21-002377 Jeffrey David Wilenski vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Tuesday, December 7, 2021.

Summary: Respondent did not show, by either clear and convincing evidence or the preponderance of the evidence, that Petitioner's vessel was substantially dismantled, and, therefore, a derelict vessel.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J EFFREY D AVID W ILENSKI ,

Petitioner ,

vs. Case No. 21 - 2377

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent .

/

R ECOMMENDED O RDER

A hearing was held in this proceeding pursuant to sections 120.569 and

120.57(1 ), Florida Statutes (2021), 1 before Administrative Law Judge ("ALJ")

Cathy M. Sellers of the Division of Administrative Hearings ("DOAH") on

November 9, 2021, by Zoom c onference.

A PPEARANCES

For Petitioner: Caron Balkany, Esquire 2

Carol Balkany, P.A.

Post Office Box 420859

Summerland Key , Florida 3304 2

For Respondent: Brandy Elaine Elliott, Esquire

Florida Fish and Wil dlife

C onservation Commission

620 South Meridian Street

Tallahassee, Florida 32399

1 All references to Florida Statutes are to the 2021 codification.

2 Petitioner represented himself at the final hearing. Ms. Balk a ny entered a notice of

appearance as Petitioner's attorney after the final hearing.

S TATEMENT OF T HE I SSUE

The issue in this case is whether the vessel owned by Petitioner is a

"derelict vessel" within the meaning of section 823.1 1 (1)(b)1., Florida

Statutes (2021) . 3

P RELIMINARY S TATEMENT

Respondent, Florida Fish and Wildlife Conservation Commission, notified

Petitioner, Jeffrey David Wilenski, by letter dated June 23, 2021, that a

vessel he owns was unlawfully located on public p roperty and on State of

Florida waters. The letter further stated that law enforcement officers

employed by Respondent had determined that Petitioner's vessel was

derelict, as defined in section 823.11, and would be removed and disposed of,

pursuant to ch apter 705, Florida Statutes, if the vessel was not removed

within five days.

Petitioner timely filed an Election of Rights form and a Petition for

Administrative Proceeding , challenging Respondent's determination that the

vessel was derelict , and request ing an administrative hearing under

sections 120.569 and 120.57(1). Respondent referred the case to DOAH for

assignment of an ALJ to conduct the hearing.

3 The 2021 ver sion of section 823.11, which went into effect on July 1, 2021, applies to this

proceeding. However, if the 2020 version of the statute applied to this proceeding, both of

Respondent's witnesses testified t hat even before July 1, 2021, Respondent , in deter mining

whether a vessel is "substantially dismantled" for purposes of being a "derelict vessel , "

applied the same factors that are now codified in the 2021 version of section 823.11(1)(b)1.c.

Notably, to the extent that Respondent, before the effective dat e of the 2021 statutory

amendments , uniformly applied these f actors Ð which had not yet been codified in , and were

not readily apparent from the plain language of, section 823.11 Ð to determine parties'

substantial interests in derelict vessel cases, those fac tors would constitute statements of

general applicability that are unadopted rules on which the agency is not entitled to rely. See

§ 120.57(1)(e), Fla. Stat. ("An agency or an [ALJ] shall not base agency action that

determines the substantial interests of a party on an unadopted rule." ) See Grabba - Leaf,

LLC v. Dep't of Bus. and Prof'l Reg. , 257 So. 3d 1205 , 1211 (Fla. 1st DCA 2018)( regulatory

considerations not readily apparent from the language of the statute itself constitute an

unadopted rule).

The final hearing initially was set for September 9, 2021. On September 2,

2021, the parties filed a n Agreed/Joint Motion for Continuance, requesting

that the hearing be continued due to Petitioner having contracted COVID - 19.

The hearing was continued and rescheduled for November 9, 2021.

The hearing was held on November 9, 2021. Petitioner testified o n his own

behalf and presented the testimony of Judith Leon and Arnaud Girard.

Petitioner's Composite Exhibit 1, consisting of photographs of the vessel, was

admitted into evidence without objection, and was late - filed on November 15,

2021. 4 Respondent pre sented the testimony of Officer Dionis Delgado and

Officer Michael Alvarez. Respondent's Exhibits 1 through 5 were admitted

into evidence without objection.

Because no transcript of the final hearing was filed, the parties' proposed

recommended orders wer e due to be filed at DOAH no later than ten days

from the date of the final hearing. The parties timely filed their proposed

recommended orders, and both have been duly considered in preparing this

Recommended Order.

F INDINGS OF F ACT

The Parties

1. Peti tioner, Jeffrey David Wilenski, is the owner of the "Liquid

Courage," a 1980, 26 - foot, Grampian sailing vessel, FL 2158 NY, which was,

both at the time of the inspection giving rise to this proceeding and the time

of the final hearing, anchored just northw est of Wisteria Island, Florida,

Global Positioning System coordinates N 24 o 34.156, W081 o 48.73 4 , on the

waters of the s tate of Florida.

4 Peti tioner's witness, Arnaud Girard, also presented demonstrative evidence consisting of a

video. The undersigned viewed the video, which was not admitted into evidence, and the

undersigned has not based any findings of fact on the contents of the video.

2. Respondent is the state agency authorized to relocate, remove, store,

destroy, or dispose of a " derelict vessel, " as that term is defined in

section 823.11. § 376.15, Fla. Stat.

Evidence Adduced at Hearing

Respondent's Evidence

3. In June 2021, Dionis Delgado, a sworn law enforcement officer

employed by Respondent who has been trained in identifying and

investigating derelict vessels , went to the Florida Keys to identify and

investigate derelict vessels. A t that time, approximately 100 vessels were

being investigated for purposes of determining whether they were derelict.

4. In the course of the investigation, Delgado observed and boarded the

Liquid Courage. He took photographs of the vessel, which were admitted into

evidence.

5. Delgado saw , and the photographs he took confirm, that the vessel

lacked a mast or sail.

6. Delgado also observed , and a photograph he took confirms, that the pull

cord for the outboard motor was pulled completely out, so that it was not

flush with the cowling of the motor. He testified that this rendered the motor

nonfunctional. He attempted to start the motor, but it would not start with

the pull cord in the fully - protracted position .

7 . Delgado also testified that the vessel did not have a mast or sail, and

that the vessel lacked a tiller and rudder.

8 . Delgado o bserved , and the photographs depict, bird feces and

encrusting marine life on the vessel's hull , and marine life fouling the

propeller of the outboard motor.

9 . The hull of the Liquid Courage was intact Ð i.e., it was not missing,

compromised, incomplete, or inoperable Ð and the vessel's hull had not taken

on water.

10 . Based on his inspection , Delgado determined that the Liquid Courage

was a derelict vessel . S pecifically, Delgado determined that the Liquid

Courage was derelict because the vessel was " substantially dismantled , " in

that it lacked propulsion due to the lack of a mast o r sail and what he

characterized as a functional motor, and because he determined that the

vessel did not have a tiller or rudder , and, therefore, lacked steerage. 5

1 1 . Delgado memorialized his observations in an At - Risk or Derelict or

Abandoned Vessel Rep ort . In the report, he noted that the Liquid Courage

was afloat , had not damaged, and did not pose a threat to, submerged lands,

seagrass, coral, or mangroves. He also noted that t here was no evidence of

fuel or oil leaking from the vessel, and that the ve ssel did not constitute a

danger to the environment.

1 2 . Delgado prepared, and transmitted by certified mail, the June 23,

2021, letter to Petitioner , notifying him that the Liquid Courage had been

determined derelict and needed to be removed within five days.

13. Petitioner received the letter on July 17, 2021, and timely challenged

Respondent's determination that the Liquid Courage is a derelict vessel.

1 4 . On or about August 25, 2021, Officer Michael Alvarez , a sworn law

enforcement officer employed by Responde nt who has been trained in

identifying and investigating derelict vessels , contacted Petitioner to arrange

a meeting at the Liquid Courage in order to afford Petitioner the opportunity

to demonstrate that the vessel was not derelict, or to relocat e it so that it did

not constitute a navigational hazard .

1 5 . Petitioner testified , credibly, that he declined to speak to or meet with

Alvarez because he did not want to have further contact with Respondent

without having the advice of his counsel.

5 Ref er to paragraph 43 , below. A vessel is "substantially dismantled" if at least two of the

three vessel systems or components are missing, compromised, incomplete, inoperable, or

broken: the steering system; the propulsion system; or the exterior hull integr ity. §

823.11(1)(b)1.c., Fla. Stat.

1 6 . Shortly before the final hearing, on November 3, 2021, Alvarez

boarded the Liquid Courage and took photographs, which were admitted into

evidence. He testified, and the photographs confirm, that the vessel did not

have a mast or sail.

1 7 . Alvarez also te stified that the pull cord for the outboard motor was

flush against the cowling. He attempted to pull the cord to start the outboard

motor while it was in the upright position , but the cord would not move, so he

was unable to start the motor. He did not at tempt to start the outboard motor

while it was down in the starting position.

1 8 . Alvarez testified that because the vessel is a sailboat, it needs to have

either a functional motor or a mast with sail in order to have a means of

propulsion.

1 9 . He stat ed that he did not observe a tiller or rudder on the vessel.

Petitioner's Evidence

20. Petitioner presented the testimony of Arnaud Girard, a professional

marine salvor who identifies and relocates derelict vessels as part of his

business .

21. Girard vis ited the Liquid Courage on July 18, 2021 , shortly after

Delgado had inspected the vessel, and a little over a month before Alvarez

inspected the vessel.

22. Girard testified, and the photographic evidence confirms, that the

exterior hull of the Liquid Cou rage is intact. Girard credibly testified that the

vessel's hull had no cracks , was in good repair, and was not taking on water.

23. Girard testified that the pull cord for the outboard motor was pulled

all the way out of the cowling , and that when the co rd is in that position, the

motor will not start. He testified, credibly, that when the cord is completely

protracted from the cowling, the motor will start if the cord is manually

wrapped around the flywheel. Ultimately, Girard acknowledged that he did

no t know whether the outboard motor on the vessel was functional .

24. Girard testified , credibly, that the Liquid Courage did have a tiller .

This is confirmed by both photographs taken by Delgado during his June

2021 inspection , and by Petitioner when he vi sited the vessel on November 9,

2021 .

25. Girard also testified, credibly, that the vessel had a rudder.

26. He credibly testified that both the tiller and rudder were fully

functional, so that the boat had functional steerage.

27. Petitioner credibly te stified that the hull and propeller of the Liquid

Courage had been cleaned after Delgado's inspection. Photographs taken by

Alvarez confirm this.

28. Petitioner also testified that the vessel's tiller is tied off while it is

anchored so that the vessel wi ll not move. Thus, even if Delgado and Alvarez

had observed the tiller during their inspections and had attempted to move

it, it would not have moved.

29. Petitioner testified that approximately two weeks before the hearing,

he had the pull cord on the out board motor repaired. One of the photographs

Petitioner submitted as a late - filed exhibit shows the pull cord flush against

the motor's cowling.

30. Petitioner also testified, credibly, that he has not abandoned the

vessel. He acknowledged that it had bee n anchored in that spot for some

time, but that he had been sick with COVID - 19 for some time , so was unable

to go to the vessel to repair the pull cord.

31. Judith Leon , who recently had been aboard the vessel, testified to the

effect that the vessel was in good condition and was not taking on water.

Findings of Ultimate Fact

32. Based on the foregoing evidence, it is determined that the Liquid

Courage is not a derelict vessel.

33 . The undisputed evidence establishes that the Liquid Courage has an

ext ernal hull that is intact and is not taking on water. As such, the hull is not

missing, compromised, incomplete, inoperable, or broken within the meaning

of section 823.11(1)(b)1.c.(II).

34. Additionally, the competent, substantial, credible, and persuasi ve

evidence establishes that the Liquid Courage does, in fact, have both a tiller

and rudder, and that both are functional. This determination is based on the

credible, persuasive testimony of Petitioner and Girard. 6

35. Thus, the competent, substantial, c redible, and persuasive evidence

establishes that two of the three vessel systems identified in section

823.11(1)(b)1.c. Ð i.e., the exterior hull and the steerage system Ð are intact

and functional, and, therefore, not missing, compromised, incomplete, or

bro ken.

36. Therefore , it is determined, as a matter of ultimate fact, that the

Liquid Courage is not substantially dismantled , as defined in section

823.11(1)(b)1.c .

C ONCLUSIONS OF L AW

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

p roceeding, pursuant to sections 120.569 and 120.57(1).

38 . This is a de novo proceeding. § 120.57(1)( k), Fla. Stat. As such, it is

designed to formulate agency action, not review agency action taken earlier

and preliminarily. See Fla. Dep't of Transp. v. J .W.C. Co., Inc. , 396 So. 2d

778, 785 (Fla. 1st DCA 1981).

39 . Respondent bears the burden in this proceeding to prove, by clear and

convincing evidence , that the vessel at issue, the Liquid Courage , i s a derelict

vessel under section 823.11 . See § 120.57(1 )(j), Fla. Stat. (findings of fact shall

be based on a preponderance of the evidence, except in penal È proceedings ).

Id. (emphasis added). Here, because the statute subjects a vessel owner to

6 Additionally, the photographs taken by Delgado during the June 2021 inspection show the

tiller, albeit mostly hidden under several items on the deck of the vessel. This evidence

undercuts Delgado's and Alvarez's testim ony that the vessel lacked a tiller.

having his or her vessel declared derelict Ð and, thus, a public nuisance under

chapter 823, the consequence of which is to have the vessel removed and

disposed of pursuant to chapter 705, Florida Statutes Ð section 823.11 is a

penal statute . Thus, this is a penal proceeding . See Henderson Signs v. Fla.

Dep't of Transp. , 397 So. 2d 769, 773 (Fla. 1st DCA 1981)(statute subjecting

the owner of a sign that violated the statute to having its sign declared a

nuisance and ordered removed, obliterated, or abated was a penal statute). 7

40 . Section 376.15, Florida Statutes , makes i t unlawful for any person to

leave any derelict vessel, as defined in section 823.11, upon the waters of this

state.

41 . S ection 823.11(2)(a) similarly states that a person may not leave a

derelict vessel upon waters of this state.

42 . Sections 376.15(2) (a) and 823.11(2)(a) define "leave" as " allow [ ing ] a

vessel to remain [,] occupied or unoccupied [ , ] on the waters of this state for

more than 24 hours. "

43 . Section 823.11(1) (b) states:

" Derelict vessel " means a vessel, as defined in

s. 327.02, that is:

1. In a wrecked, junked, or substantially

dismantled condition upon any waters of this state.

a. A vessel is wrecked if it is sunken or sinking;

aground without the ability to extricate itself

absent mechanical assistance; or remaining after a

marine casu alty, including, but not limited to, a

boating accident, extreme weather, or a fire.

b. A vessel is junked if it has been substantially

stripped of vessel components, if vessel components

have substantially degraded or been destroyed, or if

the vessel has been discarded by the owner or

operator. Attaching an outboard motor to a vessel

7 Even if the applicable standard of proof were the less stringent "preponderance of the

evidence" standard, Respondent still would not have met that standard of proof in this

proceeding.

that is otherwise junked will not cause the vessel to

no longer be junked if such motor is not an effective

means of propulsion as required by

s. 327.4107(2)(e) and associate d rules.

c. A vessel is substantially dismantled if at least

two of the three following vessel systems or

components are missing, compromised, incomplete,

inoperable, or broken:

(I) The steering system;

(II) The propulsion system; or

(III) The exterior hull integrity.

Attaching an outboard motor to a vessel that is

otherwise substantially dismantled will not cause

the vessel to no longer be substantially dismantled

if such motor is not an effective means of

propulsion as required by s. 327.4107(2)(e) a nd

associated rules.

44 . Section 327.02(48), Florida Statutes, defines "waters of this state" as:

a ny 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

navigat ed 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 .

45 . As found above, the competent, substantial, credible, and persuasive

evidence establishes that the Liquid Courage is not substantially dismantled.

46 . Therefore , it is concluded that the Liquid Courage is not a derelict

vessel , as defined in section 823.11 (1)(b) . 8

8 Respondent did not base it s preliminary agency action on a determination that the Liquid

Courage was wrecked or junked, as those terms are defined in section 823.11(1)(b), and it did

not present any evidence to that effect. Its preliminary agency action was based solely on a

determ ination that the vessel was substantially dismantled.

47 . Because the Liquid Courage is not a derelict vessel, the requirement

set forth in se ctions 823.11 and 376.15 that the vessel be removed from

waters of this state or be subject to being removed and disposed of , does not

apply to the vessel. 9

R ECOMMENDATION

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

R ECOMMENDED that Respondent, Florida Fish and Wildlife Conservation

Commission enter a final order finding that the vessel at issue in this

proceeding is not a derelict vessel under section 823.11 and that , as such,

Respondent is not authorized to relocate, remove, st ore, or dispose of the

vessel, as provided in sections 823.11 and 376.15.

D ONE A ND E NTERED this 7 th day of December , 2021 , in Tallahassee, Leon

County, Florida.

S

C ATHY M. S ELLERS

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7 th day of December , 2021 .

9 The evidence also establishes that the vessel is not abandoned property under section

705.101(3) , Florida Statutes . The vessel has an identifiable owner Ð Petitioner Ð and, as

discussed above, the evidence shows that it is not a derelict vessel as defined in section

823.11.

C OPIES F URNISHED :

Jeffrey David Wilenski Brandy Elaine Elliott, Esquire

Unit 4463 Flori da Fish & Wildlife

400 Whitehead Street Conservation Commission

Key West, Florida 33040 620 South Meridian Street

Tallahassee, Florida 32399

Carol Balkany, Esquire

Post Office Box 420859 Eric Sutton, Exec utive Director

Summerland Key, Florida 33042 Florida Fish & Wildlife

Conservation Commission

Emily Norton, Gen eral Co unsel Farris Bryant Building

Florida Fish & Wildlife 620 South Meridian Street

Conservation Commission Tallahassee, Florida 3 2399 - 1600

Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1050

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 F inal Order in this

case.