21-000627 Robert Sweeney vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Tuesday, April 27, 2021.

Summary: Petitioner's vessel (a sailboat) is a derelict vessel and subject to the provisions of sections 376.15(3)(a), 705.101(3), 705.103(2)(4), and 823.11.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R OBERT S WEENEY ,

Petitioner ,

vs. Case No. 21 - 0627

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice to all parties, Administrative Law Judge Lynne A.

Quimby - Pennock of the Division of Administrative Hearings (ÑDOAHÒ)

conducted an evidentiary hearing by Zoom conference from Tallahassee,

Florida, on April 6, 2021.

A PP EARANCES

For Petitioner: No Appearance

For Respondent: Brandy Elanie Elliot, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

Whether the Flor ida Fish and Wildlife Conservation Commission

(ÑRespondentÒ or Ñthe CommissionÒ) correctly determined that a vessel owned

by Robert Sweeney (ÑPetitionerÒ) was a Ñderelict vesselÒ or an Ñabandoned

vesselÒ within the meaning of section 823.11, Florida Statut es (2020), and,

therefore, subject to the provisions of sections 823.11, 705.101(3),

376.15(3)(a) , and 705.103, Florida Statutes (2020).

P RELIMINARY S TATEMENT

On November 17, 2020, Respondent, via Lieutenant George McCorkle

from the CommissionÔs Division o f Law Enforcement, handed Mr. Sweeney

notice of his Ñderelict vessel, a 1968 Islander Yacht, 37 - foot white sailboat

#FL4412SK.Ò Petitioner acknowledged receipt of the documents related to a

derelict vessel determination that same day.

Through an Election of Rights ( Ñ EOR Ò ) form and a Petition for

Administrative Proceeding, each dated December 7, 2020, Mr. Sweeney

requested an administrative hearing, disputing that:

The boat was not aground due to storm but due to

someone cutting my anchor line.

Mr. Sweene y further alleged:

Due to criminal action against boat setting her

adrift by cutting anchor line on or about 9/21/20

this well cared for vessel should not be considered

derelict [sic]

On February 17, 2021, Respondent referred the matter to DOAH. An

Initi al Order was issued on February 17, 2021, seeking input from both

parties to facilitate a hearing. On February 22, 2021, a joint response to the

Initial Order was filed. On February 23, 2021, a Notice of Hearing by Zoom

Conference ( Ñ Hearing Notice Ò ) and an Order of Pre - hearing Instructions

( Ñ OPI Ò ) were issued to both parties. 1 The case was transferred to the

undersigned on March 17, 2021.

The final hearing was scheduled for and completed on April 6, 2021.

1 Neither the Hearing Notice n or the OPI were returned to DOAH as undeliver able .

At the beginning of the hearing, RespondentÔs cou nsel moved for the

dismissal of the hearing. The motion was denied.

Mr. Sweeney did not appear. The Commission presented the testimony of

Lieutenant McCorkle and Major Robert Rowe. RespondentÔs Exhibits 1

through 5 were accepted into evidence.

A court r eporter was in attendance to preserve the hearing; however, no

transcript was ordered. At the close of the hearing, the ten - day deadline by

which to file proposed recommended orders ( Ñ PROs Ò ) was announced.

The Commission timely submitted its PRO which ha s been considered in

the preparation of this Recommended Order. To date, Mr. Sweeney has not

submitted a PRO. To the extent the CommissionÔs PRO contained hearsay

evidence not supported by direct testimony or evidence, that information has

not been conside red.

Any references to Florida Statutes, administrative rules, or the

CommissionÔs rules are to the versions in effect at the time of the allegations,

unless otherwise indicated.

F INDINGS OF F ACT

Based on the competent substantial evidence adduced at th e final hearing,

and the record as a whole, the following Findings of Fact are made:

1. Mr. Sweeney is the registered owner of a 37 - foot sailboat, Islander 37,

registration number FL4412SK ( Ñ sailboat Ò ) , found in the public waters of

Manatee County, Florida .

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

derelict vessel s from the waters of Florida. §§ 376.15(3)(a) and 823.11(3), Fla.

Stat. A vessel is considered to be ÑderelictÒ if it is left, stored , or abandoned

Ñ[ i ] n a wrecked , junked, or su bstantially dismantled condition upon any

public waters of Florida . Ò § 823.11(3), Fla. Stat.

3. Lieutenant McCorkle is a sworn law enforcement officer ( Ñ LEO Ò ) with

14 year s of experience with the Commission. His training in derelict vessel

investigat ions includes over 50 hours of derelict vessel identification and

investigation.

4. Major Rowe is a sworn LEO and 22 - year employee of the Commission.

He began his career as a water patrol officer and worked his way through the

ranks of lieutenant, captain , and is now a major . He developed and fine - tuned

the CommissionÔs derelict vessel training program, and is no w in the

CommissionÔs mentoring program to become a lieutenant colonel.

5. In mid - November 2020 (after Tropical Storm Eta passed through

Florida) , Lieutenant McCorkle saw the sailboat in the Manatee River in

Manatee County, Florida. He initiated a derelict vessel investigation.

6. Lieutenant McCorkle observed the sailboat to be in a wrecked

condition, grounded on submerged lands, and listing (lean ing) to the port

(left) side. He observed the keel, the elongated protrusion on the bottom of

the sailboat that provides stability to the vessel, to be ÑimbeddedÒ (or stuck)

in submerged land . Because the sailboat was stuck on submerged land, it

could not be moved Ñwithout some kind of mechanical assistance.Ò

7. Lieutenant McCorkle located the sailboat Ôs registered owner,

Mr. Sweeney , at his residence. Mr. Sweeney acknowledged he was the owner

of the sailboat.

8. On November 17, 2020, Lieutenant McCorkle h and - delivered a Ñderelict

vessel packetÒ to Mr. Sweeney. This packet provided that the Commission

had determined that the sailboat was in a derelict condition and provided the

following description:

The above vessel is being stored, left or abandoned

in a wrecked condition upon public waters of this

state. The vessel is currently aground as a result of

TS Eta at N 27° 31.9771 W 082°38.4427 .

9. I n Lieutenant McCorkleÔs presence , Mr. Sweeney acknowledged receipt

for the Ñderelict vessel packet.Ò Lieutenant McCorkle understood that

Mr. Sweeney did not have the financial resources to remove the sailboat at

that time.

10. In November 2020, Lieutenant McCorkle took a series of three

pictures of the sailboat. These pictures confirmed that Mr. SweeneyÔs sailboat

w as on the public waters of Florida in Manatee County. The pictures showed

the sailboatÔs registration number, its rudder was partially submerged, the

keel was imbedded in submerged lands, and the sailboat was listing to the

port side, with the starboard si de hull exposed to the air. The lines to the

sails appeared to be connected to the mast or appropriate cleats. At that time,

Lieutenant McCorkle placed the CommissionÔs notice of derelict vessel on the

sailboatÔs starboard bow, such that it was visible fro m the navigable

waterway.

11. Approximately two weeks before the hearing, Lieutenant McCorkle

again observed the sailboat in the same location and in a similar condition,

listing to the port side. Lieutenant McCorkle took two more photographs of

the sailbo at which remained in the location where it was first observed, stuck

in the submerged lands, and listing to the port side. Additionally, the sailboat

appeared to be deteriorating, in that some of the lines were no longer

connected to cleats, but were hangi ng from the mast and now dangling down

towards the water.

12. Lieutenant McCorkle found the sailboat to be in a wrecked condition,

and considered it a derelict vessel.

13. Major Rowe did not participate in the investigation of this sailboat.

Further, he di d not discuss the sailboat investigation with any of the LEOs

involved. Major Rowe did review the two sets of pictures taken, and based on

his years of experience and training testified that this sailboat was a Ñclassic

example of a wrecked vessel,Ò and th us a derelict vessel.

14. The testimony of Lieutenant McCorkle and Major Rowe was

unrefuted.

C ONCLUSIONS OF L AW

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

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

16. Section 376.15 prov ides in pertinent part:

(1) As used in this section, the term:

(a) ÑCommissionÒ means the Fish and Wildlife

Conservation Commission.

* * *

(2) It is unlawful for any person, firm, or

corporation to store, leave, or abandon any derelict

vessel a s defined in s. 823.11 in this state.

(3)(a) The commission, officers of the commission,

and any law enforcement agency or officer specified

in s. 327.70 are authorized and empowered to

relocate, remove, or cause to be relocated or

removed any derelict ve ssel as defined in s. 823.11

from public waters. All costs, including costs owed

to a third party, incurred by the commission or

other law enforcement agency in the relocation or

removal of any abandoned or derelict vessel are

recoverable against the owner of the vessel. The

Department of Legal Affairs shall represent the

commission in actions to recover such costs.

17. Section 823.11 provides in pertinent part:

(1)(b) ÑDerelict vesselÒ means a vessel, as defined

in s. 327.02, that is left, stored, or abandoned:

1. In a wrecked, junked, or substantially

dismantled condition upon any public waters of this

state.

* * *

(2) It is unlawful for a person, firm , or corporation

to store, leave, or abandon any derelict vessel in

this state.

(3) The commission, officers of the commission,

and any law enforcement agency or officer specified

in s. 327.70 are authorized and empowered to

relocate, remove, or cause to be relocated or

removed a derelict vessel from public waters if the

derelict vessel obstructs or threatens to obstruct

navigation or in any way constitutes a danger to

the environment, property, or persons. The

commission, officers of the commission, or an y

other law enforcement agency or officer acting

under this subsection to relocate, remove, or cause

to be relocated or removed a derelict vessel from

public waters shall be held harmless for all

damages to the derelict vessel resulting from such

relocatio n or removal unless the damage results

from gross negligence or willful misconduct.

18. Section 327.02 , Florida Statutes, provides in pertinent part:

(43) ÑSailboatÒ means a vessel whose sole source of

propulsion is the wind.

* * *

(46) ÑVesselÒ is synonymous with boat as referenced

in s. 1(b), Art. VII of the State Constitution and

includes every description of watercraft, barge, and

airboat, other than a seaplane on the water, used or

capable of being used as a means of transportation

on water.

(47) ÑWaters of this stateÒ means any navigable

waters of the United States within the territorial

limits of this state, the marginal sea adjacent to

this state and the high seas when navigated as a

part of a journey or ride to or from the shore of this

state, and all the inland lakes, rivers, and canals

under the jurisdiction of this state.

19. Section 705.101(3) provides in pertinent part:

ÑAbandoned propertyÒ means È includes derelict

vessels as defined in s. 823.11.

20. Section 705.103(4) provides :

The owner of any abandoned or lost property who,

after notice as provided in this section, does not

remove such property within the specified period

shall be liable to the law enforcement agency for all

costs of removal, storage, and destruction of such

property, less any salvage value obtained by

disposal of the property. Upon final disposition of

the property, the law enforcement officer shall

notify the owner, if known, of the amount owed. In

the case of an abandoned vessel or motor vehicle,

any person who neglects or refuses to pay such

amount is not entitled to be issued a certificate of

registration for such vessel or motor vehicle, or any

other vessel or motor vehicle, until such costs have

been paid. The law enforcement officer shall supply

the Dep artment of Highway Safety and Motor

Vehicles with a list of persons whose vessel

registration privileges or whose motor vehicle

privileges have been revoked under this subsection.

Neither the department nor any other person

acting as agent thereof shall is sue a certificate of

registration to a person whose vessel or motor

vehicle registration privileges have been revoked,

as provided by this subsection, until such costs

have been paid.

21. The above listed statute s do not define some of the terms used ther ein,

and therefore one can refer to a dictionary to ascertain the intended meaning.

See L.B. v. State , 700 So. 2d 370, 372 (Fla. 1997) (stating that Ña court may

refer to a dictionary to ascertain the plain and ordinary meaning which the

legislature intend ed to ascribe to the term.Ò)

22. The online edition of Merriam - Webster Ôs Dictionary defines the

following terms:

ÑleftÒ Ï past tense of the word ÑleaveÒ ;

ÑwreckÒ Ï in pertinent part, Ñsomething cast up on the land by the seaÒ or

Ña hulk or ruins of a wr ecked ship.Ò

See https://meriam - webster.com (last searched April 21 , 2021).

23. Because the Commission is asserting that Mr. SweeneyÔs sailboat was

a Ñderelict vesselÒ within the meaning of section 823.11(1)(b)1., the

Commission bears the bur den of proof. Fla. DepÔt of Transp. v. J.W.C. Co. ,

396 So 2d 778, 788 (Fla. 1st DCA 1981) (stating that Ñ[i]n accordance with the

general rule, applicable in court proceedings, Óthe burden of proof, apart from

statute, is on the party asserting the affirma tive of an issue before an

administrative tribunal.ÔÒ) (quoting Balino v. DepÔt of HRS , 348 So. 2d 349

(Fla. 1st DCA 1977)).

24. Section 823.11(1)(b)1. does not provide a standard of proof in

proceedings such as the instant case. Section 120.57(1)(j), Flor ida Statutes ,

provides the following:

Findings of fact shall be based upon a

preponderance 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 of record and on

matters officially recognized.

25. The unrefuted and credible evidence presented at hearing

demonstrates that the higher, clear and convincing, standard of proof has

been met: the sailboat was and is a Ñderelict vesselÒ within the meaning of

section 823.11(1)(b)1 .

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 sailboat to have been a Ñderelict vesselÒ

w ithin the meaning of section 823.11(1)(b)1. and that the Commission is

authorized under section 376.15(3)(a) to relocate or remove it.

D ONE A ND E NTERED this 27th day of April , 2021 , in Tallahassee, Leon

County, Florida.

S

L YNNE A. Q UIMBY - P ENNOCK

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of April , 2021 .

C OPIES F URNISHED :

Brandy Elaine Elliott, E squire Robert Sweeney

Florida Fish & Wildlife Conservation 104 26th Street Northwest

C ommission Bradenton, Florida 34205

620 South Meridian Street

Tallahassee, Florida 32399 Emily Norton, General Counsel

Florida Fish & Wildlife Conservation

Eric Sutton, Executive Director Commission

Florida Fish & Wildlife Conservation Farris Bryant Building

Commission 620 South Meridian Street

Farris Bryant Building Tallahassee, Florida 32399 - 1600

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

N OT ICE 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 th is

case.