20-000753 William Hackett vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Friday, August 28, 2020.

Summary: Petitioner's vessel is derelict, and therefore, subject to the provisions of sections 376.15(3), 823.11, 705.101(3), and 705.103, Florida Statutes.

P RELIMINARY S TATEMENT

By letter dated January 8, 2020, Respondent, Florida Fish and Wildlife

Conservation Commission ( " FWC " ), notified Petition er that a vessel owned by

him, " Imagine, " was derelict upon the public w aters of the State in violation

of section 823.11; and , therefore, subject to the provisions of sections 376.15,

823.11, 705.101(3), and 705.103.

Dissatisfied with the decision, Petitioner timely requested a formal

administrative hearing. Subsequently, F WC referred the matt er to DOAH

to assign an administrative law judge to cond uct the final hearing. On

March 10, 2020, the undersigned set the final hearing for April 20, 2020. On

April 7, 2020, the parties filed a joint motion to continue the final hearing

based on issues regarding the novel Coronavirus ("COVID - 19") . On April 9,

2020, the undersigned entered an Order granting the motion and reset ting

the final hearing for July 23, 2020.

The final hearing was partially held on July 23, 2020, by Zoom c onfer ence

with both parties present. However, due to technical difficulties, the hearing

was terminated and rescheduled for August 13, 2020. The hearing concluded

on August 13, 2020, with both parties present. At the hearing, Petitioner testified on his own beh alf and did not offer any exhibits into evidence. FWC

presented the test imony of FWC Officer Glen Way. FWC’s Exhibits 1, 2(a)

through 2(g), 3(a) through 3(f), 5, 7(a) through 7(k), and 8 were received into evidence.

A court reporter was present at the he aring, but no transcript was filed at

DOAH. FWC timely filed a proposed recommended order, which was given

consideration in the preparation of this Recommended Order. Petitioner did

not file a proposed recommended order. Unless otherwise indicated, all

sta tutory references are to the 2019 Florida Statutes.

F INDINGS OF F ACT

1. On January 4, 2020, Officer Glen Way, a sworn FWC law enforcement

of ficer, was on water patrol in a n FWC patrol vessel within the public waters

of Key West Harbor in Monroe County, Flo rida, when he observed a vessel (a

32 - foot 196 7 Hatteras known as " Imagine " ) sunk en and nearly 90%

submerged. There were no persons on board and the vessel looked

abandoned. The electrical, propulsion, steering systems , and engines were

well u nder sea wate r and inoperable. Based on his investigation, Officer Way

concluded that the vessel suffered a severe marine casualty, had been

discarded as sunk with no intrinsic value, and was derelict. His investigation further revealed that the ve ssel was owned by Pet itioner.

2. On January 8, 2020, Officer Way spoke with Petitioner and explained to

him the derelict vessel process. That same day, Officer Way emailed Petitioner an Acknowledgement of Receipt of Documentation Related to A

Derelict Vessel Determination.

3. Subsequently, Petitioner had the vessel raised from being sunken and

tied to a commercial salvage bar ge with a crane. Although the vessel was no

longer sunk, it had been sunk for over two months and Officer Way observed

that no corrective action had been taken by Petitioner to correct the syste ms.

4. Significantly, Officer Way observed that the vessel’s propulsion and

steering systems were still inoperable, the onboard engine was substantially

corroded, and marine growth was visible along the waterline of the entire

vessel. In addition, windows were boarded up with plywood, blocking the

ability to safely navigate or operate the vessel upon the water. Officer Way

also observed a 25 - horsepower outboard motor affixed to the transom of the

vessel. However, Off icer Way persuasively and credibly tes tified that a

25 - horsepower outboard motor is insufficient to propel the vessel safely upon

the public waters of the State of Florida. In sum, the vessel was still wrecked, junked, substantia lly dismantled, and dereli ct.

5. Subsequently, on July 28, 2020, and at 8:30 a.m. on August 13, 2020,

Officer Way observed that the vessel was again sunk, inoperable, abandoned,

left, wrecked, junked upon the public waters of the State, and derelict. The

v essel has no intrinsic val ue.

6. At the hearing on August 13, 2020, Petitioner candidly acknowledged

that the vessel was a gain sunk and not operational.

C ONCLUSIONS OF L AW

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

proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

8. This is a de novo proceeding intended to formulate final agency action.

Fla. Dep’t of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 785 (Fla. 1 st

DCA 1981).

9 . Pursuant to sections 823.11 and 376.15, FWC is designated a s the State

agency empowered to relocate, remove, or cause to be relocated or removed ,

any " derelict vessel " from the public waters of the State of Florida. All costs

incurred to remove or relocate the vessel may be recovered against the owner.

§ 823.11(3) (b), Fla. Stat.

10 . Pursuant to section 823.11(1)(b)1., a " derelict vessel " includes a vessel

" that is left, stored, or abandoned " in a " wrecked, junked, or substantially

dismantled condition upon any public waters of this state. "

1 1 . In addition, section 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, or partially

dismantled condition or has no intrinsic value to the rightful owner. The term

includes derelict vessels as defined in s. 823.11. "

1 2 . Section 705.103 provides a procedure for abandoned property.

1 3 . Turning to the instant case, the persuasive and credible evidence

adduced at hearing demonstrates, as detail ed above, that the subject vessel is

currently sunken upon the public waters of the State of Florida in a wrecked,

inoperative, and substantially dismantled condition. The persuasive and

credible evidence adduced at hearing demonstrates that the vessel is derelict

and abandoned.

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

enter a final order finding Petitioner’s vessel , " Imagine , " derelict under

section 823.11 , abandoned under chapter 705 , and subject to the provisions of

sections 376.15(3), 823.11, 705.101(3), and 705.103.

D ONE A ND E NTERED this 28th day of August, 2020 , in Tallahassee, Leon

County, Florida.

D ARREN A. S CHWARTZ

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 28 th day of August , 2020 .

C OPIES F URNISHED :

Brandy Elaine Elliott, Esquire

Florida Fish and Wildlife Conservation

Commission

620 South Meridian Street

Tallahassee, Florida 32399

(eServed)

William Hackett

419 Southard Street

Key West, Florida 33040

Emily Norton, Gen eral Co unsel

Florida Fish and Wildlife Conservation

Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1050

(eServed)

Eric Sutton, Exec utive Director

Florida Fish and Wildlife Conservation

Commissi on

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 except ions to this Recommended

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