19-004039 Jeffrey Ray Sundwall vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Thursday, June 4, 2020.

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

Sundwall was a “derelict vessel” within the meaning of section 823.11(1)(b)1.,

Flori da Statutes (2017) , 1 and thus subject to sections 376.15(3)(a)

and 705.103, Florida Statutes.

P RELIMINARY S TATEMENT

“It is unlawful for a person, firm, or corporation to store, leave, or abandon

any derelict vessel in this state.” § 823.11(2), Fla. Stat. A person who does so

is guilty of a first degree misdemeanor. § 823.11(5), Fla. Stat.

Section 823.11(1)(b)1. defines a “derelict vessel” as a vessel that is left, stored,

or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon an y public waters of this state.” Section 376.15(3)(a) empowers the

Commission to “relocate, remove, or cause to be relocated or removed any

derelict vessel as defined in s. 823.11 from public waters.”

In addition, all costs incurred by the Commission durin g the course of

relocating or removing the derelict vessel are recoverable against the vessel owner. § 823.11(3)(b), Fla. Stat.

The Commission issued a notice to Mr. Sun d wall stating that he had been

identified as the last known owner of a sailboat (“the Sea Joy”) that had been

deemed a derelict vessel and transported to a vessel storage facility in the

Florida Keys . The notice advised Mr. Sundwall that he had 30 days to claim

the Sea Joy and that the Commission intended to destroy the vessel if he

failed to do so. Mr. Sundwall responded by requesting an administrative

hearing and disputing the Commission’s assertion that he had abandoned the Sea Joy. On July 30, 2019, the Commission referred this matter to DOAH.

The undersigned initially scheduled the fin al hearing for October 9, 2019 ,

but t he parties filed a “Joint Motion for Cont inuance” on September 1, 2019.

After finding that the parties’ request was supported by good cause, the

1 Unless stated otherwise, all statutory references shall be to the 2017 version of the Florida

Statutes .

undersigned issued an Order on September 20, 2019, continuing the final

he aring to November 21, 2019.

After learning during a telephonic case management conference on

November 7, 2019 , that Mr. Sundwall need ed additional time to conduct

discovery, the undersigned canceled the final hearing and required the parties to submit mut ual dates of availability for a final hearing in January

or February of 2020. On November 15, 2019, the undersigned issued an

Order rescheduling the final hearing for February 7, 2020.

After a great deal of motion practice, the final hearing was held as

scheduled on February 7, 2020. Mr. Sundwall appeared telephonically and

testified on his own behalf . He also presented testimony from Arnaud Girard -

D’alvissin and Scott King. The undersigned accepted Petitioner’s Exhibits A

through W and Y into evidence .

The Commission presented testimo ny from Noel Garcia, Officer David

Bellv ille, Tinsley Myrick, Lieutenant Andy Cox, Lieutenant Lindsay

McDonald, and Major Robert Rowe. Respondent’s Exhibits 1 through 3 and 5

through 12 were accepted into evidence.

Bas ed on an agreement reached at the close of the final hearing, the

undersigned established May 7, 2020, as the deadline for the parties to

submit proposed recommended orders.

Neither party ordered a transcript of the final hearing.

The Commission filed i ts Proposed Recommended Order on April 27, 2020.

Mr. Sundwall did not file a proposed recommended order and did not request

that the deadline for doing so be extended.

F INDINGS OF F ACT

Based on the evidence adduced at the final hearing, and the record as a

wh o le, the following Findings of Fact are made :

The Parties

1. The Commission is empowered to remove, or cause to be removed,

derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3),

Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition

upon any public waters of this state.” § 823.11(1)(b)1., Fla. Stat.

2. Mr. Sundwall was the registered owner of a 28 - foot sailboat named the

Sea Joy.

Facts S pecific to the Instant Case

3. Lieutenant Andy Cox of the Commission found the Sea Joy anchored off

Wisteria Island in the Florida Keys on March 27, 2017. The Sea Joy had an expired registration decal, and a large amount of seaweed on the outboard

motor , w hich probably rendered the motor inoperative. The Sea Joy had been

left open and exposed to the elements, and Lieutenant Cox observed one - inch

deep, green water inside the vessel. Lieutenant Cox also determined that the

Sea Joy had no working bilge pumps o r battery power.

4. Lieutenant Cox initiated a derelict vessel investigation. While the

Commission did not take custody of the Sea Joy at that time, Lieutenant Cox

affixed a large, red sticker to the Sea Joy announcing that the vessel’s owner had 5 days be fore the Commission disposed of it p ursuant to its authority

under c hapter 705.

5. Lieutenant Cox met with Mr. Sundwall on approximately March 28,

2017, in a Florida Keys jail and served him with three infraction citations.

Lieutenant Cox also provided Mr. Sundwall with a written notice indicating

the Commission considered the Sea Joy to be a derelict vessel.

6. On July 24, 2017, t he County Court for Monroe County issued an Order

requiring the Monroe County Sheriff’s Office and the Commission to pre serve

the Sea Joy as essential evidence in a criminal case against Mr. Sundwall.

Thus, the Sea Joy could not be “destroyed, removed, altered, moved, or

otherwise disposed of.”

7. After Hurricane Irma struck Florida in September of 2017 and wrecked

sever al hundred vessels, the Commission partnered with the Coast Guard in

an effort to identify and remove derelict vessels. If an owner of a derelict

vessel waived his or her ownership interest, then the State of Florida would

not charge for a vessel’s removal and disposal. 2

8. Wisteria Island is owned by the FEB Corporation. In November of 2017,

the Commission found the Sea Joy hard aground on the shore of Wisteria

Island, and the Sea Joy could not be moved without mechanical assistance.

The Sea Joy had no mas t or sail, and the vessel was still left open and

exposed to the elements. In sum, the Sea Joy was nothing more than a hull at

that point.

9. Contemporaneous photographs and video of the Sea Joy indicate that it

was resting on “wrack lines” left by th e tide. Those wrack lines demonstrated

that the Sea Joy was on public waters at high tide. 3

10. In response to a request for reconsideration from the State of Florida,

the Monroe County Court issued an Order on December 12, 2017, allowing

the State to rem ove the Sea Joy from Wisteria Island.

11. On December 17, 2017, the Commission transported the Sea Joy to a

marina in Marathon, Florida.

2 The Commission’s attorney announced during the final hearing that the Commission would

not seek to recover the costs of removing and disposing of the Sea J oy from Mr. Sundwall .

Ordinarily, the owner of a derelict vessel is responsible for all costs a ssociated with its

removal and destruction. See § § 376.15(3)(a), 705.103(4), and 823.11(3)(b), Fla. Stat.

However, in the aftermath of Hurricane Irma, the State of Florida assumed all of those costs.

3 This finding is based on the testimony of Major Robe rt Rowe of the Commission, and the

undersigned found him to be a credible and persuasive witness.

12. Officer David Bellville of the Commission met with Mr. Sundwall on

January 4, 2018, at the Stock Islan d Detenti on Center in Key West. Officer

Bellville served Mr. Sundwall with a notice stating that he had 30 days to

take possession of the Sea Joy or it would be destroyed pursuant to th e

Commission’s authority under c hapter 705. Officer Bellville also served

Mr. S undwall with an election of rights form stating he had 21 days to

protest the Commission’s proposed action. Mr. Sundwall declined to waive his

property interest in the Sea Joy and ultimately executed the election of rights

form and a request for an adminis trative hearing on January 20, 2018.

13. Mr. Sundwall’s hearing request was postmarked on January 23, 2018,

and received by the Commission on January 29, 2018. Because

Mr. Sundwall’s documents were received after the 21 - day deadline, the

Commission had th e Sea Joy destroyed on February 21, 2018, and issued an

Order on March 6, 2018, dismissing Mr. Sundwall’s hearing request with prejudice.

14. Mr. Sundwall appealed the Commission’s Order to the First District

Court of Appeal, and the appellate court issued an opinion in Sundwall v.

Florida Fish & Wildlife Conservation Commission , 271 So. 3d 1239 (Fla. 1 st

DCA 2019), on May 16, 2019, reversing and remanding the Commission’s

dismissal:

After Hurricane Irma struck Florida in 2017, the

Florida Fish and Wildlife Conservation

Commission (FWC) identified Mr. Sundwall as the

owner of a boat declared derelict upon the waters of

Florida. See § 823.11, Fla. Stat. (2017) (defining

derelict vessels and empowering FWC to deal with

them). Mr. Sundwall was incarcerated at t he time.

FWC sent Mr. Sundwall notice of the declaration,

an explanation of his rights, an Election of Rights

form, and a form for a Petition for Administrative

Proceeding. The notice stated that a failure to

make any election within twenty - one days from

r eceipt of the notice would constitute a waiver of

the right to a hearing.

Mr. Sundwall signed a receipt for these documents

on January 4, 2018. The twenty - first day after that

fell on January 25, 2018. He signed the Election of

Rights form, requesting a he aring; and also

completed the Petition for Administrative

Proceeding, dating both of his signatures

January 20, 2018. There was no certificate of

service or institutional date stamp on any of the

papers, nor any institutional mail log indicating

when he g ave the papers to prison officials. The

envelope was postmarked January 23, 2018. FWC

stamped it as received on January 29, 2018.

FWC dismissed the petition with prejudice because

FWC did not receive it within twenty - one days and

Mr. Sundwall did not requ est an extension within

that period. FWC's order of dismissal acknowledged

that the envelope from Mr. Sundwall was

postmarked January 23, 2018. However, FWC

relied on Florida Administrative Code Rule 28 -

106.104(1), which defines filing as receipt by the

ag ency clerk during normal business hours.

In his pro - se brief, Mr. Sundwall relies on

the January 20 date of his signatures and the

January 23 postmark date, arguing that he is

entitled to the benefit of the prison mailbox rule

under Haag v. State , 591 So . 2d 614 (Fla.

1992). FWC does not dispute that argument, but

argues that Mr. Sundwall provided no proof that he

placed his papers in the hands of prison officials

before expiration of the deadline; i.e., no

institutional mail stamp or log and no certifica te of

service. The record does not reflect whether

Mr. Sundwall’s institution utilizes dated mail

stamps or logs, but one reason there were no

certificates of service is because none of the forms

that FWC supplied to him contained a certificate of

service .

In a literal sense, however, Mr. Sundwall

"provided" FWC a postmarked envelope that

evidences timeliness. He argues on appeal that

FWC calculated the time erroneously, and he

points out that the envelope was postmarked on

January 23. The postmark date wa s before

expiration of the twenty - one - day period for

requesting a hearing, and therefore the petition

necessarily was submitted to prison officials before

the deadline. FWC acknowledged the postmark

date in its order of dismissal, and the postmarked

envelo pe is in the record. We therefore reverse the

order of dismissal and remand for further

proceedings on Mr. Sundwall's petition. [ 4 ]

Ultimate Findings

15. There is no dispute that the Sea Joy was a “vessel” within the meaning

of section 327.02(46), Florida Statutes.

16. When it was beached on Wisteria Island, the Sea Joy was a “derelict

vessel” within the meaning of section 823.11(1)(b)1. It was left or abandoned

in a wrecked, junked, or substantially dismantled condition upon the public waters of this state . While the Sea Joy no longer exists, the photographic

evidence and the witness testimony conclusively demonstrate that it was wrecked or substantially dismantled by the time it ran aground on Wisteria Island.

17. The photographic evidence also demonstrat ed that the Sea Joy was

upon the State of Florida’s public waters at high tide.

18. Mr. Sundwall made several factual arguments during the final

hearing. For instance, section 823.11(1)(b)3. defines a “derelict vessel” as one that is “[d]ocked, grounded , or beached upon the property of another without

the consent of the owner of the property.” Mr. Sundwall testified that he had

permission for the Sea Joy to be on Wisteria Island. Mr. Sundwall’s argument

is not persuasive because the Commission determined the Sea Joy to be a

4 To whatever extent that Mr. Sundwall is seeking damages from the Commission for the Sea

Joy’s destruction, he must pursue that claim before a different tr ibunal. DOAH’s role in this

matter is limited to making findings as to whether the Sea Joy was a “derelict vessel” within

the meaning of section 823.11(1)(b)1. and thus subject to sections 376.15(3)(a) and 705.103.

derelict vessel pursuant to section 823.11(1)(b)1., not section 823.11(1)(b)3.

However, even if the Commission had deemed the Sea Joy to be derelict

pursuant to section 823.11(1 ) (b)3., Mr. Sundwall’s testimony that he had

permission to keep the Sea Joy on the shore of Wisteria Island was

uncorroborated and unpersuasive.

19. In preparation to take control of the Sea Joy, Mr. Sundwall asserted

that a friend of his had attempted to inspect the Sea Joy while it was beached

on Wisteria Island. He claimed that the Commission forced Mr. Sundwall’s

friend away from the wrecked vessel.

20. Because the Commission was dealing with several hundred displaced

vessels in the aftermath of Hurricane Irma, it is very unlikely that the

Commission would have been in a position (or to have been inclined) to

prevent any willing person from removing the derelict Sea Joy from

Wisteria Island or inspecting it. Moreover, the undersigned generally found Mr. Sundwall’s testimony on this point to be unpersu asive and self - serving.

Mr. Sundwall’s witnesses did not present any persuasive testimony to

corroborate his assertions.

21. Mr. Sundwall also argued that the instant case is part of the

Commission’s ongoing effort to retaliate against him for undermi ning a

criminal investigation. Even if that were the case, there is no evidence that

the Commission left the Sea Joy anchored off Wisteria Island or caused it to

become a derelict vessel.

22. Mr. Sundwall asserts that he has been denied due process. Howe ver,

the facts refute that assertion because: (a) he was given notice of the

Commission’s proposed action to dispose of the Sea Joy; (b) he had an

opportunity to request a hearing; (c) his case was referred to DOAH; and (d) a formal administrative hearing was conducted on February 7, 2020, at which

he fully participated.

C ONCLUSIONS OF L AW

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

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

24. It is unlawful for a person to store, lea ve, or abandon any derelict

vessel in this State. § 823.11(2), Fla. Stat.

25. Sections 376.15(3)(a) and 823.11 empower the Commission to remove

derelict vessels from public waters .

26. Section 823.11(1)(b)1. defines a “derelict vessel” to include “a vessel , as

defined in s. 327.02, that is left or abandoned . . . [i]n a wrecked, junked, or

substantially dismantled condition upon any public waters of this state.”

27. When a statute does not define terms used therein, one can refer to a

dictionary in order t o ascertain their intended meaning. See L.B. v. State , 700

So. 2d 370, 372 (Fla. 1997)(stating that “a court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to

ascribe to the term.”).

28. The online edit ion of the Merriam - Webster Dictionary defines the term

“left” as the past tense of the word “leave.” It defines the term “abandoned,”

in pertinent part, as to leave “without needed protection, care, or support.”

The term “wreck” is defined, in pertinent pa rt, as “something cast up on the

land by the sea” or “a hulk or the ruins of a wrecked ship.” See “left,”

“abandoned,” and “wreck,” https://meriam - webster.com (last visited May 13 ,

2019).

29. Because it is asserting that the Sea Joy was a “derelict vessel” within

the meaning of section 823.11(1)(b ) 1., the Commission bears the burden of

proof. Fla. Dep’t of Transp. v . J.W.C. Co. , 396 So. 2d 778, 788 (Fla. 1 st DCA

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

proceeding s, ‘the burden of proof, apart from statute, is on the party asserting

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

Balino v. Dep’t of HRS , 348 So. 2d 349 (Fla. 1 st DCA 1977) ) .

30. Because section 823.11(1)(b)1. does not provi de for a standard of proof

in proceed ings such as the instant case, c hapter 120 , Florida Statutes,

indicates that the preponderance of the evidence standard applies.

§ 120.57(1)(j), Fla. Stat. (providing that “[f]indings of fact shall be based upon

a prep onderance of the evidence, except in penal or licensure disciplinary

proceedings or except as otherwise provided by statute, and shall be based

exclusively on the evidence or record and on matters officially recognized.”).

However, one could reasonably arg ue that the Commission should be

required to prove its case by clear and convincing evidence. See Dep’t of Law

Enf. v. Real Property , 588 So. 2d 957, 968 (Fla. 1991)(holding that “due proof”

under the Florida Contraband Forfeiture Act “constitutionally mea ns that

the government may not take an individual’s property in forfeiture

proceedings unless it proves, by no less than clear and convincing evidence, that the property being forfeited was used in the commission of a crime.”).

31. Any uncertainty abo ut the appropriate standard of proof is a moot

point in the instant case because the Commission proved by clear and

convincing evidence that the Sea Joy became a “derelict vessel” within the

meaning of section 823.11(1)(b)1. after Hurricane Irma left it be ached on

Wisteria Island. The Sea Joy had been “left,” “abandoned,” “wrecked,” and “substantially dismantled” by that point in time. Moreover, the wrack lines

on the shore where the Sea Joy rested demonstrated that the vessel was on

public waters at high t ide. Waters of the State include “the shores between

ordinary high and low water marks.” See, e.g., Walton Cty. v. Stop the Beach

Renourishment, Inc. , 998 So. 2d 1102, 1110 (Fla. 2008); Brickell v. Trammel ,

77 Fla. 544, 558 (Fla. 1919); State v. Gerbing 56 Fla. 603, 610 (Fla. 1908).

R ECOMMENDATION

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

R ECOMMENDED that the Florida Fish and Wildlife Conservation Commission

issue a Final Order deeming the Sea Joy to have been a “derelict vessel”

within the meaning of section 823.11(1)(b)1. and that the Commission was

authorized under section 376.15(3)(a) to relocate or remove the Sea Joy.

D ONE A ND E NTERED this 1st day of June, 2020, in Tallahassee, Leon

County, Florida.

G. W. C HISENHALL

Admin istrative 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 Hearin gs

this 1st day of June, 2020.

C OPIES F URNISHED :

Brandy Elaine Elliott, Esquire

Florida Fish & Wildlife Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399

(eServed)

Jeffrey Ray Sundwall, 829113

Jackson Correctional Institutio n

5563 10th Street

Malone, Florida 32445

Eric Sutton, Executive Director

Florida Fish and Wildlife Conservation Commission

Farris Bryant Building 620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Emily Norton, General Counsel

Florida Fish and Wildlife Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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

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

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

case.