundaries of which have been established by

4489the state) or products thereof, by doing any

4497of the following:

4500* * *

4503(2) Remove, in violation of state or federal

4511law, any product from state land without

4518written approval or specific exemption from

4524the board or department.

4528* * *

4531(6) Any other willful act that causes damage

4539to state land, or products thereof, when such

4547activity occurs without the required approval

4553by the board or department.

455821. Rule 18-14.001, Florida Administrative Code, provides in pertinent

4567part:

4568As used In this rule chapter:

4574(1) "Board" means the Governor and Cabinet

4581sitting as the Board of Trustees of the

4589Internal Improvement Trust Fund.

4593(2) "Department" means the Department of

4599Natural Resources.

4601* * *

4604(5) "Person" means individuals, firms,

4609associations, joint adventures, partnerships,

4613estates, trusts, business trusts, syndicates,

4618fiduciaries, corporations, and all other

4623groups or combinations; and a political

4629subdivision of the state.

4633(6) "Products" means without limitation,

4638indigenous, planted or exotic trees and other

4645vegetation, or portions thereof; peat; solid

4651minerals, phosphate, or limestone; oil or

4657gas; metals; or other inorganic material,

4663such as sand or gravel. For purposes of this

4672rule, animal wildlife within the jurisdiction

4678of the Florida Game and Fresh Water Fish

4686Commission and seashells shall not be

4692considered products of state lands.

4697(7) "State land" means that land, title to

4705which is vested in the board pursuant to

4713Section 253.03, F.S.

471622. In this case, the Department has failed to establish that Fraraccio

4728knowingly refused to comply with any provision of Chapter 253, Florida Statutes,

4740that he willfully violated any provision of that chapter, or that he willfully

4753removed or cut the mangroves waterward of the MHW line. The facts of this case

4768demonstrate that Fraraccio relied on the initial survey performed by Wilkinson

4779and did not cut trees waterward of the Wilkinson MHW line. That such reliance

4793may have been in error, based upon the subsequent survey performed by Fleming,

4806does not establish Fraraccio sought to intentionally ignore Chapter 253 or the

4818rules promulgated thereunder. It was reasonable for Fraraccio to rely on the

4830rebar monument and the lathes placed by Wilkinson since that line was

4842represented by the Department to be the MHW line. There was no evidence that

4856the lathes had been moved either before or after the time Fraraccio had had the

4871trees topped. Further, only mangrove trees landward of the lathe markers were

4883cut.

488423. In this instance, the rule prohibiting removal of any product from

4896state land is couched in language of "knowing" and "willful" action. From the

4909facts of this case, it is clear Fraraccio believed he was cutting trees upland

4923of the MHW line. Consequently, he did not knowingly or willfully remove any

4936product of the state.

4940RECOMMENDATION

4941Based on the foregoing Findings of Fact and Conclusions of Law, it is

4954RECOMMENDED that the Board of Trustees of the Internal Improvement Trust

4965Fund enter a final order dismissing the Notice of Violation against Charles A.

4978Fraraccio.

4979DONE and ENTERED this 18th day of July, 1989, in Tallahassee, Florida.

4991________________________________

4992JOYOUS D. PARRISH

4995Hearing Officer

4997Division of Administrative Hearings

5001The DeSoto Building

50041230 Apalachee Parkway

5007Tallahassee, Florida 32399-1550

5010(904) 488-9675

5012Filed with the Clerk of the

5018Division of Administrative Hearings

5022this 18th day of July, 1989.

5028APPENDIX TO THE RECOMMENDED ORDER

5033IN CASE NO. 88-4309

5037Rulings on the proposed findings of fact submitted by Petitioner:

50471. Paragraphs 1 through 5 are accepted.

50542. With regard to paragraph 6, it is accepted Wilkinson put down three

5067lathes and that there is no evidence that those lathes were moved. Otherwise,

5080the paragraph is rejected. Mr. Wilkinson did not testify and, therefore, no

5092evidence was presented on the issue of the lathes. It is clear Fraraccio

5105believed the lathes to be the MHW line.

51133. Paragraph 7 is accepted.

51184. Paragraph 8 is rejected as contrary to the weight of the evidence. The

5132MHW line was correctly depicted on the ground and on paper by the Fleming survey

5147which was done after-the-fact. Pertinent to this case is the fact that Fraraccio

5160and DNR treated the Wilkinson survey on the ground (as shown by the rebar and

5175the three lathes) as the MHW line prior to the cutting.

51865. Paragraph 9 is accepted.

51916. With regard to paragraph 10, the record shows Fleming was contacted to

5204perform the second survey in December, 1988, and that it was dated February,

52171989. With that modification and clarification, paragraph 10, in substance, is

5228accepted.

52297. Paragraph 11 is accepted to the extent that the two surveys differed on

5243the ground (as opposed to on paper).

52508. Paragraphs 12, 13, and 14 accepted but are irrelevant.

52609. With regard to paragraph 15, it is accepted that the workmen were

5273instructed not to cut waterward of the MHW line. The remainder is irrelevant to

5287this proceeding.

528910. Paragraphs 16 through 18 are accepted.

529611. With regard to paragraph 19, it is accepted Fraraccio cut or trimmed the

5310trees based upon the Wilkinson survey as depicted by the rebar and 3 lathe

5324markers. Otherwise, paragraph 19, is rejected as irrelevant.

533212. Paragraph 20 is accepted.

533713. Paragraph 21 is rejected as irrelevant to this proceeding.

5347Rulings on the proposed findings of fact submitted by the Department.

53581. Paragraphs 1 through 16 are accepted.

53652. The first sentence of paragraph 17 is accepted since both surveys

5377coincided at the point of the rebar marked "D.N.R.;" otherwise, the paragraph is

5390rejected as contrary to the weight of evidence since the surveys differed as

5403plotted on the ground.

54073. Paragraphs 18 and 19 are accepted.

54144. Paragraph 20 is rejected as irrelevant.

54215. Paragraph 21 is accepted.

54266. Paragraph 22 is rejected as contrary to the weight of the credible

5439evidence.

54407. Paragraph 23 is rejected as irrelevant. The number of trees cut

5452waterward of the MHW line as established by the Fleming survey was approximately

546524. The size of the trees is irrelevant.

54738. Paragraph 24 is rejected as irrelevant.

54809. Paragraphs 25 and 26 are accepted.

548710. Paragraph 27 is rejected as irrelevant to this proceeding.

549711. With regard to paragraph 28, it is accepted that the trimmed mangroves

5510were, in part, red mangroves. The exact number is unknown.

552012. Paragraph 29 is accepted, but is unnecessary.

552813. Paragraph 30 is rejected as unnecessary, irrelevant, or immaterial.

553814. Paragraph 31 is rejected as unnecessary, irrelevant, or immaterial.

554815. Paragraph 32 is accepted.

555316. Paragraph 33 is rejected as contrary to the weight of the credible

5566evidence.

556717. Paragraph 34 is accepted.

557218. Paragraph 35 is accepted to the extent that Fraraccio was advised that a

5586survey locating the trees to be cut in relation to the line would be beneficial.

560119. Paragraph 36 is accepted as an accurate statement of how one might

5614visually determine MHW line; however, it is not the only method, and it was not

5629unreasonable to rely on lathes placed by a competent surveyor.

563920. Paragraph 37 is rejected as irrelevant, immaterial, or contrary to law.

565121. Paragraph 38 is rejected as contrary to the weight of the evidence.

566422. Paragraph 39 is accepted.

566923. Paragraph 40 is rejected as contrary to the weight of the evidence.

568224. Paragraph 41 is accepted.

568725. Paragraph 42 Is rejected as contrary to the weight of the evidence.

570026. Paragraph 43 is rejected as contrary to the weight of the evidence.

571327. Paragraph 44 is accepted but is irrelevant, immaterial and unnecessary.

5724COPIES FURNISHED:

5726William L. Contole

5729McManus, Wiitala & Contole, P.A.

5734P. O. Box 14125

5738North Palm Beach, Florida 33408

5743Ross S. Burnaman

5746Department of Natural Resources

57503900 Commonwealth Boulevard

5753Tallahassee, Florida 32399-3000

5756Tom Gardner, Executive Director

5760Department of Natural Resources

57643900 Commonwealth Boulevard

5767Tallahassee, FL 32399-3000

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Date
Proceedings
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Date: 06/23/1989
Proceedings: Recommended Order
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Date: 06/23/1989
Proceedings: Recommended Order (hearing held , 2013). CASE CLOSED.

Case Information

Judge:
J. D. PARRISH
Date Filed:
08/31/1988
Date Assignment:
01/05/1989
Last Docket Entry:
06/23/1989
Location:
Stuart, Florida
District:
Southern
Agency:
Department of Environmental Protection
 

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Related Florida Statute(s) (2):

Related Florida Rule(s) (5):