18-000296 Jeffrey Ray Sundwall vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Wednesday, July 25, 2018.

Summary: The FWC proved that Petitioner's vessels were "derelict vessels" under section 823.11, Florida Statutes, and therefore, the vessels are subject to removal and relocation as provided by law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY RAY SUNDWALL,

Petitioner,

vs. Case Nos. 18 - 0296

18 - 1207

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,

Respondent.

_______________________________/

RECOMMEN DED ORDER

On May 31, 2018 , a final hearing was conducted by Robert L.

Kilbride, Administrative Law Judge at the Division of

Administrative Hearings, in Key West, Florida.

APPEARANCES

For Petitioner: Jeffrey Ray Sundwall, pro se

M.C.D.C. Î A1 No. 10

5501 College Road

Key West, Florida 33040

For Respondent: Brandy Elaine Elliott , Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Mer idian Street

Tallahassee, Florida 32399 - 1600

STATEMENT OF THE ISSUE

Whether the Florida Fish and Wildlife Conservation

Commission ( " FWC ," " Respondent , " or " Commission " ) properly

determined that two (2) vessels owned by Jeffrey Sundwa ll

( " Petitioner " or " Sundwall " ) were derelict or abandoned upon the

waters of the s tate of Florida ( " State " ) in violation of

section 823.11, Florida Statutes (2018) , 1/ and , therefore, subject

to the provisions of sections 823.11, 705.101(3), and 705.103,

Flori da Statutes.

PRELIMINARY STATEMENT

FWC provided notices to Sundwall that it had determined that

two (2) vessels owned by him were derelict upon the waters of the

State in violation o f section 823.11, and therefore subject to

the provisions of sections 823. 11, 705.101(3), and 705.103 .

Taking exception to those determinations, Petitioner

challenged the notices and findings by FWC and timely filed

two (2) separate petitions for administrative h earing relating to

the vessels.

The two (2) cases were consolidate d by the undersigned for

all purposes, including a final hearing.

After addressing several pre - hearing motions filed by the

parties, the case s were set for final hearing and heard on

May 31, 201 8 , in Key West, Florida.

FWC called numerous witnesses, all of whom were sworn law

enforcement officers including: Kelsey Grenz, Harry Balgo,

Bob Wehner, David Bellville, Noel Garcia , and Robe rt Rowe. FWC

offered Exhibits 1 through 12 , which were all admitted by the

undersigned.

Sundwall testified on his own beha lf. He offered, and the

undersigned admitted without objection , Exhibits A through E, I,

J, and L through S . Over FWCÓs objection, the undersigned also

admitted PetitionerÓs Exhibits F through H, T, V, W , and Y.

In an Evidentiary Order , entered on June 6 , 2018 , the

undersigned reconsidered sua sponte a ruling made at the hearing,

and admitted PetitionerÓs Exhibit X, a large color photograph of

the vessel , " Cuki, " take n in September or October 2017. 2 /

In the same Order, the undersigned ins tructed the parti es to

brief PetitionerÓs claim that : (1) FWC had a duty to maintain or

protect the vessel after it grounded , and (2) whether

PetitionerÓs incarcerated status relieved him of his

responsibility to retrieve or make arrangements to retrieve his

vessels.

The T ranscript was filed June 18, 2018. The parties timely

filed their proposed recommended o rders , which were reviewed and

considered in the preparation of this Recomm ended Order.

FINDING S OF FACT

The undersigned makes the following findings of material and

relevant fact:

1. Following the aftermath of Hurricane Irma in

September 2017, law enforcement officers from FWC investigated

what were categorized as " displaced vessels " found around the

S tate that had been impacted and dislocated by the hurricane.

Many had been ripped from their moorings, slips , or docks and

floated away, driven by the winds and tides.

2. Vessels displaced by Hurricane Irma included those that

were either wrecked or sunken in waters of the State.

3. Vessels that were left on the wat ers of the State in a

wrecked or sunken state by Hurricane Irma were considered

" derelict vessels " by FWC under section 823.11(1)(b) .

4. Following Hurricane Irma, derelict and displaced vessels

were dealt with differently by FWC than derelict vessels wo uld

ordinarily be handled.

5. For instance, ordinarily , derelict vessels would be left

on the waters of the State while the owner was determined,

located , and notified and the investigation process was

completed.

6. In the wake of Hurricane Irma, how ever, since there were

so many derelict vessels that littered the waters of the State,

particularly in South Florida and the Florida Keys, the State

authorities chose to be more proactive and remove the derelict

vessels from the S tate waters and store them for 30 days.

7. After the hurricane in September 2017, FWC attempted to

locate and notify owners that their derelict vessel had been

located, removed from the waters of the State , and stored. The

owner could either (1) ret rieve the vessel during a 30 - day window

following notification, (2) waive their interests in the vessel

and allow the State to destroy the vessel sooner than 30 days, or

(3) do nothing.

8. I f the owner had not recovered the vessel or challenged

the derelict determination a fter 30 day s , Respondent would

proceed with destruction of the derelict vessel.

9. Ordinarily , the private owner of a derelict vessel is

responsible for all costs associated with its removal and

destruction. Despite this, after Hurricane Irma, the State

assumed th ose costs.

10. The law enforcement officers who testified at the

hearing received training at the law enforcement academy to

identify derelict vessels as defined by S tate law.

Facts Relating to the Vessel, Cuki

11. Following Hurricane Irma, FWC person nel determined that

a vessel named Cuki was displaced following Hurricane Irma. It

was found grounded and partially imbedded on the beach just south

of Spessard Holland Beach Park in the unincorporated area of

Melbourne Beach in Brevard County. The Cuki, is a 1974 Columbia

45 - foot , two - masted sailboat.

12. Depending on the level of the ocean tide, this area of

the beach was rather wide and flat, and frequented by members of

th e public and other beachgoers. 3 /

13. An Incident Summary Report wa s prepared by Kelsey Grenz

on November 21, 2017. The Cuki was first reported to FWC as

grounded on the beach in Brevard County on September 19, 2017.

R esp. Ex. 1.

14. The facts, and reasonable inferences from the facts,

indicate that when it was first reported t o FWC on September 19,

2017, the Cuki was in reasonably decent condition. 4/ See P et.

Ex s. N and X .

15. Respondent investigated ownership of the Cuki and

identified Petitioner as the last documented owner of the Cuki. 5/

R esp. Ex. 2, pp. 1 - 2.

16. On Nove mber 15, 2017, Grenz and her supervisor provided

written notice to Petitioner that his vessel, the Cuki

(documented vessel DO564929) , was wrecked and grounded off the

coast of Brevard County , Florida , foll owing Hurricane Irma.

Resp. Ex s . 1 and 2.

17. Th e notice was hand - delivered to Petitioner by Grenz

while he was in custody and incarcerated at the Monroe County

Detention Center on several unrelated criminal charges. 6/ Resp.

Ex. 1, pp. 1 - 2.

18. In addition to the written notice informing Petitioner

t hat the Cuki had been displaced following Hurricane Irma, Grenz

also provided Petitioner with a waiver document that would have

allowed Petitioner to waive his interests in the Cuki, and

allow ed the State to remove and destroy the vessel at no cost to

him. Resp. Ex. 1, p. 2. Petitioner was unwilling to sign the

waiver. 7 /

19. By November 15, 2017 , the vessel, although derelict and

grounded on the beach in Brevard County, was still considered

p hysically in the waters of the State . Resp. Ex s . 5a and 5b.

More spec ifically, it was below the high - tide watermark on the

beach, and , at times, the normal tidal flows of the A tlantic

Ocean washed up against and around it. Resp. Ex. 5.

20. On January 16, 2018, Respondent , Law Enforcement

O fficer Bob Wehner , went to the location of the Cuki and recorded

the vesselÓs condition as he personally observed it then.

21. In a short report, Wehner described the Cuki as

follows:

Vessel " CUKI " is a 1974 45Ó Columbia

Fiberglass sailboat that is beached on the

Atlantic coas t in the unincorporated area of

Brevard County (N28.0454 W80.5462). The

portside of the vessel is partially imbedded

in the sand below the high - water tidemark on

the beach. The vessel is equipped with an

inboard motor, however, there is no shaft or

prope ller present. The vessel has no rudder,

or steering wheel at the helm and no other

means of steerage. The vessel is equipped

with two masts. The mast at the stern of the

vessel is broken at the base and suspended

only by a single cable. There are no sa ils

and the sail rigging is either missing or in

disarray. The hatches at the topside of the

cabin and windows on the portside have no

covers leaving the interior open to the rain

and wave activity.

Resp . Ex. 3, p. 2.

22. A detailed series of dayl ight pictures of the Cuki were

taken by Wehner on January 16, 2018. The pictures generally

reveal and show that the vessel:

a. Was grounded on the beach in waters of the State . Resp.

Ex. 4(a).

b. The Cuki had cables attached to the sail that were

tangl ed up, or in disarray. Resp. Ex s . 4(a) and 4(h). Some of

these cables and other riggings were supposed to be attached to

the masts and were broken off. Resp. Ex. 4(d).

c. The Cuki had seven ( 7 ) or eight ( 8 ) open hatches or

doors on the top side of the vessel that were subject to wind,

rain, ocean spray , and other natural elements. Resp. Ex s . 4(c),

4(d), and 4(g).

d. The Cuki was lying on its port side, pointing generally

north with the bottom/keel area facing out towards the Atlantic

Ocean. It was p artially imbedded in the beach sand all the way

up to the gunwale on the port side of the vessel. Resp. Ex s .

4(d ) and 4(e).

e. Its rear mast was broken at the base, making the mast

unusable. Resp. Ex s . 4(f) and 4(g).

f. It had no rudder or steering wh eel to navigate the

vessel when it was under power.

g. The drive shaft and propeller were missing and were not

connected to the inboard motor used to power the vessel when it

was not under sail. Resp . Ex s . 4(i ), 4 (j) , and 4(k).

h. The CukiÓs keel, ne cessary for stabilizing the vessel,

was imbedded in the sand and was cracking and rusting where it

was affixed to the hull . Resp. Ex s . 4(l) , 4(m), and 4(n).

i. The vessel had no skeg to protect the rudder. Resp.

Ex s . 4(i) and 4 (j).

23. FWC hand - deliver ed a supplementary written notice to

Petitioner on January 17, 2018. The notice provided Petitioner

with additional details of the specific condition of the Cuki, as

detailed above on January 17, 2018. Resp . Ex . 6.

24. At present, the Cuki is still lo cated on the beach in

Brevard County, Florida.

25. At some point in time when Respondent was prepared to

remove the Cuki from the Brevard County beach as a derelict

vessel, it determined that an o rder had been entered by the

Monroe County Court for the S ixteenth Judicial Circuit of

Florida. It ordered FWC, and other state entities, not to

destroy, remove, alter, move, or otherwise disp ose of the Cuki

until certain that misdemeanor criminal charges filed against

Petitioner were resolved. 8/ Res p . Ex . 10.

26. Apparently, this July 24, 2017 , o rder was lifted when

an Amended Order Granting StateÓs Motion to Reconsider was

entered on January 8, 2018. Resp. Ex. 12.

27. This second o r der specifically stated that FWC " may

remove the [vessel] or the vessel may be removed by the p ost - Irma

federal grant program. " Res p. Ex. 12. It further stated that

Petitioner , as the defendan t in that criminal case, could " make

arrangements, prior to the local, State, and/or Federal

government removing the vessel, to have t he vessel removed and

stored on private property with the consent of the property

owner. " Resp. Ex. 12. Neither party did so. 9 /

28. Petiti oner does not contest that the Cuk i is

" destroyed " or " abandoned . " Sundwall also characterized the Cuki

as a " carc ass at this point. "

29. Rather he argues, in part, that FWC had a duty to

maintain or protect the Cuki after it grounded in Brevard County.

Facts Relating to the Vessel, Sea Myst

30. Following Hurricane Irma, FWC personnel determined that

another vess el, named the Sea Myst (documented vessel FL6220JX),

registered to Petitioner , was displaced following Hurricane Irm a.

The Sea Myst is a 15 - foot, fiber - glassed open motorboat .

31. The Sea Myst was wrecked and substantially dismantled

in the waters of th e State in Monroe County. Resp . Ex . 8.

32. When it was found, a visible water line stain and

barnacle gr owth on the outside of the hull indicated that the

vessel had been partially submerged or sunken in the sea water.

The barnacles attached to the hull indicated to the officers that

it had been submerged in sea water for an extended period of

time. 10 / Resp . Ex s. 9(a) , 9(b) , 9(c) , and 9(d).

33. When it was first discovered, it appeared that

approximately 75 percent of the Sea Myst vessel was underwate r at

the bow. Resp . Ex . 9(a). There was no outboard motor or other

means of propulsion on the vessel. There was also no steering

linkage with which to steer the vessel. Resp . Ex . 9(d) .

34. When it was first found , the Sea Myst was lodged

alongside oth er derelict vessels, which were lying " stacked up "

against the shore. Pet . Ex . W.

35. To determine if a vessel is substantially dismantled,

FWC commonly looks to three categories: propulsion, steerage,

and hull integrity. Since the Sea Myst was missi ng both

propulsion and steerage, it was substantially dismantled, given

the conditions under which it was reco vered following Hurricane

Irma. 11 /

Post - Hurricane Irma Investigation and Collection of

Derelict Vessels

36 . Following Hurricane Irma, the U.S. Coast Guard removed

displaced and derelict vessels from the waters of the State that

were not able to be retrieved by their owners, including the Sea

Myst.

37 . Neither FWC nor the U.S. Coast Guard removed any

vessels from the waters of the State followin g Hurricane Irma ,

unless they were left on the waters of the State in a wrecked or

derelict condition. This included vessels that were su bmerged,

partially submerged, beached , or grounded in a position where

they could not be moved under their own power w ithout mechanical

assistance.

38 . All the vessels removed by the U.S. Coast Guard or the

Commission were on waters of the State. Removal of these vessels

was also necessary to prevent h azards to navigation .

39 . Following removal from the waters of t he State, the Sea

Myst, like other vessels, was put in a storage lo cation that was

monitored by FWC. This was to allow Sundwall, identified as the

registered owner, an opportunity to receive notice of the

vesselÓs condition and to retrieve the vessel from the storage

location, without incurring the costs of removal from the waters

of the State. Resp . Ex . 8, pp. 1 - 2 .

40 . On January 19, 2018, David Bellville hand - delivered

written notice to Petitioner that his vessel, the Sea Myst, was

damaged and displace d by Hurricane Irma. Resp . Ex. 7.

41 . In addition to this notice, Bellville also provided

Petitioner with a waiver document that would have allowed

Petitioner to waive his interests in the Sea Myst, and allow ed

the State to remove and destroy the vessel at no cost to him.

Petitioner did not agree to sign the vessel over to the State.

42 . Petitioner testified that he i s not the owner of the

Sea Myst and that the Sea Myst had been bought and paid for by an

un - named person and never collected. Petition er further stated

that he filed a Petition for an Administrative Hearing regarding

the Sea Myst in error and that he felt the vessel should be

destroyed with federal disaster/FEMA funds.

43 . Nonetheless, the more credible evidence indicates that

Petitio ner is still the titled owner of the Sea Myst, which is a

derelict vessel.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of these

proceedings. § 120.569 and 120.57( 1), Fla. St at .

45 . Both sections 823.11 and 376.15, Florida Statutes,

designate Respondent as the State agency empowered to remove or

cause to be removed any derelict vessel from the public waters of

the State under appropriate circumstances.

46 . It is un disputed that the Cuki and the Sea Myst both

meet the defini tion of " vessel " provided in section 327.02(46),

Florida Statutes.

47 . S ection 823.11(1)(b) is the primary law at issue in

these case s and provides two (2) principal definitions of a

" derel ict vessel " summarized as follows.

48 . First, a " derelict vessel " includes " a vessel, as

defined in s. 327.02, that is left, stored, or aban doned . . .

[i]n a wrecked, junked, or substantially dismantled condition

upon any public waters of this stat e. "

49 . Secondly, the statute defines a " derelict vessel " as

one that is " left, stored, or abandoned " and is " docked,

grounded, or beached upon the property of another without the

consent of the owner of the property. "

50. The statute provid es that it is unlawful for a person

to store, leave, or abandon any derelict vessel in this S tate.

§ 823.11(2), Fla. Stat.

51 . Finally, the enforcement mech anism of the statute

permits FWC to remove a derelict vessel from the public waters if

the der elict vessel obstructs or threatens to obstruct

navigation, or in any way constitutes a danger to the

environment, property , or persons. § 823.11(3) , Fla. Stat .

The undersigned conclude s that the Cuki meets these principal

definitions in its present cond ition and location on Melbourne

Beach. See also § 376.15(3) (a) , Fla. Stat.

52 . Any costs incurred to remove or relocate the vessel may

be recovered against the owner. § 823.11( 3) (b) , Fla. Stat.

53. Navigable " waters of the State " include " th e shores

between ordinary high and low water marks . " See, e.g. , Walton

C n ty . v. Stop the Beach Renourishment, Inc. , 998 So. 2d 1102

(Fla. 2008) ; Brickell vammel , 77 Fla. 544 (Fla. 1919) ; State

v. Gerbing , 56 Fla. 603 (Fla. 1908) . This definition is m et

based on the CukiÓs present location.

54 . Furthermore, the more persuasive evidence in this case

reveals that the Cuki was and is currently located in or on the

public waters of the State.

55. Thus, the Cuki meets the definition of a " dere lict

vessel " provided in section 823.11(1)(b).

56. S ection 705.101(3) defines " abandoned property " as " all

tangible personal property that does not have an identifiable

owner and that has been disposed on public property in a wrecked,

inoperative, o r partially dismantled condition or has no apparent

intrinsic value to the rightful owner. " The term " abandoned

property " now expressly includes a " derelict vessel " as defined

in section 823.11. 12 /

57 . Because the Cuki meets the definition of " derel ict

vessel " provided in section 823.11(1)(b), the vessel is also

" abandoned property " for purposes of chapter 705 (the StateÓs

l ost and abandoned property law).

58 . Th e testimony and evidence in these case s show that

prior to being removed for sto ra ge after Hurricane Irma, the Sea

Myst was located on the public waters of the State. The

testimony and evidence further show that the vessel was left,

stored, and abandoned in a wrecked, junked, and substantially

dismantled condition upon the waters of th e State. The Sea Myst,

therefore, meets the definition of a " derelict vessel " provi ded

in section 823.11(1)(b).

59. Because the Sea Myst meets the definition of " derelict

vessel " provided in section 823.11(1)(b), the vessel was also

" abandoned prope rty " for purposes of c hapter 705 (the StateÓs

lo st and abandoned property law).

Discussion Regarding Defenses Raised by Petitioner

Did FWC have any duty to maintain the Cuki after it grounded

in Brevard County, Florida?

60 . The short legal concl usion is " No ."

61 . Sundwall argues that FWC had an obligation to protect

or maintain the Cuki after it grounded and was reported to the

agency. There is no ba sis in law, or the facts of these case s ,

to support this proposition.

62 . Likewise, the parties have cited to no civil or

maritime law that obligated FWC to mainta in the integrity or

value of PetitionerÓs vessel, the Cuki, once it grounded,

following Hurricane Irma. The Cuki was, and is, PetitionerÓs

personal property. Such protection i s not the StateÓs

obligation.

63. Also, Respondent did not seize, gather , or take

possession of the Cuki. As a result, any decisional law in the

criminal context obligating the State to preserve such evidence

would not be applicable. 13 /

64 . Li kewise, even if FWC had decided to move the vessel ,

it would only be liable for damage caused by its gross negligence

or willful misconduct. § 823.11 (3) , Fla. Stat.

65 . To be clear, neither of these two scenarios is present

in this case. FWC did n ot seize, gather , or collect the vessel,

nor has any present damage to the vessel occurred because they

moved or relocated it after it was repo rted to the agency in

September 2017. 14 /

66 . Absent a specific civil or criminal law that p laced a

distinc t burden upon Respondent to protect or maintain the Cuki

once it grounded following Hurricane Irma, none existed.

67 . Since the language of the county c ourt order was clear,

it is not necessary to try to ascertain whether the intent or

spirit behind the order was different. See Ortiz v. State , 2 So.

3d 318 (Fla. 4th DCA 2008) .

68 . To conclude, FWC followed and honored the plain

language and the directive of the Monroe County Court for the

Sixteenth Judicial Circuit of Florida Order on Motion to Preserve

Evidence, and did not move, remove, or alter t he Cuki in any way.

No other law placed an obligation on Respondent to handle the

vessel differently.

Did SundwallÓs Incarceration Relieve Him of His Responsibility

to Retrieve or Make Arrangement s to Retrieve His Vessel, Cuki?

69 . The short legal conclusion is again " No ."

70. The parties have cit ed to no civil or maritime law

relieving Petitioner of his obligation to comply with the law

while incarcerated in Monroe County.

71. I n fact, courts have held that an inmateÓs general

legal obligations do not end, nor are they suspended, while

incarcerated. A survey of nationwide cases reveals several

relevant cases. A n incarcerated parentÓs obligation to pay child

support while incarc erated may be altered or held in abeyance,

but the obligation still exists, accumulates , and must be paid

( DepÓt of Rev. v. Jackson , 846 So. 2d 486 (Fla. 2003) , and McCall

v. Martin , 34 So. 3d 121 (Fla. 4th DCA 2010) ); an incarcerated

person may file bankr uptcy but is still obligated, despite his or

her imprisonment, to properly abide by all bankruptcy filing

rules and requirements and file all required schedules ( Davis v.

Hedlund , 573 B.R. 777 (Bankr. N.D. Cal. 2017)) , and an

incarcerated debtor is not rel ieved of the responsibility to

complete required credit counseling ( Bristol v. Ackerman ,

2009 U.S. Dist. LEXIS 7107 (E.D.N.Y. Feb. 2, 2009)).

72 . More to the point in this case, n o law has been cited

or identified by either party relieving Petitione r from his

responsibility to promptly retrieve, or make arrangements for

someone else to retrieve, his derelict vessel. And this

conclusion does not change merely because he was incarcerated in

the Monroe County Detention Center .

73 . It is undisput ed that Petitioner was given written

notice by FWC of his option to collect and remove the Cuki and

the Sea Myst.

74. Likewise, the county c ourtÓs Amended Order Granting

StateÓs Motion to Reconsider , dated January 8, 2018 (Resp .

Ex . 12) , specificall y authorized Sundwall to " make arrangements,

prior to the local, State, and/or Federal government removing the

vessel, to have the vessel removed and stored on private property

with consent of the property owner. " Petitioner might , even now,

make arrangem ents to have the Cuki removed from the beach in

Brevard County and stored on private property or sold. He has

chosen not to do so and cannot now complain.

75 . FWC also offered to Petitioner the option of waiving

his int erest in the vessels so that F WC could remove them and

destroy them consistent with the State's derelict vessel and

abandoned property laws. Sundwall refused.

76 . To conclude, n o law relieves an inmate of his or her

obligation to continue to properly maintain, store, retrieve, o r

manage a vessel (or other property) he or she owned prior to , or

while incarcerated. Petitioner had an obligation to promptly

remove the derelict vessel, the Cuki, from its location on the

pub lic waters of the State and to retrieve the Sea Myst from

sto r age, when he was notified by FWC.

77 . Respondent may now deal with and dispose of the vessels

as authorized by the StateÓs derelict vessel and abandoned

p roperty law, c hapter s 823, 705 , and 376.

RECOMMENDATION

Based on the foregoing Findings of Fa ct and Conclusions of

Law, it is RECOMMENDED that the Florida Fish and Wildlife

Conservation Commission enter a final order finding PetitionerÓs

vessels, the Cuki and the Sea Myst, derelict vessels under

section 823.11, Florida Statutes, and abandoned prop erty pursuant

to c hapter 705, Florida Statutes; that Petitioner was obligated

to remove his derelict vessels from the waters of the State and

has not done so; that Respondent did not violate any

responsibility or duty to protect, maintain , or preserve the

vessels; that appropriate costs be recovered upon proper

application and proof ; and that Respondent may dispose of both

vessels as authorized by law.

DONE AND ENTERED this 25th day of July , 2018 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of July , 2018 .

ENDNOTE S

1 / All references to Florida Statutes are to the 2018 version.

2 / Another picture marked as P etitioner's Ex hibit N , shows the

Cuki at full length, but at a different angle. It was also taken

much earlier t han FWC p hotographs found in Respondent's

Ex hibit 4.

3 / Marine creatures and other wildlife, including nesting sea

turtles, are frequently found in Florida east coast beach areas,

such as this stretch of beach.

4 / Over time, however, as the Cuki lay grounded on the beach and

exposed to the elements, there can be no doubt, and the

undersigned finds, that its condition was compromised , and the

general condition of the vessel, including its superstructure,

deck , and hull , deteriorated. Some of the vessels equipment,

riggings , and accessories were either remove d or damaged over

time as well.

5 / There is no dispute in these proceedings that Petitioner is

the curren t registered owner of the Cuki.

6 / On November 15, 2017, when Petitioner was served with the

" derelict vessel " notice, the Cuki was described in the n otice as

having " sustained major damage during Hurricane Irma ." However,

FWCÓs contention that the Cuki sustained major damage during the

hurricane is seemi ngly contradicted and not necessarily supported

by the original pictures taken earlier in September or

October 2017. Pet. Ex s . N and X. Regardless, as will be

explained in more detail, the deterioration of the vessel and

damag e over time was not caused b y FWC, nor was FWC under any

legal obligation to maintain the vessel after it beached on

Melbourne Beach in Brevard County in September 2017.

7 / The State had received funds from FEMA to destroy all vessels

displaced by Hu rricane Irma.

8 / Curiously , an d although not necessarily dispositive of the

issues in this c ase, the Order Granting Motion t o Preserve

Evidence was entered July 24, 2017 , several months before the

hurricane. Presumably, this order was already in place and being

honored when Hurricane Irma struck the Keys in September 2017 and

dislodged the Cuki from its mooring or dock somewhere in the

Keys. It then drifted aimlessly for several days north along the

eastern seaboard of Florida to Brevard County where it eventually

wound up on the beac h. Frankly, this gap in the evidence was not

adequately explained by either party during the hearing.

Nonetheless, it appears that when FWC initially determined that

it wanted to remove the vessel, it was prevented from doing so by

this July 2017 court o rder.

9 / Following the entry of the Amended Order Granting StateÓs

Motion to Reconsider, FWC did n ot remove the Cuki because the

amended o rder did not require removal, and this administrative

action was filed by Petitioner. Additionally, FWC was under t he

impression that Sundwall did not want the vessel removed.

Regardless, neither party moved the vessel.

10 / Barnacle s do not grow outside the water.

11 / The undersigned finds that this same test was met o n the Cuki

on November 15, 2017.

12 / Prior to 2002, vessels determined to be derelict by FWC under

section 823.11 were excluded from the definition of abandoned

property. The statute was amended in 2002 to include derelict

vessels as " abandoned property " by definition. See

Ch. 02 - 46, § 35, Laws of Fla. ; See also Op. Att'y Gen. Fla. 06 - 17

(2006).

13 / Even if FWC had seized, gathered or taken the Cuki into its

actual or constructive possession, which it did not, Sundwall

would have to show damage to the vessel resulting from the bad

faith of the age ncy. He did not. See Arizona v. Youngblood ,

488 U.S. 51, 109 S. Ct. 3 33, 102 L. Ed. 2d 281 (1988) (Unless

defendant shows bad faith on the part of the law enforcement

officers, failure to preserve potentially useful evidence does

not constitute a denial o f due process).

14 / These p oints are reinforced since the county c ourt had

entered its preservation order in July 2017 , and there was no

evidence presented to show that FWC did anything other than

scrupulously honor that court order. Additionally, by it s

express terms, that order did not place any burden on FWC to

seize, collect, maintain , or protect the Cuki. Rather, FW C and

other agents of the S tate were only directed not to destroy,

remove, alter, move , or otherwise dispose of the Cuki. This

directi ve is limited, and does not impose any expr ess or implied

obligation on FWC to affirmatively p rotect or maintain the

vessel. The undersigned conclude s that no such duty existed.

Indeed, if FWC had taken the Cuki into its possession or caused

it to otherw ise be removed or moved, then Respondent would have

been in potential violation of the county c ourtÓs order

specifically prohibiting those actions. This was true both

before and after Hurricane Irma while the court o rder was

applicable.

COPIES FURNISHED :

Brandy Elaine Elliott, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Jeffrey Ray Sundwall

M.C.D.C. - A1 No. 10

5501 College Road

Key West, Florida 33040

Eric Sut ton, Executive Director

F lorida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Haro ld G. " Bud " Vielhauer, General Counsel

F lorida Fish and Wildlife

Conservation C ommission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1050

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. A ny exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.