21-002761 James Zukowski vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Wednesday, December 8, 2021.

Summary: Commission proved that Petitioner's sailboat is a "derelict vessel" and that Petitioner should bear the cost of its removal or relocation.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J AMES Z UKOWSKI ,

Petitioner ,

vs. Case No. 21 - 2761

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted in this case on

November 8, 2021, via Zoom teleconference, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge (ÑALJÒ) of the Division of

Administrative Hearings ( Ñ DO AHÒ).

A PPEARANCES

For Petitioner: James Zukowski, pro se

14449 Manchester Pike Road

Christiana, Tennessee 37037

For Respondent: Brandy E laine Elliott, Esquire

Florida Fish and Wildlife Conservation

Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

S TATEMENT OF T HE I SSUE

The issue is whether the Florida Fish and Wildlife Conservation

Commission (ÑRespondentÒ or Ñthe CommissionÒ) correctly determined that a

vessel owned by James Zukowski (ÑPetitionerÒ or ÑMr. ZukowskiÒ) was a

Ñderelict vessel , Ò or an Ñabandoned vessel , Ò within the meaning of section

823.11, Florida Statutes, 1 and, therefore, subject to the provisions of sections

823.11, 705.101(3), 376.15(3)(a), and 705.103, Florida Statutes.

P RELIMINARY S TAT EMENT

On June 23, 2021, the Commission mailed to Mr. Zukowski notice of his

derelict vessel, a Ñwhite, 21 - foot, Catalina Yacht sailing vessel with Florida

Registration Numbers FL9545EA displayed HIN of CTYH0631M82B.Ò

Mr. Zukowski acknowledged receipt of th e documents related to a derelict

vessel determination on July 7, 2021.

Through an Election of Rights form and a Petition for Administrative

Proceeding, each dated August 27, 2021, Mr. Zukowski requested an

administrative hearing. In his Petition, Mr. Zuk owski stated that the vessel

was derelict at the time of notification but that he had since effected repairs

that rendered the vessel seaworthy. Mr. Zukowski requested that Ñall actions

be droppedÒ based on his assertion that the vessel was no longer derel ict.

On September 13, 2021, the Commission referred the case to DOAH for

the assignment of an ALJ and the conduct of formal hearings. The case was

assigned to ALJ Suzanne Van Wyk.

The final hearing was scheduled for October 26, 2021. By O rder dated

Oct ober 22, 2021, the hearing was canceled because Petitioner, who is in

Tennessee, was having difficulty coordinating between his Florida contractor

and the Commission.

The hearing was rescheduled for November 8, 2021. Due to ALJ Van

WykÔs illness, the cas e was reassigned to the undersigned, who convened and

completed the hearing on the scheduled date.

1 Unless otherwise noted, all references to the Florida Statutes are to the 2021 edition.

At the hearing, Mr. Zukowski testified on his own behalf. Mr. Zukowski

offered no exhibits into evidence.

The Commission presented the testimony of Office r Michael Alvarez. The

CommissionÔs Exhibits 1 through 4 were admitted into evidence.

No t ranscript of the final hearing was filed with DOAH. Neither party

filed a p roposed r ecommended o rder.

F INDINGS OF F ACT

Based on the evidence adduced at hearing, an d the record as a whole, the

following Findings of Fact are made:

1. Mr. Zukowski is the last registered owner of a 21 - foot Catalina Yacht

sailboat, registration number FL9545EA (ÑsailboatÒ), found in the public

waters of Monroe County, Florida.

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

derelict vessels 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 Ñ[i]n a wrecked, junked, or

substantially dismantled condition upon any waters of this state.Ò

§ 823.11(1)(b), Fla. Stat.

3. Officer Michael Alvarez is a sworn law enforcement officer who works

for the Commission as a derelict vessel patrol officer for the Middle Keys.

4. On June 23, 2021, Officer Alvarez discovered the vessel in Cow Key

Channel, near Key West. In his notice to the owner, Officer Alvarez described

the state of the vessel:

The above stated vessel is wrecked and

substantially dismantled upon public waters of the

state and state submerged lands. This ves sel meets

the definition of substantially dismantled since the

mast is disassembled and not operational, there are

no sails nor rigging. With that being said, the

outboard present would be the only means of

propulsion. This outboard is not operational due to

neglect and the propeller being wrapped in anchor

line, rendering it useless. This vessel meets the

definition of wrecked because it is hard aground

and cannot extract itself without mechanical

assistance.

5. At the hearing, Officer Alvarez testified t hat he found the vessel resting

on the bay bottom, filled with water. The mast was lying on the deck. A

mounted trolling motor was the only means of propulsion , but it was

inoperable due to the lack of a fuel line. The motorÔs propeller was fouled in

ancho r line.

6. On June 23, 2021, Officer Alvarez took several photographs of the

vessel that confirmed his written and oral descriptions.

7. By searching the title on the vessel, Officer Alvarez ascertained that

Mr. Zukowski was the registered owner. On June 2 3, 2021, Officer Alvarez

sent a Notification of Rights packet and a Derelict Vessel Notification Letter

to Mr. Zukowski.

8. On July 7, 2021, Mr. Zukowski acknowledged in writing that he

received the materials from Officer Alvarez. On the same date, Mr. Zuk owski

telephoned Officer Alvarez. Mr. Zukowski stated that he had sold the vessel a

year ago but had no bill of sale or other proof. He acknowledged that he was

responsible for the vessel. Mr. Zukowski told Officer Alvarez that he would

request an administ rative hearing but that he expected to have the vessel

removed before any hearing date.

9. Officer Alvarez and Mr. Zukowski have remained in contact as the

latter has worked to remove the vessel. Mr. Zukowski has contracted with a

local man, Luis Trevino, to take control and render the vessel operable.

Officer Alvarez noted that by mid - September, the water had been pumped

out of the vessel and that it was floating, meaning that it was no longer

considered ÑwreckedÒ under the statutory definition.

10. Howeve r, Officer Alvarez testified that the vessel remained ÑderelictÒ

because it still lacked any means of propulsion or steering. Despite

Mr. ZukowskiÔs statements that Mr. Trevino had attached an outboard motor

to the vessel, Officer Alvarez discovered that t he only motor mounted on the

boat was the trolling motor he had originally seen on June 23, 2021.

11. On October 6, 2021, Officer Alvarez returned to the vessel and found it

in essentially the same condition. It was floating and anchored in a secure

fashi on, but still had no means of propulsion or steering.

12. At the hearing, Mr. Zukowski reiterated his intentions to make the

vessel operable and remove it from its current location. He conceded Officer

AlvarezÔs point that Mr. Trevino appears to lack exper ience in the kind of

work he is attempting to perform. Mr. Zukowski stated that he nonetheless

had confidence that the vessel would be removed before the deadline for this

Recommended Order and that final agency action by the Commission would

be unnecessar y.

13. For its part, the Commission stated at the hearing that it would be

happy to drop the case if Mr. Zukowski could indeed remove the vessel before

the issuance of a Recommended Order. As of the writing of this

Recommended Order, the undersigned has re ceived no notice from the

Commission or Mr. Zukowski that the situation has changed since the

hearing date.

C ONCLUSIONS OF L AW

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

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

15. Secti on 376.15 provides , in pertinent part:

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

(a) ÑCommissionÒ means the Fish and Wildlife

Conservation Commission.

* * *

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

corporation to leave any derelict vessel as define d

in s. 823.11 upon the waters of this state. For

purposes of this paragraph, the term ÑleaveÒ means

to allow a vessel to remain occupied or unoccupied

on the waters of this state for more than 24 hours.

* * *

(3)(a) The commission, an officer of the com mission,

or a law enforcement agency or officer specified in

s. 327.70 may relocate, remove, store, destroy, or

dispose of or cause to be relocated, removed, stored,

destroyed, or disposed of a derelict vessel as defined

in s. 823.11 from waters of this st ate as defined in

s. 327.02. All costs, including costs owed to a third

party, incurred by the commission or other law

enforcement agency in the relocation, removal,

storage, destruction, or disposal of any abandoned

or derelict vessel are recoverable agai nst the owner

of the vessel or the party determined to be legally

responsible for the vessel being upon the waters of

this state in a derelict condition. The Department

of Legal Affairs shall represent the commission in

actions to recover such costs.

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

(44) 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

incl udes 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 terr itorial

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.

17 . ÑAbandoned propertyÒ includes derelict vessels as defined in section

823.11. § 705.101(3), Fla. Stat.

18. Section 823.11(1)(b) defines Ñderelict vesselÒ as follows:

(b) ÑDerelict vesselÒ 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 casualty, 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

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 associated 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) and

associated ru les.

2. At a port in this state without the consent of the

agency having jurisdiction thereof.

3. Docked, grounded, or beached upon the property

of another without the consent of the owner of the

property.

19. Section 705.103(4) provides, in pertinent p art:

(4) The owner of any abandoned or lost property, or

in the case of a derelict vessel, the owner or other

party determined to be legally responsible for the

vessel being upon the waters of this state in a

derelict condition, who, after notice as provid ed in

this section, does not remove such property within

the specified period shall be liable to the law

enforcement agency, other governmental entity, or

the agencyÔs or entityÔs designee 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 or representative of the law

enforcement agency or other governmental entity

shall notify the owner, if known, of the amount

owedÈ.

20. Because the Commission is asserting that Mr. ZukowskiÔs sailboat was

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

bears the burden 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 affirmative of an issue before an administrative

tribunal.ÔÒ) (quoting Balino v. DepÔt of HRS , 348 So. 2d 349 (Fla. 1st DCA

1977)).

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

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

provides the following:

Findings of fact shall be based upon a

prepond erance 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.

22. There is some question whether the standard of proof in a case of this

nature should be a simple preponderance of the evidence or the more

stringent standard of Ñclear and convincingÒ evidence. See Sundwall v. Fla.

Fish & Wildlife Conserv. Comm. , Case No. 19 - 4039 at ¶¶ 30 - 31 ( Fla. DOAH

Jun . 1, 2020). In the instant case, as in Sundwall , Ñ[a]ny uncertainty about

the appropriate standard of proof is a moot point È because the Commission

proved by clear and convincing evidenceÒ that Mr. ZukowskiÔs sailboat was ,

and is , a Ñderelict vessel , Ò wit hin the meaning of section 823.11(1)(b).

Mr. Zukowski acknowledged the boatÔs condition and accepted his

responsibility for it.

R ECOMMENDATION

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

R ECOMMENDED that the Florida Fish and W ildlife Conservation Commission

issue a f inal o rder deeming the subject sailboat to have been a Ñderelict

vesselÒ within the meaning of section 823.11(1)(b) , and that the Commission

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

D ONE A ND E NTERED this 8th day of December , 2021 , in Tallahassee, Leon

County, Florida.

S

L AWRENCE P. S TEVENSON

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

D ivision of Administrative Hearings

this 8th day of December , 2021 .

C OPIES F URNISHED :

Brandy Elaine Elliott, Esquire James Zukowski

Florida Fish & Wildlife Conservation 14449 Manchester Pike Road

Commission Christiana, Tennessee 37037

Farris Bryant Building

620 South Meridian Street Emily Norton, General Cou nsel

Tallahassee, Florida 32399 - 1600 Florida Fish & Wildlife Conservation

Commission

Eric Sutton, Executive Director Farris Bryant Building

Florida Fish & Wildlife Conservation 620 South Meridian Street

Commission Tallahassee, Florida 32399 - 1050

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

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.