18-002352 Wasim Niazi vs. Department Of Transportation Status: Closed Recommended Order on Thursday, October 25, 2018.

Summary: Petitioner failed to prove that his heliport is exempt from Department approval under section 330.30(3)(f).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WASIM NIAZI,

Petitioner,

vs. Case No. 18 - 2352

DEPARTMENT OF TRANSPORTATION,

Respondents.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2018), 1/ on August 21, 2018, by video

teleconference with sites in Tallahassee and Dayto na Beach,

Florida.

APPEARANCES

For Petitioner: Daniel P. Faherty, Esquire

Telfer, Faherty & Anderson, P.L.L.C.

Suite 201

815 South Washington Avenue

Titusville, Florida 32780

For Respon dent: Susan Schwartz, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

STATEMENT OF THE ISSUE

The issue in this matter is whethe r section 330.30(3)(f),

Florida Statutes, exempts Petitioner from obtaining the approval

of the Department of Transportation prior to using a private

heliport site adjacent to his property.

PRELIMINARY STATEMENT

Petitioner, Wasim Niazi, asserts that he is exempt from the

requirement under section 330.30 to obtain approval from the

Department of Transportation (the Ð Department Ñ ) prior to using a

private heliport he built next to his property.

Through a Letter of Prohibition, dated April 6, 2018, the

Departme nt notified Petitioner that he was required to obtain an

airport site approval order and airport registration before using

his heliport. The Letter of Prohibition further instructed

Petitioner that the exemption from approval and registration set

forth in section 330.30(3)(f) was not applicable to his heliport.

On April 20, 2018, Petitioner timely submitted a petition for

a chapter 120 hearing to the Department. On May 10, 2018, the

Department forwarded the matter to the Division of Administrative

Hearing s ( Ð DOAH Ñ ) for assignment of an Administrative Law Judge.

The final hearing was held on August 21, 2018 . 2/ At the

final hearing, Petitioner testified on his own behalf.

Petitioner also presented the testimony of Denny Long.

Petitioner Ó s Exhibits 1, 2, 4 through 11, and 13 through 17 were

admitted into evidence. The Department presented the testimony

of Alice Lammert, Dave Roberts, and George Ritchie. The

Department Ó s Exhibits 1 through 12 and 14 were admitted into

evidence.

A one - volume Transcript of t he final hearing was filed on

September 12, 2018. At the close of the hearing, the parties

were advised of a ten - day timeframe after receipt of the hearing

transcript at DOAH to file post - hearing submittals. Both parties

filed Proposed Recommended Orders , which were duly considered in

preparing this Recommended Order.

FINDING S OF FACT

1. The Department is authorized to administer and enforce

the rules and requirements for airport sites, including initial

airport site approval, registration of private air ports, and

licensing of public use airports. See § 330.29, Fla. Stat.

2. Petitioner owns a home next to Honeymoon Lake in Brevard

County, Florida.

3. Petitioner, an aviation enthusiast, also owns several

helicopters. Petitioner currently parks his he licopters at a

nearby airport. Petitioner desires to takeoff and land his

helicopters at his home.

4 . Petitioner built a dock on Honeymoon Lake next to his

property. Over the dock, Petitioner constructed a wooden platform

to use as his heliport. Peti tioner built the platform directly

into the submerged lands beneath Honeymoon Lake. The platform is

approximately 36 feet long by 32 feet wide. The platform rests on

wooden pilings and is raised to about 15 feet above Honeymoon

Lake. The platform is con nected to the shore by a wooden foot

bridge.

5 . Petitioner harbors two boats at the dock beneath the

platform.

6 . Petitioner constructed the heliport for his private,

recreational use only. Petitioner wants to use his heliport

without applying for appr oval from the Department.

7 . Honeymoon Lake is a private (not State) body of water

whose history goes back to a deed issued in the late 18th

century. In 1878, President Rutherford B. Hayes, on behalf of

the United States government, deeded Honeymoon Lake to the

original developer of the area.

8 . Honeymoon Lake is approximately 300 feet wide at

Petitioner Ó s property line. The area of the lake where

Petitioner Ó s heliport is located is owned by the Stillwaters

Homeowners Association and used as a recreat ion area. On

September 5, 2017, after Petitioner constructed the platform, the

Stillwaters Homeowners Association Board of Directors approved

Petitioner Ó s heliport by resolution.

9 . Prior to this administrative action, Petitioner applied

to the Federal Aviation Administration ( Ð FAA Ñ ) for airspace

approval to operate his heliport on Honeymoon Lake. On April 13,

2017, the FAA provided Petitioner a favorable Heliport Airspace

Analysis Determination in which the FAA did not object to

Petitioner Ó s use of hi s helicopters in the airspace over

Honeymoon Lake. The FAA Ó s determination included an approved

Approach/Departure Path Layout and Agreement with the 45th Space

Wing , which operates out of nearby Patrick Air Force Base.

1 0 . Petitioner also represents tha t the heliport platform

does not violate the Brevard County Building Code. In support of

this assertion, Petitioner introduced the testimony of Brevard

County Code Enforcement Officer Denny Long. In August 2017,

after receiving a complaint that Petitione r Ó s heliport might have

been built in violation of Brev ard County ordinances, Mr. Long

inspected Petitioner Ó s dock structure. Upon finding that

Petitioner had already constructed his platform, Mr. Long could

not identify a code provision that he needed to enforce.

Therefore, he closed his investigation .

11. Petitioner contends that the Honeymoon Lake area is not

taxed by Brevard County. Neither is Brevard County responsible

for any improvements thereon. 3/

1 2 . Because his heliport is situated over w ater and not

land, as well as the fact that he will only use the heliport for

occasional, private use, Petitioner believes that he is entitled

to the exemption under section 330.30(3)(f) from obtaining the

Department Ó s approval prior to landing his helicop ters at his

heliport.

1 3 . Section 330.30 states, in pertinent part:

(1) SITE APPROVALS; REQUIREMENTS, EFFECTIVE

PERIOD, REVOCATION. Ï

(a) Except as provided in subsection (3), the

owner or lessee of any proposed airport

shall, prior to . . . construction or

establishment of the proposed airport, obtain

approval of the ai rport site from the

department.

* * *

(3) EXEMPTIONS. Ï The provisions of this

section do not apply to:

* * *

(f) Any body of water used for the takeoff

and landing of aircraft, including any land,

building, structure, or any other cont rivance

that facilitates private use or intended

private use.

1 4 . Petitioner asserts that the exemption described in

section 330.30(3)(f) extends to a Ð building, structure or any

other contrivance Ñ that is constructed on, or over, a body of

water. There fore, since his landing site is situated over water,

Petitioner argues that his heliport should be considered a

Ð structure . . . that facilitates private use Ñ of a Ð body of

water for the takeoff and landing of aircraft Ñ which qualifies

him for an exemption from Department approval.

1 5 . Although Petitioner does not believe that he needed to

apply to the Department for approval of his proposed landing site,

he did so at the FAA Ó s suggestion. Around April 2017, Petitioner

contacted the Department inquiring about the process to obtain an

airport license or registration for his heliport.

1 6 . On September 25, 2017, however, the Department denied

Petitioner Ó s application as incomplete. Pursuant to section

330.30(1)(a), the Department instructed Petitioner t o produce

written assurances from the local government zoning authority

(Brevard County) that the proposed heliport was a compatible land

use for the location and complied with local zoning requirements.

In response, instead of supplementing his applicati on, Petitioner

asserted to the Department that his heliport was exempt from

registration under section 330.30(3)(f) because it was located in

a private body of water.

1 7 . On April 6, 2018, the Department issued Petitioner a

formal Ð Letter of Prohibition. Ñ The Letter of Prohibition

notified Petitioner that he was not authorized to operate his

helicopter from his dock/heliport without first registering his

heliport with the Department and obtaining an Airport Site

Approval Order. The Letter of Prohibition further stated that

Petitioner Ó s heliport did not meet the exception from site

approval and registration requirements in section 330.30(3)(f).

The Department expressed that the exception only applied to Ð a

body of water used for the takeoff and landing o f aircraft. Ñ The

exception did not apply to the platform Petitioner desired to use

as his landing site.

1 8 . Petitioner challenges the Letter of Prohibition in this

administrative hearing.

1 9 . The Department , through Alice Lammert and Dave Roberts,

ass erts that Petitioner must register his private - use heliport

before he may use it to takeoff or land his helicopters.

Ms. Lammert and Mr. Roberts testified that the Department has

consistently interpreted section 330.30(3)(f) to pertain to

actual bodies o f water, e.g., waters used by seaplanes or other

floatable aircraft. Both Ms. Lammert and Mr. Roberts commented

that Petitioner is not seeking to takeoff or land his helicopters

on Honeymoon Lake. Petitioner intends to use a platform,

situated 15 feet ab ove Honeymoon Lake, on which to land his

helicopters. Ms. Lammert and Mr. Roberts expressed that

Petitioner Ós construct ion of his heliport over water does not

change the fact that his heliport is a fixed wooden structure and

not a Ð body of water. Ñ Conseq uently, Petitioner must obtain

Department approval prior to using the platform for his

helicopters.

20 . Ms. Lammert and Mr. Roberts added that if Petitioner Ó s

helicopters were equipped with pontoons and landed directly on

the surface of Honeymoon Lake, h is Ð landing site Ñ would qualify

for the exemption set forth in section 330.30(3)(f).

2 1. Ms. Lammert and Mr. Roberts further explained that the

Department is responsible for ensuring that aircraft operating in

Florida takeoff and land in safe, controll ed areas. Through

section 330.30, the Department is tasked to inspect all potential

airport sites to make sure that the landing zones do not pose a

danger to any aircraft (or helicopter) that might use them.

S afety is the Department Ó s primary focus when approving private

airport/heliport registrations. For example, as Ms. Lammert

explained, the Department would inspect Petitioner Ó s heliport to

ensure that the platform is sturdy enough and wide enough to bear

the weight of Petitioner Ó s helicopters. The D epartment might

also determine whether the platform should be equipped with a

safety net.

22 . Regarding Petitioner Ó s argument that the Department

should consider his heliport a Ð structure . . . that facilitates

private use Ñ of a body of water, Mr. Rober ts understands the

exemption under section 330.30(3)(f) to include docks that are

used for persons disembarking from a seaplane or other floatable

aircraft. The exemption, however, does not apply if the dock,

itself, serves as the landing site.

23 . Regar ding Petitioner Ó s reference to the FAA analysis

determination, Mr. Roberts explained that while the FAA has

authority to approve the use of the airspace over Honeymoon Lake,

the authority to approve the landing site remains with the

Department.

24 . Based on the evidence and testimony presented at the

final hearing, Petitioner did not prove, by a preponderance of

the evidence, that his heliport qualifies for an exemption under

section 330.30(3)(f). Accordingly, prior to his use of his

heliport to takeoff o r land his helicopters, he must apply for

site approval from the Department.

CONCLUSIONS OF LAW

2 5 . The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter of this proceeding. See

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

26 . The Department is authorized to regulate airports to

include initial airport site approval, registration of private

airports, and the licensing of public use airports. See

§ § 330.29 and 330.30, Fla. Stat ; and F la. Admin. Code R . 14 -

60.005.

2 7 . Petitioner initiated this action seeking an exemption

from Department approval under section 330.30(3)(f) to operate

his heliport to takeoff and land his helicopters . As the party

asserting the affirmative in this administrative proceeding, the

burden of proof is on Petitioner. Dep Ó t of Transp. v. J.W.C. Co. ,

396 So. 2d 778 (Fla. 1st DCA 1981); see also Dep Ó t of Banking &

Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co. , 670

So. 2d 932, 935 (Fla. 1996)( Ð The general rule is that a party

assert ing the affirmative of an issue has the burden of presenting

evidence as to that issue. Ñ ).

2 8 . The preponderance of the evidence standard is

applicable to this case. See § 120.57(1)(j), Fla. Stat.; Dep Ó t

of Banking & Fin., Div. of Sec. & Investor Pro t. v. Osborne Stern

& Co. , 670 So. 2d 932 (Fla. 1996). Preponderance of the evidence

is defined as Ð the greater weight of the evidence, Ñ or evidence

that Ð more likely than not Ñ tends to prove a certain proposition.

S. Fla. Water Mgmt. v. RLI Live Oak, LL C , 139 So. 3d 869, 872

(Fla. 2014).

29 . The issue to determine in this matter is whether

Petitioner is required to obtain the Department Ó s approval prior

to operating his heliport , o r does Petitioner qualify for an

exemption from Department approval under section 330.30(3)(f).

30 . Section 330.30 states, in pertinent part:

(1) SITE APPROVALS; REQUIREMENTS, EFFECTIVE

PERIOD, REVOCATION. Ï

(a) Except as provided in subsection (3),

the owner or lessee of any proposed airport

shall, prior to . . . construction or

establishment of the proposed airport, obtain

approval of the ai rport site from the

department.

* * *

(3) EXEMPTIONS. Ï The provisions of this

section do not apply to:

* * *

(f) Any body of water used for the takeoff

and landing of aircraft, including any land,

building, structure, or any other contr ivance

that facilitates private use or intended

private use.

31 . Petitioner argues that, under the plain meaning of the

section 330.30(3)(f), his heliport should be considered a

Ð structure . . . that facilitates Ñ the use of a private body of

water to tak eoff and land his helicopters. Because his heliport

sits over Honeymoon Lake, not land, Petitioner contends that he

will use a Ð body of water Ñ to operate his heliport. Ð Facilitates Ñ

means to make an action easier, or to help bring about. 4/

Petitioner as serts that the platform he built over his dock makes

it easier (and safer) to land and takeoff from Honeymoon Lake.

Therefore, he qualifies for the exemption under section

330.30(3)(f).

3 2. Conversely, the Department maintains that the primary

goal of s ection 330.30 is to ensure that airport sites do not

expose the aircraft using them to dangerous conditions or

environments. The reason a Ð body of water Ñ is exempt from

Department approval is because Ð water Ñ is not a physical landing

site that the Departm ent can inspect.

33 . Regarding Petitioner Ó s proposed heliport, the Department

asserts that Petitioner seeks to takeoff and land on a fixed

structure - - not Honeymoon Lake itself. Consequently, the exception

is not applicable. In other words, because Pet itioner intends to

land on a wooden platform, and not on the waters of Honeymoon

Lake, he must obtain the Department Ó s approval of his landing site

prior to using his platform as a heliport.

3 4 . The interpretation of section 330.30(3)(f) begins with

th e question of whether the language is clear and unambiguous. 5/

Ð When construing a statute, the court must first look to the

plain meaning of the words used by the Legislature. Ñ Brandy Ó s

Prods. v. Dep Ó t of Bus. & Prof Ó l Reg., Div. of Alcoholic

Beverages & Tobacco , 188 So. 3d 130 (Fla. 1st DCA 2016) (citing

Verizon Bus. Purchasing, LLC v. Dep Ó t of Rev. , 164 So. 3d 806,

809 (Fla. 1st DCA 2015)). Ð When a statute is clear, a court may

not look behind the statute Ó s plain language or resort to rules

of statutory construction to determine legislative intent. Ñ

Dep Ó t of High. Saf. & Motor Veh. v. Peacock , 185 So. 3d 632, 633

(Fla. 1st DCA 2016). See also Holly v. Auld , 450 So. 2d 217, 219

(Fla. 1984)( Ð [W]hen the language of the statute is clear and

unambiguous and conveys a clear and definite meaning, there is no

occasion for resorting to the rules of statutory interpretation

and construction; the statute must be given its plain and obvious

meaning. Ñ ). The undersigned perceives the language and meaning

of section 330.30 to be clear and unambiguous.

35 . Chapter 330 does not define the word Ð water Ñ as used in

the phrase Ð body of water Ñ in section 330.30(3)(f). Where the

Legislature has not specifically defined the words used in a

statute, Ð the language should be gi ven its plain and ordinary

meaning. Ñ Greenfield v. Daniels , 51 So. 3d 421, 426 (Fla.

2010)(citing Sch. Bd. of Palm Beach Cnty. v. Survivors Charter

Schs., Inc. , 3 So. 3d 1220, 1233 (Fla. 2009)(quoting Fla. Birth -

Related Neurological Injury Comp. Ass Ó n v. Fla. Div. of Admin.

Hrgs. , 686 So. 2d 1349, 1354 (Fla. 1997)).

36 . The word Ð water Ñ has a plain and ordinary meaning.

Ð Water Ñ is defined as Ð the liquid that descends from the clouds

as rain, forms streams, lakes, and seas. Ñ Ð Water Ñ is also

defined as Ð a particular quantity or body of water . Ñ Merriam -

Webster Dictionary , at http://www.merriam - webster.com (accessed

October 10, 2018) . See Seagrave v. State , 802 So. 2d 281, 286

(Fla. 2001)( Ð When necessary, the plain and ordinary meaning of

words [in a statu te] can be ascertained by reference to a

dictionary. Ñ ); see also Raymond James Fin. Servs. v. Phillips ,

110 So. 3d 908, 910 (Fla. 2d DCA 2011)( Ð It is appropriate to

refer to dictionary definitions when construing statutes or

rules. Ñ ).

37 . The undersigne d concludes that section 330.30 means

what its plain and unambiguous text clearly conveys. A wooden

platform, even if it is located on, or over, water, i s not a

Ð body of water Ñ as the L egislature used that term in section

330.30(3)(f). Therefore, because Petitioner intends to land his

helicopters on the platform, and not on Honeymoon Lake, itself,

Petitioner Ó s heliport should not be treated as a Ð body of water. Ñ

Neither is it a Ð structure . . . that facilitates private use Ñ of

Honeymoon Lake. This is be cause Petitioner intends to takeoff

and land on the platform, not on the waters of the lake.

Accordingly, Petitioner does not qualify for the exemption under

section 330.30(3)(f). Prior to using his heliport, he must

obtain the Department Ó s approval purs uant to the provisions of

section 330.30.

38 . The undersigned also notes that, a t the final hearing,

the Department offered a persuasive and reasonable interpretation

of section 330.30(3)(f). 6/ The Department expressed that the

exemption from airport sit e approval applies only to landing

sites used by seaplanes or helicopters outfitted with pontoons

that takeoff or land directly on the water. Similarly, a

Ð structure . . . that facilitates private use Ñ of an airport site

on a Ð body of water Ñ would include edifices used by the

passengers or pilots to embark and disembark from the aircraft,

such as attendant docks, ramps, or buildings. The Ð structures Ñ

the Legislature considered in section 330.30(3)(f) do not include

docks when the dock itself serves as the landing site (even if

the dock is situated over water).

3 9. In sum, based on the competent substantial evidence in

the record, Petitioner did not meet his burden of proving that

his platform is a Ð structure . . . that facilitates private use Ñ

of the body of water that is Honeymoon Lake. Accordingly,

Petitioner is not exempt under section 330.30(3)(f) from

obtaining Department approval prior to the takeoff or landing of

his helicopters on the dock structure he intends to use as his

heliport.

RECOMMENDATIO N

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Transportation

enter a final order denying Petitioner Ó s request for an exemption

from Department approval under section 330.30(3)(f) prior to the

use of his wooden platform as a heliport.

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

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bu ilding

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 2 5 th day of October, 2018 .

ENDNOTE S

1/ Unless otherwise n oted, all statutory references are to the

2018 codification of the Florida Statutes.

2/ The final hearing was originally scheduled for July 20, 2018.

Following the transfer of the case on July 9, 2018, the final

hearing was reset for August 9, 2018, to a ccommodate the

undersigned Ó s hearing calendar. Thereafter, at the parties Ó

request during a case status conference, the final hearing was

moved to August 21, 2018, which allowed the parties time to

narrow the focus of the issues to be heard at the final h earing.

3/ Petitioner represents that the Florida Department of

Environmental Protection has disclosed that it has no

jurisdiction over the heliport because Honeymoon Lake is not

considered to be sovereign submerged state land .

4/ See Merriam - Webster D ictionary , at http://www.merriam -

webster.com (accessed October 10, 2018) .

5/ Legislative intent is the polestar that guides a court Ó s

statutory construction analysis. Ð To discern legislative intent,

a court must look first and foremost at the actual lan guage used

in the statute. Ñ Larimore v. State , 2 So. 3d 101, 106 (Fla.

2008). Ð The Legislature must be understood to mean what it has

plainly expressed and this excludes construction . The

Legislative intent being plainly expressed, so that the act read

by itself or in connection with other statutes pertaining to the

same subject is clear, certain and unambiguous, the courts have

only the simple and obvious duty to enforce the law according to

its terms. Ñ DMB Inv. v. Islamorada , 225 So. 3d 312, 317

( Fla. 3d DCA 2017)(quoting Van Pelt v. Hilliard , 78 So. 693, 694 -

95 (Fla. 1918) ) .

6/ Florida courts, as well as DOAH, defer to agency

interpretation of their own statutes. See Paloumbis v. City of

Miami Beach , 840 So. 2d 297, 298 - 99 (Fla. 3d DCA 2003)(ex plaining

that Ð administrative interpretation is entitled to judicial

deference as long as it is within the range of possible

permissible interpretations Ñ ); Bd. of Trs. of the Int. Impust

Fund v. Levy , 656 So. 2d 1359, 1363 (Fla. 1st DCA 1995)( Ð If an

ag ency Ó s interpretation of its governing statutes is one of

several permissible interpretations, it must be upheld, despite

the existence of reasonable alternatives. Ñ ); and McQuade v. Fla.

Dep Ó t of Corr. , 51 So. 3d 489, 492 (Fla. 1st DCA 2010) ( Ð When an

agenc y interprets [a statute within its substantive

jurisdiction], this Court will not reverse based on that

interpretation unless it is clearly erroneous. Ñ ) .

COPIES FURNISHED:

Daniel P. Faherty, Esquire

Telfer, Faherty & Anderson, P.L.L.C.

Suite 201

815 South Washington Avenue

Titusville, Florida 32780

(eServed)

Susan Schwartz, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

(eServed)

Andrea Shulthiess, Clerk of Agency Proceedings

Departmen t of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

(eServed)

Erik Fenniman, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, F lorida 32399 - 0450

(eServed)

Michael J. Dew, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

Tallahassee, Florida 32399 - 0450

(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. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.