08/05/1998 (2)
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OFFICER
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APPEALS
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HEARING OFFICER
August 6,1998 '
..", Appeal,Of Planning and ,Zoning Board's decision by Aqua Wave Rentals, Inc.' regarding:
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William M: Shephard, 'rRE i Shephard Family Trust'/ Lagoon Resort Motel
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,(Clearwater Paras ail, 1nc;) ,
'619 Gulfview Blvd.
"CU 9'8-20
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A cO''-!rt,re'porter attended this meeting. The Fina', Order (17 pages), transcript 1203 pages)
& Word Index (54 pages) is on paper (until microfilmed) in the Hearing Officer minutes
notebook. '
Hearing Officer upheld the P&Z's,decisionwhich granted the conditional use
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, 08/06/98
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CLEARWATER PARASAIL, INC.,
and C~TY OF CLEARWATER,
Respondents.
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R.ECEY.'TE'P
Case No. 98-2685
AQUA WAVE RENTAL, INC.,'
Appellant,
VB.
SEP ,2 4 1998
CITY CL[:RI< DE.PT.
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FINAL ORDER
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On August, 5, 1998, a fin~l hearing was held in this case in
Clearwater, Florida, before J. Lawrence Johnston, Administrative
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Law Judge, Division of Administrative Hearings.
APPEARANCES
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For Appellant:
Allen,S. Zimmet, Esquire
Joseph A. Corsmeier, Esquire
Tew, Zinober, Barnes, Zimmet and Unice
2655 MeCo~iek Drive
Clearwater, Florida 33759
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For Respondent
Clearwater parasail: Clay C. Schuett, Esquire
Johnson, Blakely, Pope, Bokor,
Ruppel and Burns, P.A.
911 Chestnut Street
Post Office Box 1368
Clearwater, Florida 33757
, 'For Respondent
, City of Clearwater:, Leslie K. Dougall-Sides
Assistant City Attorney
City Attorney's Office
City of Clearwater ,
Post Office Box'4748
Clea~water, Florida 33758
STATEMENT OF THE ISSUE
The issue in this appeal ,is whether the decision of the City
,C..;;) Planning and Zoning Board granting Clearwater parasail, Ine., a
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PRELIMINARY STATEMENT
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conditional use permit to rent four personal water craft at its
business at Clearwater Pass is sustained by the evidence.
Clearwater parasail, Inc., filed an application on April 14,
1998, for a conditional 'use permit to rent four personal water
craft and one flats fishing boat at its business at Clearwater
Pass~ The application was placed on the agenda of the City
Planning and Zoning Board meeting on May 19, 1998.
> , At the meeting, the Board considered a written request for
a
continuance filed by the Cityls Harbormaster because neither he
nor his staff could be at the meeting as scheduled. The Board
staff recommended granting the request for a continuance. The
applicant opposed the continuance, and the Board denied the
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request for a continuance. After the hearing before the Board,
the Board approved the conditional use application.
On June 1, 1998, the Appellant, Aqua Wave Rental, Inc.,
filed a Notice of Appeal. Under Section 36.065 of the City of
Clearwater Land Development Code (the Code), the appeal was
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forwarded to the Division of Administrative Hearings on June 11,
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1998, along with a copy of the record of the proceedings below.
After the filing of responses to the Initial Order in the case, a
Notice of Hearing was issued on June 19, scheduling final hearing
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on August 5, 1998.
At final hearing, the record of the proceedings below was
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received into evidence, including the tapes, minutes, and
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exhibits from the Board hearing. The Appellant called four
witnesses, including the City Harbormaster, and had Appellant IS
Exhibits 1, 3, 4, and 8 admitted into evidence. The City called
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no witnesses but had Government'Exhibits 1 through 3 admitted in
evidence~ The Applicant called two witnesses and was supposed to
.have submitted a videotape of the Board proceeding post-hearing,
but no videotape has been submitted.
Additionally, the Administrative Law Judge took
administrative notice/official recognition of a number of
sections of the City'S Land Development Code (the Code) .
Two members of the public spoke in opposition to the
applicatio~; one proffered photographs as evidence. However,
Code Section 36.065(5) does not appear to contemplate
presentations by members of the public during this appeal.
After the presentation of the evidence, the City ordered the
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preparation of a transcript of the final hearing, and the parties
were given 15 days to file'proposed final orders. All parties
timely filed proposed final orders, but the transcript of the
final hearing has not been filed.
FINDINGS OF FACT
1. The Appellant, Aqua Wave Rental, Inc., is a lessee
operating a personal water craft rental business on the Holiday
Inn Sunspree property in the City of Clearwater, Clearwater
Beach, just west of and immediately adjacent to the new,
Clearwater Pass Bridge.
2. Personal water craft, also known as jet skis and wave
runners, are designed for use by a single operator or by an
operator and one passenger; they are propelled by water jets.
Although small, personal water craft are capable of achieving
high speeds. Currently, they can go 50 to 60 miles per houri new
models are coming out that will be able to go 95 miles per hour.
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3.' Eighty percent of the 156 citations and 74 warnings to
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Operators of these craft prefer to operate at high speeds, and
many operators jump the wakes of other boats or engage in other,
unsafe maneuvers.
operators of water craft in Pinellas County between April 1 and
December 31, 1997, were given to operators of personal water
craft. ,Although making up only 9.3% of all water craft
registered in the State of Florida in 1997, personal ,water craft
were involved in 36.1% of all reported water craft accidents. Of
754 injuries from water craft accidents reported in 1997, 367
involved personal water craft.
4. The Applicant/Respondent, Clearwater Parasail, Inc., is
a leaseholder on the real property located at 619 Gulfview
Boulevard in the City of Clearwater, Clearwater Beach. The owner
of the property is William M. Shephard, Trustee for Shephard
Family Trust. The property is zoned CR28 and is improved with a
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motel called Shephard's Resort and associated uses. It is
apprqximately 300 yards west of the Appellant's business.
5. Clearwater Pass separates Clearwater Beach from Sand Key
and connects the Intracoastal Waterway with the Gulf of Mexico.
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Besides Shephard's and the Holiday Inn Sunspree, there also is an
Bcono Lodge and two condominium complexes between Clearwater
parasail and Aqua Wave Rental along the south shore of the Pass.
Generally, the area has mixed land use comprised of hotel/motel,
recreational uses such as boat rental businesses,
bars/nightclub~, and multifamily residential condominiums.
6. On April 14, 1998, Clearwater parasail filed an
application for a conditional use permit to rent four personal
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water craft and one flats fishing boat at its business at
Clearwater Pass. When Robert Pothoff, the owner/operator of Aqua
Wave Rental, Inc., became aware of the application, he approached
the City'S Harbormaster, William Held, because it had been
Pothoff's understanding from prior dealings with Held that no
additional personal water craft rental operations would be
allowed in Clearwater Pass due to boat congestion and safety
consi'derations.
7. On his own volition, the Harborrnaster convened a m~eting
of the City of Clearwater Marine Advisory Board (the MAB) to
consider the application. Although the Harbormaster's job
description does not include advising planning staff or boards
regarding land use issues, Held prepared a memorandum outlining
the reasons he, as Harbormaster, was recommending denial. A copy
of the minutes of the MAE meeting at which it voted to recommend
denial was attached to the Harbormasterrs memorandum.
8. The Clearwater parasail application was placed on the
agenda of the Planning and Zoning Board's meeting scheduled for
May 19, 1998. When the Harbormaster learned of the hearing date,
he requested a continuance because neither he nor any of his
staff could be available for the hearing. The Staff Report to
the Board recommended a continuance in order that further
information could be developed.
9. Before the May 19, 1998, hearing, Pothoff asked the
Harbormaster as to the status of the application. The
Harbormaster informed Pothoff that he was requesting a
,,", continuance. Thi,nking that there would be a' continuance, Pothoff
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decided not to attend the hearing on May 19, 1998.
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~o. At the hearing on May 19, 199B, the Applicant opposed
the requested continuance, and it was den~ed by the Board.
11. During the Board hearing, the Applicant's attorney
argued that safety considerations were not relevant to the
Board's consideration of the application. The Assistant City
Attorney advising the Board stated that, while safety was not a
specific criterion for approval of a condj.tional use, it could be
a relevant consideration under general criteria concerning the
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general welfare of the community.
12. One Board member testified at the final hearing and
confirmed that he considered boating congestion and safety
issues. While the mental thought processes of each Board member
cannot be ascertained from the record, the Harbormaster's
memorandum, with MAE minutes attached, was in evidence before the
Board, and it seems apparent that the Boar.d considered boating
congestion and safety issues.
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13. By a unanimous vote of 7-0, the Board approved the
conditional use application, subject to the following conditions:
(1) Hours of jet ski operation are limited
to 9;00 a.m. to dusk, seven days per week;
the flats boat may be out after dusk and
before 9:00 a.m.:
(2) Jet skiers will be required to honor the
No Wake Zone and will idle through the No
Wake Zone to access either the beach or the
Gulf of Mexico;
(3) There will be one boat or one jet ski
available to act as a chase boat, respond to
emergencies, or offer assistance to troubled
jet skiers;
(4) With regard to experience requirements,
the business operator will comply with all
current state laws that regulate this
industry;
(S) Buoys shall be placed to identify the
jet ski starting area and designate the route
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jet skis may travel between open water and
the beach; and
(6) The operation is limit'ed to four (4) jet
skis and one (1) flats boat.
14. The appeal from the Boardls decision does not contest
the approval of the flats fishing boat, but only appeals the
approval as relates to the four personal water craft.
15. Aside from the issue of boating congestion and safety
in Clearwater Pass, the evidence clearly sustain~ the Board's
decision 'that personal water craft rental is a compatible use in
the surrounding area and that the proposed conditional use will
not impose an excessive burden or have a substantial negative
impact 'on surrounding or adjacent uses or on community facilities
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or services.
16. A marked channel traverses Clearwater Pass, which has a
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strong current when the tide is flowing. Several years ago, the
channel was moved towards the middle of the Pass, away from the
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'south shore of the Pass, to relieve congestion along the south
shore. There also is alina-wake zonell in the channel. At
Clearwater parasail1s request, the Harbormaster expanded the lInci
wake zone" 350 yards to the west so that the "no-wake zone" now
extends past Clearwater Parasail's business.
17. Boating congestion and safety concerns in the Pass are
greatest on weekends in the area of Shephard's Resort. The
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complex includes Shephard's Backyard Tiki Bar and Nightclub,
which extends up to the shore. Many Shephard'~ patrons and other
boaters anchor in the Pass off the shore in front of Shephard's
and wade in. The consumption of alcoholic beverages figures
;~, prominently in the activities that take place in and around
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Shephard's. Meanwhile, residents and patrons of other
establishments along the Pass in the vicinity also use the Pass
for boating, wading and swimming.
18. The ,Applicant's business location is to the west of
Shephard's Backyard Tiki Bar and Nightclub on the other side of a
rock jetty. Under its plan of operation, the Applicant will use
a chase boat to guide its renters into the Clearwater Pass
through water marked with buoys for, that purpose; once 'in the
Pass, renters will be guided to the west into the Gulf. The
chase boat will remain in the water to offer assistance and
guidance as necessary. As planned, the Applicant's operation
will not add significantly to the congestion directly in front of
Shephard's.
19. The City'S Harbormaster believes that personal water
craft are dangerous by nature and that Clearwater Pass is too
congested with water crafts of all types on weekends (especially
in front 'bf Shephard's). As a result, from a boating safety
,standpoint, he would prefer no personal water craft rental
businesses in or near Clearwater Pass at all, regardless of
safety precautions, and he recommended denial of any conditional
use permit for additional personal water craft rental businesses
in the Pass.
20. The Harbormaster did not direct his comments
specifically to the Clearwater P~rasail proposal. He did,
however, state that Clearwater parasail has not been a safety
problem, and he' had no reason to believe that the Applicant would
not operate his personal water craft business in the same safe
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manner that he operates his parasail business.
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2~. Pinellas County Deputy Sheriff David Littlejohn~ who
patrols the Clearwater Pass area for the County, testified to the
nature of boating activity on Clearwater Pass and about the
congestion of water craft in front of Shephard's on weekends.
However, Deputy Littlejohn stated that he could not say whether
the Applicant's four personal water craft would have an adverse
impact on Clearwater Pass during the weekend. He conceded that
most of the congestion was directly in front of Shephard's, not
to the west on the other side of the rock jetty, where the
Applicant will operate its personal water craft rental business.
22. Florida Marine Patrol Officer Terry L. Noll had not
been in Clearwater Pass for approximately the past three years.
He also believes that per.sonal water craft are dangerous.
However, his primary concern is that the, operators of personal
water craft, whether owners or renters, are safe and well-
trained.
23. Robert Pothoff's testimony confirmed that Clearwater
parasail will operate 'its personal water craft rental business
similar to the manner in which he operates Aqua Wave Rental.
Like Clearwater parasail, Aqua Wave Rental operates from a
bar/hotel area (although it is not as busy as Shephard's.) For
the safety of his renters an~,other boaters using the Pass,
Pothoff prohibits his renters from operating in front of
Shephard's. Since Aqua Wave Rental is located to the east of
Shephard's, Pothoff tries to direct his renters to the east under
the Clearwater Pass Bridge into the Intracoastal Waterway.
Apparently not fully cognizant of the Applicant's plan of
operation, it was Pothoff's incorrect assumption that the
9
Applicant's renters would not be able to similarly avoid
operating in front of Shephard's.
24. The Applicant will have to comply with all state and
local laws and regulations governing the rental and operation of
personal water craft in Clearwater Pass. These now include
prohibitions against wake jumping and operation by persons under
.the age of 14. While not currently the law, it is anticipated
that renters of personal water craft soon will have to be tra1n~d
in the safe operation of these craft and certified as competent
before renting. Regardless of the state of the law, the
Applicant plans to offer a boating safety course to its renters.
The owner/operator of Clearwater parasail, Cliff Conaster, is the
, holder of a 100-ton captain's license and is qualified to offer
this instruction.
25. It is found that 'the evidence before the Board and
presented at final hearing sustains the Board's decision that
personal water craft rental as proposed at this location is a
compatible use in the area surrounding the propqsed location and
will not impose an excessive burden or have a substantial
negative impact on surrounding or adjacent uses or on cormnunity
facilities or services.
26. It also is found that the evidence before the Board and
presented at final hearing sustains the Board's decision that
personal water craft rental as proposed at this location is
consistent with the community welfare and will not detract from
the publicis convenience at this location.
27. In 1990, the Planning and Zoning Board denied a
previous application for conditional use approval for a personal
10
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water craft rental business at the same location. The applicant
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",< in that case appealed, and the Final' Order in Shepard et al. v.
City of Clearwater, DOAR Case No. 90 -2152:, sustained the decision
of the Board. There, however, the applicant had no experience in
running a marine rental business. In addition, the applicant
wanted to rent up to ten personal water craft, plus a catamaran
sailboat. Also, the applicant failed to establish that safe
ingress and egress would be accomplished or that""the operation
would be sufficiently staffed to ensure safe operations. Those
factors sharply contrast with the facts of this case.
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CONCLUSIONS OF LAW
Appellant's Standinq
28. Section 36.065(2) of the City of Clearwater Land
Development Code (the Code) authorizes appeals from "any person
who will suffer an adverse effect to an interest protected or
furthered by the land development code. The interest may be
shared in common with other members of the city at large but
shall exceed in degree the general interest shared by all
persons. II Although Section 35.04 of the Code sets forth that it
is a purpose of the Code to IIconse'rve and 'stabilize the value of
property II and IIrninimize the adverse impact of development on
adjoining or nearby properties, 11 it is also a purpose to
l1encourage the most appropriate use of land, 11 to "protect,
provide for and promote the public safety, health, convenience,
comfort, prosperity and general welfare. 11
29. It is concluded that the Appellant has standing. The
Appellant shares with others a conUllon interest in lithe public
safety, health, convenience, comfort, prosperity and general
11
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welfare. II The Appellant's interest exceeds in degree the general
interest shared by all persons in that ,the Appellant is concerned
in particular for the safety of his rental customers and the
impact the Applicant's business will have on the Appellant's
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business.
Appellant's Burden of Proof
30. Under Code Section 36.065(6):
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(a) The hearing officer shall ,review the
record and testimony presented at the hearing
before the board and the hearing officer
relative to the guidelines for consideration
of . . . variances as contained in . . .
chapter 45. . . . Although additional
evidence may be brought before the hearing
officer, the hearing shall not be deemed a
hearing, de novo, and the record before the
board shall be incorporated into the record
before the hearing officer, supplemented by
such additional evidence as may be brought
before the hearing office~.
(b) The hearing officer shall be guided by
the city comprehensive plan, relevant
portions of this Code and established case
law.
,(c) The burden shall be upon the appellant
to show that the decision of the board cannot
be sustained by the evidence before the board
and before the hearing officer, or that the
decision of the board departs from the
,essential requirement~ of law.
All procedural 'r~quirements relating to the 'application, hearing
process, and appeal process were met in this case. The Appellant
argues that lithe decision of the Board cannot be sustained by the
evidence before the board and before the hearing officer. II
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31. The resort commercial 28 (CR28) zoning district is
IIcreated to provide a high density resort/residential district
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with complementary tourist-associated retail and service uses. II
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Code Section 40.401. Permitted uses include hotels/motels,
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convention centers, retail sales, restaurants, indoor commercial
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recreation/entertainment when a principal use or within a retail
complex, and multifamily dwellings. Code Section 40.403.
Outdoor commercial recreation/entertainment is allowed as a
conditional use within this zoning district. Code Section
40.404.
32. Several sections of the Code of Ordinances govern
consideration of conditional use applications by the Board.
Section 41.033 requires that in order for a conditional use to be
approved, several criteria must be met:
(1) The use complies with the land use plan.
(2) The 'use complies with all other
applicable provisions of this development
code'~
(3) The use complies with the applicable
conditional use standards for the proposed
use contained in division 3 of this article.
(4) The use shall be consistent with the
community welfare and not detract from the
public's convenience at the specific
location.
(5) The use shall not unduly decrease the
value of neighboring property. '
(6) The use shall be compatible with the
surrounding area and not impose an excessive
burden or have a substantial negative impact
on surrounding or adjacent uses or on
community facilities or services.
In addition, Section 41.052 recites the following standards, all
of which shall be met:
(l) The use shall comply with the land use
plan and all applicable terms contained in
this development code, the building code, and
this Code of Ordinances.
(2) Acceptable ingress to and egress from
the site shall be provided in a manner and
location which ensure optimum vehicle
maneuverability and vehicular and pedestrian
safety. The number of ingress and egress
drives shall be the minimum necessary to
provide reasonable access to the site.
(3) Noise generated from the use shall not
unreasonably diminish the use, enjoyment or
value of surrounding properties.
13
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(4) The direction and glare of lights from
both motor vehicles and illuminating fixtures
on the site shall not adversely affect the
-use, enjoyment or value of surrounding
properties.
(5) Sufficient landscapi.ng and screening
shall be provided to diminish noise, reduce
glare and buffer high activity areas and
objectionable views, including but not '
limited to trash disposal facilities, such
that the use will not adversely affect the
use, enjoyment or value of surrounding
properties.
(6) Sufficient area shall be afforded for
parking in accord with section 42.34.
(7) The use shall be consistent with the
community character of the properties
surrounding the use. The criteria in this
'subsection shall be utilized to determine
whether the use satisfies this standard:
(a) Whether the use is compatible with the
surrounding natural environment;
(b) Whether the use will have a substantial
detrimental effect on the property values of
the pro~erties surrounding the conditional
, use;
(c) Whether the use will be compatible with
the surrounding uses as measured by building
setbacks, open space, hours of operation,
building and site appearance, architectural
design and other factors which may be
determined appropriate to assess the
compatibility of uses;
,(d) whether the traffic generated by the use
is of a type or volume similar to traffic
generated by the surrounding uses.
Finally, ,the supplementary standards by category of use contained
in Section 41.053 set forth the following criteria:
(21) Outdoor commercial
recreation/entertainment may be allowed
within the beach commercial, resort
commercial 24 and 28 . . . districts, subject
to all of the following:
(a) All facilities and activities shall be
self-contained on the premises, unless
otherwise approved by the' planning and zoning
board.
(b) The use shall comply with all of the
general standards contained in section
41.052.
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The Appellant argues that the Applicant, Clearwater parasail,
Inc., failed to m~et two of the criteria--namely, the
requirements of Section 41.033(4) and (6).
Evidence Sustains Board Decision
33. As to Code Section 41.033(4), the evidence sustains the
Board's decisions that the Applicant's proposed use is
"consistent with the community welfare" and will not "detract
from the publicts convenience at the specific location."
(Emphasis added.) The evidence was that the Applicant's business
is separated from the heaviest activity at Shephard's Backyard
Tiki Bar and Nightclub by a rock jetty. Under the conditions
imposed by the Board, the Applicant will guide its renters into
the Clearwater Pass through water marked by buoys for that
purpose. Once in the Pass, renters will be guided to the west
into the Gulf. In that manner, the Applicant's renters will not
add significantly to the congestion in front of Shephard's.
34. As to Code Section 41.033(6}, the evidence sustains the
Boardls decision that the Applicantls proposed use is rtcompatible
with the surrol:nding arealt and will not "impose an excessive
burden or'have a substantial negative impact on surrounding or
adjacent uses or on conununity facilities or services."
35. The Planning and Zoning Board was not bound by the
recommendations of the Harbormaster or the Marine Advisory Board
\
(the MAE.) The Harbormaster1s job description does not include
advising planning staff or boards regarding land use issues.
Code Section 2.196-2.199 provides that the duties of the MAE are
to "initiate studies and make recommendations on marine 'matters
of the city to the city commission and shall be responsive to the
15
city commission on marine matters referred to the board by the
city. II Neither the City Commission nor the City management'
referred this matter to the MAB. To the contrary, the
Harbormaster placed the matter on the MAE agenda at his own
behest and,not under any direction from his superiors.
36. Clearly, a significant part of the community believes
that there is too much boating in Clearwater Pass, especially on
weekends, a~d especially in front of Shephard's, and that too
many of the boaters, particularly the renters of personal water
craft, are either incompetent, irresponsible, or both. Many of
these people, also believe that Shephard's contributes
significantly to these problems. If so, the appropriate remedy
is legislative. The Florida Legislature, Pine lIas County, and'
the City,of Clearwater all have an interest in the regulation of
water craft and the Shephard's business; ,however, the evidence
supports the Eoard's decision that denial of the Applicant's
conditional use permit is not the appropriate remedy.
DISPOSITION
Based upon the ,foregoing Findings of Fact and Conclusions of
Law, the appeal is denied, and the conditional use permit,
application ,is granted.
16
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, , ' COPIES FURNISHED:
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Allen S. Zimmet, Esquire
Tew, Zinober, Barnes,
Zimmet & Unice
,2655 McCormick Drive
Post Office Box 5124
Clearwater, Florida 33759
J. CE JOHNS
Ad inistrative L w Judge
1sion of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the
Division o~ Administrative Hearings
this ..Q~ ~day ~f September, 1998.
Leslie K. Dougall-Sides
'Assistant City Attorney
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618
Timothy Johnson, Jr., Esquire,
Johnson, Blakely, Pope, Boker,
Ruppel & Burns, P.A.
911 Chestnut Street
Post Office Box 1368
Clearwater, Florida 33757
Cynthia Goudeau, City Clerk
City of Clearwater
Post' Office Box 4748
Clearwater, Florida 34618
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NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by chis Final Order is entitled
to judicial review by connnon law certiorari review in circuit
court. See Section 36.065(6) (g), City of Clearwater'Land
Development Code.
17
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
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5 'AQUA WAVE RENTALS, INC.,
Appellant,
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vs.
Case Number~ 98-2685'
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CLEARWATER PARASAIL, INC.,
8 and CITY OF CLEARWATER,
Appellees/Respondents.
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FINAL HEARING
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BEFORE:
HONORABLE J. LAWRENCE JOHNSTON
Administrative Law Judge '
City Manager's Office .'
112 South Osceola Avenue
Clearwater, Florida
14
15 TAKEN AT:
16
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17, DATE:
18 TIME:
19, , '
REPORTED BY:
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21
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24
25
August 5, 1998
Commencing at 1:00 p.m.
Concluding at 5:30 p.m.
~. L
CEIGE AMES
Court Reporter
Notary Public
State of Florida at Large
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D & D REPORTING SERVICE
, 915 CHESTNUT STREET
CLEARWATER, FLORIDA 34756
, 727) 468-2002
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APPEARANCES:
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On behalf o~ the City of Clearwater:
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LESLIE K. DOUGALL-SIDES, ESQUIRE
Assistant City Attorney
112 South Osceola Avenue
Post'Office ,Box 4748
~learwater, Florida 33758-4748
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On behalf of the Mr. Potthoff:
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ALAN s. ZIMMET, ESQUIRE,'
JOSEPH A. CORSMEIER, ESQUIRE
Tew, Zinober, Barnes, Zimmet
2655 McCormick Drive
Clearwaterj F~orida 33759
& Unice
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On behalf of Mr. Conatser:
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'CLAY SCHUETT, ESQUIRE
Johnson & Blakely, Pope,
Bokor, Ruppel &:Burns, P.A.
911 Chestnut Street
Post Office Box 1368
Clearwater, Florida 34617
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23
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INDEX 'TO PROCEEDINGS
2
PAGE
3
PROCEED INGS .............................. I .. , .. .. .. 5
OPENING STATEMENT BY MR. ZIMMET ...... ..... 10
OPENING STATEMENT BY MS. DOUGALL-SIDES .... 22
OPENING STATEMENT BY MR. SCHUETT .. ........ 28
APPELLANT'S WITNESS - WILLIAM C. HELD, 39
JR.
DIRECT EXAMINATION BY MR. ZIMMET .. ... ..... 39
CROSS-EXAMINATION BY MS. DOUGALL-SIDES .... 58
7 ,CROSS-EXAMINATION BY MR. SCHUETT . ........ 63
REDIRECT EXAMINATION BY MR. ZIMMET ... ..... 80
APPELLANT'S WITNESS - DEPUTY DAVID .. ..... 83
LITTLEJOHN
DIRECT EXAMINATION BY MR. CORSMEIER ....... 83
CROSS-EXAMINATION BY MS. DOUGALL-SIDES .... 89
CROSS-EXAMINATION BY MR. SCHUETT..... ..... 91
REDIRECT EXAMINATION BY MR. CORSMEIER ..... 96
APPELLANT'S WITNESS - TERRY L. NOLL ....... 98
DIRECT EXAMINATION BY MR. CORSMEIER .. ..... 98
CROSS'-EXAMINATION BY MS. DOUGALL-SIDES '.. 108
CROSS-EXAMINATION ,BY MR. SCHUETT . ... .... 109
REPONDENT CONATSER'S WITNESS - GERALD 113
FIGURSKI, ESQUIRE
DIRECT EXAMINATION BY MR. SCHUETT.... .... 114
DIRECT EXAMINATION BY,MS. DOUGALL-SIDES.. 120
CROSS-EXAMINATION BY MR. ZIMMET .......... 122
APPELLANT'S WITNESS - ROBERT G. POTTHOFF. 129
DIRECT EXAMINATION BY MR. CORSMEIER .. .... 129
CROSS-EXAMINATION BY MS. DOUGALL-SIDES ... 147
CROSS-EXAMINATION BY MR. SCHUETT .........151
REDIRECT EXAMINATION BY MR. CORSMEIER .... 166
RECROSS-EXAMINATION BY MR. SCHUETT ... .... 168
APPELLANT RESTS .......................... 169
.. .. . . .. .... 169
4
5
6
8
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RESPONDENT'S WITNESS - CLIFTON H.
CONASTER
DIRECT EXAMINATION BY'MR. SCHUETT.... ....
DIRECT EXAMINATION BY MS. DOUGALL-SIDES ..
CROSS-EXAMINATION BY MR. CORSMEIER .......
REDIRECT EXAMINATION BY MR. SCHUETT.. ....
RECROSS-EXAMINATION BY MR. CORSMEIER . ....
HEARING CONCLUDED. ... ... ... ... ...........
CERTIFICATE OF COURT REPORTER........ ....
169
179
181
189
190
202
203
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LINE
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22
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8
10
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22
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1
3
15
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,46
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INDEX TO EXHIBITS
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PAGE
LINE
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',5
APPELLANT'S EXHIBIT NO.1, MINUTES,
, ' RECEIVED
BOARD'S EXHIBIT NO.1, JOB DESCRIPTION,
RECEIVED
APPELLANT'S EXHIBIT A, STATISTICS,
RECEIVED
EXCERPTS FROM THE CODE - OFFICIAL .... ...
" RECOGNITION
'7 ,APPELLANT'S' EXHIBIT NO.4, PHOTOS,
RECEIVED
GOVERNMENT'S EXHIBIT NO.3, AFFIDAVIT,
RECEIVED
103
1;3
2
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127
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17
,18
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20
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21
22
23
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25
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P-R-Q-C-E-E-D-I-N-G-S
2
THE COURT: Is everyone ready to proceed?
MR. CORSMEIER: Yes, sir.
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THE COURT: Let's go on the record. We're
here for the final hearing of the -- style of
hearing entitled Aqua Wave Rental, Inc., Appellant
versus Clearwater parasail, Inc., and City of
.
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Clearwater. They've been listed as appellees, but
I think somewhere technically under the code they
are called respondents. So it should read
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respondents.
It's Division of Administrative
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Hearings, Case Number 98-2685.
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My name is J. Lawrence Johnston,
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Administrative Law Judge from the Division of
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Administrative Hearings, and I've been assigned to
serve as the hearing officer in this proceeding
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under the code.
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Would the attorneys for the parties make their
appearance for the record at this time.
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MR. ZIMMET: Yes, thank you.
I'm Alan Zimmet.
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With me today is Joseph Corsmeier. We're here on
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behalf of Aqua Wave Rental.
MS. DOUGALL-SIDES: Leslie Dougall-Sides on
behalf of the Respondent, Board of Planning and
Zoning.
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MR. SCHUETT: And my name is Clay Schuett.
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And I'm here on behalf of Cliff Conatser.
I don't
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know what they officially call him in the record.
THE COURT: As I said, he was referred to as
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one of the appellees, but, actually, technically
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he's one of the Respondents.
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,MR. SCHUETT: Right, the Clearwater parasail
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is.
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THE COURT: Yes. Also the appellee would be
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the'applicant in the case as I understand it.
MR. SCHUETT: Yes, sir"that',8 correct.
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THE COURT: Are there any preliminary matters
that should be put on the record at the outset?
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MR. SCHUETT:
I think there is one preliminary
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area matter, and it goes to the appeal and this may
not be the proper time -- the question of whether
Mr. Potthoff would under Section 36.065'have an
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interest and therefore having the right to appeal
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the decision. Now, I don't know if you want to
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address that at this point, or if you would like to
get further into this before we address that.
THE COURT: This goes to the issue about
thinking the hearing was continued and so forth; is
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that correct?
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MR. SCHUETT: Not so much as in just to the
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definition that is set out in the code of whether
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he is a party of interest as the code would suggest
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that he is or would require.
It says to appeal
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party interest, the property owner, the city
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manager, or any person who would suffer an adverse
effect to an interest protected by the Land and
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Development Code. And at this point without any
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further evidence, it's my client's position that we
don't know what adverse impact it would have to his
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interest. Mr. Potthoff also rents waverunners in
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that same area.
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THE COURT: That would be a matter for
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evidence.
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MR. SCHUETT: Right.
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THE COURT:
In any event, we will proceed. At
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the outset as required by the code, I will at this
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time receive the cases and exhibits that were
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presented before the Planning and Zoning Board.
And I'm assuming that I have all of those that were
sent with the referral of the appeal; is that
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correct?
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MS. DOUGALL-SIDES: Yes, Your Honor.
I did
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have one additional item from the clerk's file that
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I would like to enter in the re'cord, if there is no
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objection, which would be the affidavit of mailing
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notices and the attachment to that which the clerk
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develops in the course of mailing the 500 foot
notices to neighboring property owners.
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THE COURT: Should that be a part of those
matters or would that be an exhibit that you would
be presenting during the hearing?
MS. DOUGALL-SIDES: I could enter it as an
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exhibit.
It was from the clerk's file and was not
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submitted to you as part of the record.
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THE COURT:
If it's to the extent that it
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might really be relevant, why don't you just
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present it during your case as one of your
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exhibits.
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MS. DOUGALL-SIDES:' Very well.
MR. SCHUETT: The only other thing there is
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and this is I have a tape -- I've already received
a tape of the hearing. I have a videotape that was
taken off the television of the hearing, and did
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not know, if there is an objection I would like to
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go ahead and present that.
It might be easier for
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you, when you're reviewing that to have the tape.
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It's going to be the same thing as recorded.
It
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just has the visual also.
It's about an hour and a
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half long hearing. Do you have an objection?
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MR. CORSMEIER: To hearing it today?
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MR. SCHUETT: No, not to hearing it today.
For him -- for Mr. Johnston when he goes back.
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MR. ZIMMET:
I don't have an objection if you
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have a copy for us, to make sure it's the same.
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MR. SCHUETT: That's one thing I do not have
at this point, this is the only copy that I do
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have.
Is that going to be a problem, Mr. Zimmet?
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MR. 'ZIMMET: We have a copy of everything else
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that the hearing officer has.
I don't have an
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objection to it, but I --
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THE COURT: Why don't you arrange to make
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,copies and then send me one.
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MR. SCHUETT: Okay.
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THE COURT: Any other preliminary matters
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before opening statements? Does the appellant wish
,the make an opening statement?
MS. DOUGALL-SIDES: Your Honor, did you wish
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to discuss the rules of sequestration of witnesses
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at this time?
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THE COURT: I guess, we could put on the
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record -- I forgot about that.
I have been advised
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by counsel that either the rule is being invoked
and have agreed that the witnesses will wait
outside the hearing of these proceedings until they
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are called as witnesses; am I correct on that?
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MR. SCHUETT:
Except for obviously the
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appellant and the respondent.
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THE COURT: Each party can have a
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representative who is a non-attorney representative
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who would not be the under the rule.
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MR. ZIMMET: We are including those people we
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intend to call as witnesses as we discussed before
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the hearing, members of the public are normally
allowed at a time to speak. And there are members
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of the public here, who want to watch the hearing
and I think who want to speak, ,but we don't intend
to call them as witnesses.
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MR. SCHUETT: That's correct.
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THE COURT:
I assume you've instructed your
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witnesses and they are waiting outside.
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MR. SCHUETT: Yes.
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THE COURT: Opening statements.
MR. ZIMMET: Thank you. Again, let me just
introduce you to the folks on my side of the table.
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Mr. Potthoff is the owner of Aqua Wave Rentals.
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is our client and the appellant in this proceeding.
And then Mr. Corsmeier and myself are with the law
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firm of Tew, Zinober, Barnes, Zimmet & Unice, and
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we are representing Mr. Potthoff and Aqua Wave
Rentals in this matter.
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This is an appeal of a conditional use that
2 was approved for outdoor commercial recreation
3 entertainment to allow the rental of up to four,
4 ,two person, what are called personal watercrafts
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and a flats fishing boat. Let me just state right
up front that as part of this appeal we are not
objecting to the flats fishing boat, but are
objecting to the approval to allow the rental of
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the four" two-person, personal watercrafts.
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The Planning and Zoning Board approved this
conditional use application on May 19, 1998. That
conditional use application was submitted,by a
William Shephard and Clifton Conatser for operation
at a property located at 619 Gulfview Boulevard.
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Just so you're aware, that's at the south part
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of Clearwater Beach near the bridge that leads over
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to the Sheraton Sand Key, and the Sand Key area,
Sand Key Beach, which' are on the south side of the
bridge. This is on the north side of the bridge in
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Clearwater, in what is called the Clearwater Pass
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area, which leads out into the gulf. And on the
other end of the eastern end is the intercostal
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waterway.
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The issue as you have stated is whether the
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Planning and Zoning Commission decision to grant
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the conditional use permit to Clearwater parasail
should be sustained.
First, I think it is appropriate that we take
a look at the applicable provisions of the
Clearwater Code. The standards for approval of
this conditional use application are contained in
Section 41.033. And that section provides, and
I'll read the provisions that we think are
applicable, and that we've cited in our notice of
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appeal.
It says:
IIA conditional use shall be
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approved by the board only upon determination that
the application and evidence presented clearly
indicate that ...11 and then they give the criteria.
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The criteria that we have cited in our notice
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of appeal is Number 4 and Number 6. Number 4,
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says:
liThe use shall be consistent with the
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community welfare and not detract from the public's
convenience at the specific location." Number 6,
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provides that:
UThe use shall be compatible with
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surrounding area and not impose an excessive burden
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or have a substantial negative impact on
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surrounding or adjacent uses or on community
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facilities or services.1I
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It is those two provisions that we believe the
applicant did not present evidence that clearly
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indicates compliance with those two provisions, and
that the Planning and Zoning Board did not have
competent substantial evidence to support their
decision on those two criteria.
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The main issue, both in this hearing and also
the issue that was discussed in front of the
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Planning and Zoning Board, was safety. And the
concern for safety by allowing additional personal
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watercraft to use this area of Clearwater Pass.
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And there were some questions as to whether safety
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was to be a consideration.
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And I do want to also point out Section 35.04,
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of the Land Development Code which sets forth the
purposes of the development code as a whole. And
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it says:
lilts purposes are to protect, provide
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for, and promote the public safety, health,
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convenience, comfort and prosperity and general
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welfare of the residents and property owners of the
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city. And to enhance the qualify of life of all
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residents and property owners of the city. II
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THE COURT: What is that section number?
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MR. ZIMMET: That is Section 35.04. We've got
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certified copies of those sections to provide to
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you.
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And then I guess the other section that is
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going to be applicable is 36.065(2), which defines
a party in interest. To include any person who
will suffer an adverse affect to an interest
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protected or furthered by the Land Development
Code.
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My client was actually. grandfathered in under
the Land Development Code to operate a rental of
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personal watercrafts in an area not too far from
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where this proposed conditional use is. And so
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that section is probably relevant with regard to
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your determination as to whether he is a ~arty in
interest.
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The hearing procedures you're probably
familiar with, they're provided in that same
section, Section 36.065. And I don't think there
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is any doubt that under that section we filed a
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timely appeal. The review court criteria are set
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forth in 36.065(6). And I just want to paraphrase
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some of, the subsections of that section. Your
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decision is to be guided by the city comprehensive
plan, the relevant portions of the code, and the
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established case.
I think I provided you with the
relevant portions of the code. And we will discuss
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some case law during our presentation.
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The burden is on us to show that the decision
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of the Planning and Zoning Board cannot be
sustained upon the evidence before the board and
before -- that is presented to you today. Or that
the decision of the Planning and Zoning Board
departs on the essential requirements of the law.
It is our position that the Planning and
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Zoning Board's decision cannot be sustained, based
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upon the evidence that was presented to the board
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or the evidence that you are going to hear ,today,
and departed from the essential requirements of
law. Even though' we only have to meet one of those
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criteria, we think we're going to meet both.
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I think when you're done hearing all of the
evidence, the evidence will show that the applicant
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did not clearly establish that his proposed
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conditional use is consistent with the community
welfare, does not detract from the public's
convenience, and is compatible with the, surrounding
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area.
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An important fact is that the Planning and
Zoning Board when they considered this item, they
did not have two important things that will be
available to you today. First of all, they did not
have the testimony of William Held. Mr. Held is
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the long-term City Harbormaster on the verge of
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retiring in a week or so. Before being
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Harbormaster, he was Assistant Harbormaster, and
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before that he was in the Coast Guard. So he has a
4
lot of experience in marine matters and safety. He
was unavailable for that hearing. He requested
,that the matter be continued. The applicant
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requested for economic reasons that it not be
continued, and the Planning and Zoning Board
'decided to hear it.
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So while they had a memorandum from Mr. Held,
they never got an opportunity to hear his
testimony, which you will get an opportunity to
hear.
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I anticipate that Mr. Held will testify that
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he recommends that this conditional use not be
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approved because he is concerned about safety.
He's concerned about the safety aspect because this
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is a very congested area.
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And to give you a little history, there has
been two prior applications, similar applications
for rental of personal watercrafts from the same
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area, the same address in the, past, in 1989 and
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1990, both were denied. And Mr. Held will testify
that they were denied for safety reasons. And that
the safety concerns have only increased since that
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time frame.
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The safety concerns have increased for a
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couple of reasons. One, Dunedin Pass has closed.
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Which means that Clearwater Pass is becoming even
more of a major thoroughfare between the
intercoastal and people who want to get out into
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the gulf.
8
Secondly, there has been a new bridge that has
been built over to Sand Key. There used be to a
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draw bridge. Now there's a high standing fixed
bridge, so that it can actually take more boat
traffic, boats with, you know, the higher masts
don't have to wait for the bridge to open. So he's
going to testify that the area is even more
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congested than ever. He will also testify that
there have been no other conditional use approvals
granted in the pass area for personal watercraft
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under the Land Development Code.
His opinion is supported by statistics that he
cited both in his memo that was presented to the
Marine Advisory Board and also statistics that will
be provided to you by various law enforcement
agencies during this hearing.
Those statistics show that personal watercraft
account for 36 percent of the all vessel accidents
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result in physical injuries. For the obvious
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in Florida, yet, they only account for roughly
9 percent of the total boats registered. So
compare the number of boats that are actually
registered and the amount of them that are personal
watercraft compared to how many accidents involyed
pers~nal watercraft, and it's way out of line.
Also the statistics will show that generally
accidents involving personal watercrafts more often
reason, I'm sure that we could all conclude that
people who are driving personal watercrafts are
less protected than those people who are operating
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vessels.
His opinion, Mr. Held's opinion, is also
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supported by the Marine Advisory Board. And
Mr. Held will testify a little bit about the
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experience of those people on the Marine Advisory
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Board. They recommended denial of this conditional
use application.
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Also the record that you have indicates that
the pinellas County Sheriff's Office, which is
responsible to patrol this area by vessels, oppose
the conditional use approval.
We think when the hearing is concluded it will
be obvious that the Planning and Zoning Board came
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to an incorrect decision because they incorrectly
interpreted the criteria that are contained in
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Section 41.033. They were advised by both the
5
applicant and it appears also by the assistant city
attorney present at the meeting, that safety was
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not contained in the City'S criteria.
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We think it is pretty obvious that safety is
part of the criteria. The general purpose of the
Code includes as its first purpose public safety.
And the standards in 41.033 indicate that we're
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talking about things such as consistent with
community welfare. We suggest that welfare
includes safety. It talks about compatibility, not
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having a negative impact on surrounding or adjacent
IS
uses or on community facilities. Clearwater Pass
16
is essenti~lly a community facility.
It's
18
something that the City maintains, a channel
through Clearwater Pass.
17
19
But even more than that, this issue has
20
already been decided, there was a previous decision
21
from the 1990 application. By that time, I
22
believe, you guys were called hearing officers and
23
there was a hearing officer by the name of Donald
24
Conn .,
25
MR. SCHUETT: At this time, you know, I let
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Mr. Zimmet kind of go into some of the past, but r
think'there is a point to be made about the 1990
decision that is relevant, that it plays on the
different factors, much different factors.
2
3
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5
And when you use that -- I don't see where the
6
relevance of the 1990 decision comes into play
7
here, you know. The decision, you know, signing
8
the code, making the ordinance on the statistics, I
9
think is fine; starting to now rely on a past
decision with completely different facts and
circumstances, I don't think it is relevant. And I
10
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don't believe it ought to be heard or that that'
1990 decision ought to be able to come into the
,13
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record or be referenced.
15
THE COURT: Well, is it something that I
16
should be able to refer to. And it can and should
17
be in the record, at least for me to be able to
18
decide how relevant it is.
r will have to compare
19
those facts to these facts and see what use
20
Mr. Zimmet was making and go from there.
21
MR. ZIMMET: The point I'm trying to make here
22
is Hearing Officer Conn looked at the issue of
safety and the criteria which -- well, I think the
numbers are changed. They're the same criteria
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that we're talking about today. And he considered
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safety to be part of that criteria and the basis
for his decision. Arid that's the use I want to put
there is really from my interpretation of the
Code's standpoint.
2
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4
5
THE COURT: Do you have case numbers for those
cases handy?
MR. ZIMMET: I actually have a certified copy
6
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from the clerk's office.
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THE COURT: Will it be presented today?
MR. ZIMMET: Yes.
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THE COURT: You also mentioned an '89 case.
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Is that also going to be presented?
15
MR. ZIMMET: That didn't go to a hearing
officer, only the 1990 went to a hearing officer.
THE COURT: Okay.
MR. ZIMMET: And I anticipate in this hearing
that the applicant is going to attack my client
16
1.7
18
based upon what his interest is in this proceeding.
And we will be up-front. Obviously, one of my
19
20
client's interests is economic, just like
Mr. Conatser's ,int~rest in pushing to not continue
21
22
the hearing, pushing for an expedited hearing here,
and making this application as economic.
But my client is also concerned about the
23
24
25
safety of the people that he rents to. And he's
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not the only one that's concerned about that. As I
said Mr. Held, and the Marine Advisory Board, the
,2
3
sheriff's office, and a number of the neighbors and
4
people who live in the condominiums, and some of
5
the hotel managers who have hotels in the area,
.6
spoke out at the Planning and Zoning Board. And I
think some of them are here today hoping that they
will get an opportunity to speak to you.
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Basically in summary, it will be our position
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.at the conclusion of this hearing that the Planning
and Zoning Board did not have competent substantial
evidence to support its decision that it made.
11
12
13
There was not sufficient evidence, presented for it
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to conclude that, clearly, public safety is not,
again, going to be a problem with this conditional
15
16
use approval.
And at the conclusion of the hearing, we will
17
18
request that the decision of the Planning and
Zoning Board be reversed.
19
20
THE COURT: Opening statement from the
Respondent at this time.
21
22
MS. DOUGALL-SIDES: Yes, on behalf of the
23
Planning and Zoning Board. The decision in this
case of that Board has been appealed by a rival
24
25
business owner, who the record and evidence today
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will show is somewhat down the beach from the
applicant's proposed site. The appellant has
apparently had his personal watercraft business
since December 1997. The business itself was
grandfathered in some years back, apparently, when
the new Land Development Code was adopted, it was
already existing. At the hearing before the
Planning and Zoning Board
THE COURT: Excuse me. When was that? When
was it grandfathered?
MS. DOUGALL-SIDES:
I believe there is in the
Marine Advisory Board minutes, there's mention by
Harbormaster Held that it was in 1980.
THE COURT: When did you say your
understanding was that the current owner of the
business became the owner?
MS. DOUGALL-SIDES: December 1997.
I think
that is also in the Marine Advisory Code.
THE COURT: When you say "current ownerlt are
you referring to Aqua Wave Rentals, Inc.?
MS. DOUGALL-SIDES: Yes. The Planning and
Zoning Board heard from the applicant and his
counsel, and received a staff report with the
application, which is of record. The staff report
at Page 4, did find that the proposed use complied
24
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with all of the standards, for approval that are in
the Land Development Code, went through some
discussion of each of the criteria. That planning
document is thus far unrebutted in the record.
2
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4
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The Planning and Zoning Board also heard from
a number of objectors, who were mainly neighboring
condominium owners at the Continental Towers which
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is nearby the site.
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The Board would submit that the record will
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show that the objections of the neighbors mainly
were oriented toward other activities that take
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place on the Shephard's site, such as, noise from
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bands that play at the outdoor facilities; there
are some outdoor bars. There is boating traffic
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15
which comes and goes, comes up on the beach ,and
people get out and go to various activities at this
site as a whole, and that it did not specifically
address the proposed jet ski rental use.
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The Board also did receive a memo from
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Harbormaster Bill Held which attached ~ome Marine
21
Advisory Board minutes. The Board would argue that
22
it did consider those items.
It did not continue
23
the matter. It did hear the case when it had been
24
agenda-ed. The applicant was present. The
applicant did not want to continue it. The
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appellant was not present, nor did he submit any
written materials opposing the application~
The Marine Advisory Board which had currently
met and considered the matter prior to Planning and
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4
5
Zoning Board's hearing, voted to recommend denial
8
to the Planning and Zoning Board on the basis that
this activity would increase commercial boating
activity in Clearwater Pass and the area and affect
6
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safety.
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The evidence will reflect that the Marine
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Advisory Board deals with marine operations and
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regulatory matters and does not possess the
authority to rule on conditional use applications
13
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or zoning matters. And their concerns were not
15
necessarily dispositive of the Planning and Zoning
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Board's action.
'17 The code section which addresses the Marine
18 Advisory Board, Section 2.199, recites that the
19 ' Marine Advisory Board shall initiate studies and
20 make recommendations on marine matters of the city
21
to the city commission. And to be responsive to
22
the city commission on marine matters referred to
23
the board by the city. There is nothing in there
24 about advising the Planning and Zoning Board 'on
25 'zoning the land in this matter.
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The Planning and Zoning Board did vote
2
unanimously to approve this conditional use. The
3
4
record reflects the Board placed conditions on
these to merit safety concerns. And that's in the
board minutes reflecting the approval.
5
6
There were several conditions. Hours of
7
operation were 9:00 a.m. to dusk. Jet skiers were
8
required to honor the existing no-wake zone and
would engage in idle speed in order to either
access the gulf or beach area. One boat or jet ski
will be available to act as a chase boat and to
9
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11
12
respond to emergencies or offer assistance to jet
skiers. 'The applicant will comply with state law.
And buoys would be placed to identify the beach
13
14
1.5
starting area for these crafts and the route
between open water out in the gulf and the beach
starting area. And the operation would be limited
16
17
18
to four jet skis and one flats boat. What I think
I'heard today, the appellant is no longer objecting
tQ the flats boat aspect of this.
19
20
21
Again, the Board would state that the evidence
will show the appellant is not within either the
200 foot notice area which is required by code, or
the more liberal 500 foot notice area which the
, 22
23
24
25
city clerk actually notifies the different property
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owners. This is not particularly required by the
code, but we did it.
27
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The Board feels the evidence will show the
4
appellant's interest is solely non-interested, and
5
6
that he would not qualify as a person who would
suffer an adverse effect to an interest which is
7
protected or furthered by the Land Development
Code, the end of that code does not further
8
9
strictly economic interest property owners.
10
The appellant has appealed only on two out of
the six gen~ral standards being consistent with the
community welfare standard and the compatibility
with the community welfare standard.
11
12
13
14
The burden is on the appellant to show that
15
the decision of the Board could not be sustained by
16
evidence that's before the Board and before you
today, or that the decision departs from essential
17
18
requirements of law.
The Federal Zoning District
19
here is Resort Commercial 28, or CR 28. And
20
Section 40.401, which I have a certified copy ,of,
21
describes this district.
It's a mixed multifamily
22
residental hotel.
It has some restaurants and
23
retail uses. And it is described in the Code as
24
IICreative to provide a high density
resort/residential district with complimentary
25
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tourists associated retail and service uses. And
2
what is called outdoor commercial
3
recre~tion/entertainment1t, which this application
4
was for, lIis allowed only as a conditional use.1I
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,We think the evidence will show that this use
7
is compatible with that mixed-use character
district which is tourists. It has hotels.
It has
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other jet ski rental businesses including the
appellant. And, in fact, the mere distance of the
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appellant's business in the very same area, argues
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that he's compatible with the district, he's there.
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I think the evidence will show that the
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Planning and Zoning Board's decision was based on
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valid evidence before them there was competent
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Board and to be used today, which would support the
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Board's decision.
21
THE COURT: Opening.
MR. SCHUETT: Yes. As I said before my name
is Clay Schuett. And I represent Cliff Conatser
who is the applicant in this case. You always look
18
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20
'22
for a theme when you first hear about a case, 'and I
23
think there's a few here.
24
First of all, as Mr. zimmet said, it is our
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contention that the -- the theme in this case is
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that the appellant, Mr. Potthoff, doesn't want any
economic competition. And this is purely
economical. And I think they said, yes, we agree
it is purely economic, but there's also safety.
And there's a few things that I would like to say
about the safety.
2
3
4
5
6
7
Number one, there's a point that
8
Ms. Dougall-Sides made, which is, it kind of runs
9
contrary to say that he's concerned about safety.
10
He's running the same exact business in that same
11
exact area.
12
The second thing is Mr. Potthoff did not show
up at the Planning and Zoning Commission when this
13
14
was to be heard.
I believe, when I was reading
15
through some documents, the stated reason was
16
though, you know, I heard that we would probably
get a, delay or something along those lines. But if
his concerns, were truly about safety, he would have
17
18
19
been there.
20
Let's address the safety. And, obviously, the
person th~y are bringing in now is Mr. Held, the
Harbormaster. The problems that -- there's a few
problems with this safety issue. There's a lot of
code cited to you, but I think the most important
one is Section 41.052, which is the general
21
22
23
24
25
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standards. And it says, liThe standards in this
section shall apply to all uses which are
identified in this development ,code as conditional
2
3
4
use.1t
5
Is that the one you-all cited before? I don't
believe so -- and these are the standards that the
6
7
Board used. And if you go back and look at the
Code, it says, "0nly those uses which comply with
all the standards contained in the section may be
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approved dealing with conditional uses. II
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When you look at that and you look at the
12
section that was cited by Mr. Zimmet, safety is not
listed as a criteria. It is not specifically
13
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listed that the Planning and Zoning Board will
15
consider the safety, you know, the safety aspects.
16
Now, if that was my only argument,
17
Mr. Conatser probably shouldn't pay me any money,
18
and I shouldn't be here.
19
Assuming though that you do believe that
safety can be looked at, if you assume by looking
at the compa~ible surrounding ~ith the natural
environment and with the other areas they've
20
21
22
23
listed.
It is our argument that -- and we will
24
present evidence today, that the only thing that
you can be concerned with, the only thing the
25
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8
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12
13
14
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16
17
18
19
20
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22
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23
24
25
Planning and Zoning Board when they were sitting
there talking about safety, is whether his proposal
of how he's going to run his business is going to
be' safe and is his proposal then going to insure
the safety, to insure that he doesn't have
accidents.
Furthermore, its contention is -- you'll ask,
just as the Planning and Zoning Board did, when
you're looking at the safety issue, must assume,
that Mr. Conatser, that, Clearwater Parasail is
going to act in a safe manner. You can't assume
that he is going to go out and violate the law or
that his people are, that is not an assumption.
The reason for it is simple. That is why you have
patrols out there in that pass. That's why we have
citations. If Mr. Conatser isn't going into a safe
business, then we can use those issues against him
to not grant him or to revoke his conditional use
permit.
But when you look at safety, if safety is a
concern, and, again, it's not specifically listed
out in any of the sections that are talked about"
talked about conditional use, safety wasn't listed.
But if you are going to look at it, it is with
contention and it's what the Planning and Zoning
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Board looked at. And it's our contention that you
must look at only his safety. They want you to
2
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judge the safety of the pass.
I think it's pretty
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simple. They, as Mr. Zimmet said as they came in,
this is an unsafe pass.
4
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And, again, it is our contention that the
Planning and Zoning Board -- that's not their
7
8
decision, the safety of the pass.
If that pass is
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unsafe or if there is too much activity, that's a
11
matter for the legislature. That's a matter for
the city commissioner or the city to address.
The other thing is, they talked a lot about
personal watercraft. They talked a' lot about
,10
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13
14
statistics. When you have those kind of
statistics, it's not the Planning and Zoning Board
15
16
that makes up the decision regarding how that pass
17
18
can be run. They make a decision on whether he
meets the criteria, or whether any applicant meets
19
the criteria, and whether he's going to be safe,
I '
20
and that's the decision. That's what they're
21
limited to.
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When you start talking about Clearwater Pass,
when you start talking about all the things going
on, that is not a proper decision for the Planning
.,
23
24
25
and Zoning Board.
In fact, I'm going to bring in
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somebody today who not only sits on that Board, but
you'll hear through his testimony that he's been
involved in this issue for over 20 years, and has
sat on the charter review community for Clearwater.
2
3
4
5
You can go one step further -- and that's what
you always do as an attorney. You're always
thinking of all the different arguments.
6
7
8
Let's say that the Planning and Zoning
Board -- I guess, the only consideration they can
take into when it comes to that pass now is how
9
10
11
unsafe it is.
12
After first making sure that the applicant
13
meets the criteria, after making sure that his
proposal, or how he's going to be safe, you know,
14
15
pass muster, which is what they did, the only other
16
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thing that they could possibly look at is, is this
17
going to burden the situation out there? Having
18
his waverunner business out in Clearwater Pass is
19
'20
that going to burden the situation?
21
And I really ask you that when you do go back
and you review the decision made by the Plann~ng
and Zoning Board and when you listen to that, they
22
23
specifically at the end, said that they do not see
that this application was going to be a burden on
the safety -- or it was going to burden t.he
24
25
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situation out in Clearwater Pass.
2
What they talked about was: He has four
3
waverunners that he wants to run, how he wants to
4
run them not within the pass. It is important when
5
you see where his business will be located, to see
6 ,hi~ business won't be in the pass. He's at the
7
west end of the pass, actually. You have the
bridge, the appellant's business. You have the
8
9
bridge here, you have Clearwater -- you have the
gulf out here, and this is the pass, it runs this
10
11
way. The appellant is right here. My client is
right here, right near the end of the pass. The
12
13
evidence was put forth in front of the Planning and
Zoning Board, he would be running outside. And as
1'4
15
they said when they looked at that issue, his
16
application did not burden Clearwater Pass.
You know, when you start talking about only
17
18
four waverunners, how's it going to get anywhere if
19
it is bad at all?
20
Furthermore, this is a resort area.
2,1
Waverunners are an important part of this type of
business.
22
23
And the bottom line is on the safety issue is
to judge his proposal, which he will present to
24
25
I'm going to put him up, and he's going to
you.
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35
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talk to you about that.
2
The safety of the pass is really not an issue
to be decided by the Planning and Zoning Board.
That is an issue that needs to be decided by the
legislature. All these things that Mr. Zimmet
cites, all these things they talk about that
Mr. Held wants to talk about, those are issues.
3
5
6
7
8
That's stuff that should be regulated by the city
commissioner and by the legislature, whichever that
is.
With respect to Mr. Held, and you heard that
he didn't get a chance to testify. Well, first he
did get a chance to put in a memorandum, which he
did, which he outlined all of his problems with
this application.
In addition he attached the
minutes of the Marine Advisory Board and he also
attached the statistics.
They made mention that my client for economic
interests pushed forward for them to go forward, to
go without Mr. Held there. Mr. Held was given
plenty of opportunity to be there, could not'be
there, and then he couldn't even have his assistant
be there. This is something they knew in advance
was going to be happening. And yes, he does have
economic concerns because he wants to get out, and
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that's why.
2
But, I guess, the main point by Mr. Held is,
is all of his points that I believe he will raise
now} were raised in front of the Board. They had a
3
4
5
copy of everything that he did.
In fact,
6
Mr. Johnson, who I work with, addressed all of
7
those issues.
8
As far as the Marine Advisory Board as
Ms. Dougall-Sides mentioned, they do not playa
role in this decision. They do not playa role
with respect to the Planning and Zoning Board.
9
'10
11
12
They're just like any other private citizen.
If it
13
was the desire of the city planners or the city
government for them to have a role in this, then it
14
15
would be written in the code.
16
What do you have here? You have my client,
who has had no trouble in the past. He is
currently right now running a parasail business out
17
18
19
in that area, who has a good safety proposal --
most importantly, has probably the biggest interest
out of anybody to be safe, he has the economic
interest. As you'll hear him talk about his
insurance policy and all the other things.
Furthermore, he has shut down operations in the
past as safety is a major concern.
20
21
22
23
24
25
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Finally, and most importantly~ the City set
2
out a set of standards for him to meet in order to
3
get this conditional use permit. He did it. He
4
went out and met those. He went in front of a
5
hearing where there were plenty of people who
testified.
6
7
All this evidence that you're going ,to hear
today was present at that meeting. ' That Planning
and Zoning Board sat there -- and not 4-to-3 or
8
9
10
whatever, they made a unanimous decision that he
11
met the criteria and that his operation would not
be a burden on the pass, and it should be given.
Therefore, we ask that you do give deference
12
13
14
,
to that decision and that most importantly, they
did have substantial and competent evidence to make
that decision. Thank you.
15
16
17
MR. ZIMMET: Before we call the witness, can I
18
clarify one thing?
19
THE COURT: Yes.,
20
MR. ZIMMET: Ms. Dougall-Sides was referring
to the planning staff's memo to the Planning and
Zoning Board. That is totally opposite of the memo
that we were given from the City that's dated May
21
22
23
24
19,1998.
I'm just wondering now if you don't have
25
some memorandum that I don't have.
I think what
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you're looking at, Leslie, is the applicant's
responses to those criteria, because this memo that
2
3
we received is dated May 19, 1998.
THE COURT: Let's go off the record.
[Off-the-record discussion.]
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THE COURT: Back on the record. Clarify that.
Go ahead.
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8
MR. ZIMMET: For clarification when
9
Ms. Dougall-Sides indicated that the planning
10
staff's report had indicated compliance ,with all
::c.
11
the criteria referring, she was actually referring
12
to th~ ~pplicant's application which attaches their
position as to why they believe they meet all of
13
~ .
, ',.' ......,'\
l~~-/
14
the criteria. The actual planning staff's
memorandum dated May 19, 1998, is a two-sided
"
15
;,
I,
16
document.
.', + ,
17
MS. DOUGALL-SIDES: What I have is entitled
18
Number C-3, and there is a two page --
19
THE COURT: Let's go back off the record.
[Off-the-record discussion.]
20
21
THE COURT: Back on the record.
22
MR. ZIMMET: The actual staff recommendation
23
was for a ,continuance of the item as contained in
24
that memorandum of May 19, 1998.
25
THE COURT: All right. Thank you for
(;)
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10
"
39
1
clarifying. Call your first witness.
[The witness enters the hearing room.]
2
3
THE COURT: Would you raise your hand and be
,4
sworn. Do you solemnly swear or affirm your
testimony at this hearing will be the truth, the
'whole truth and nothing but the truth?
5
6
7
THE WITNESS: I do.
8
WILLIAM C. HELD, JR.
9 being duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
f
, 12
11 BY MR. ZIMMET:
..-............
. \
" r
, '....;./
13
14'
15
,16
Q
Could you please state your name.
William C. Held, Jr.
A
Q
How are you presently employed~
Harbormaster for the City of Clearwater.
A
Q
Can you explain to the Judge what your duties
17 are as Harbormaster for the City of Clearwater?
18
A
As Harbormaster, I'm director for the Marine
~ . "
19 Department which comprises of the marina, pier 60, the,
20 Sailing Center and Beach Cove.
21
Q
How long have you been employed as the City of
22, Clearwater Harbormaster?'
23
A
I was originally hired in '81, and was
24 Assistant Harbormaster from '81 to '86.
I've been
25 Harbormaster since November 1986.
<~
I . l , . / , ... ": ~ . '. . ~ . .
40
I)
"
,. .
1
Q , And prior to becoming Assistant Harbormaster
2 with the City how were you employed?
3
A
I was in the u.s. Coast Guard.
4
Q
What kind of position did you have in the
: ' ~
5 Coast Guard?
.,".
'i
6
,A
I was a Chief Warrant Officer.
I was in for
7 27 years.
In that position, I was in Georgia, Ships and
8 Stations, in the Coast Guard.
Ii......
9
Q
As an Assistant Harbormaster and as
10 Harbormaster of the City Clearwater, is one of the areas
11 that your department oversees is the Clearwater Pass
12 area?
/.~"''''''''....
13
A
Yes.
~"'-'."""""~ .
14
Q
Has your dep~rtment through the years and have
i" ~ .
15 you personally been involved in issues of safety with
16 regard to not only the Clearwater Pass put the beach
17 areas on the gulf and the other waterways of the City of
18 Clearwater?
19
A
Yes.
20
Q
Is one of your job duties to provide opinions
21 to either other city staff or city boards concerning
22 marine safety issues?
23
A
Yes.
24
Q
Have you had an opportunity to review the
25 application for conditional use approval submitted by
v
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10
11
12
13
14
15
16
'17
18
19
41
1 Mr. Shephard and Mr. Conatser to allow the rental of
2 personal watercraft at Shephard's on Clearwater Beach?
3
A
Yes, I have.
4
First of all, what is a personal watercraft?
A personal watercraft is a vessel that is
Q
5
A
6 under 16 feet. It's normally jet-drive powered,
7 comprises of waverunners, SeaDoos, any of that type of
8 vossel.
9
MR. SCHUETT: Can I just say one thing -- just
to clarify. This include~ Mr. Shephard's name, and
this was filed by Clearwater parasail in this
court, and since that was a big issue in the first
one, and I understand that because he's the
property attorney, but, you know, Bill Shephard's
name
MR. ZIMMET: Well, he's listed as an
applicant. I think it's from the application which
has been made part of the record.
MR. SCHUETT: That's fine.
20 BY MR. ZIMMET:
21
Q
Does a personal watercraft have any brakes or
22 braking mechanism?
23
24
A
No.
Q
What kind of speeds can personal watercrafts
25 reach?
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42
1
Well, the normal personal watercraft right now
A
2 that they're selling is in the range of 50 to 60 miles
3 an hour. I've heard that Waverunner is bring out a
4 personal watercraft that will do 95 miles an hour.
5
Did you provide an opinion to the Marine
Q
6 Advisory Board with regard to whether this application
7 should be approved or recommended for approval?
8
What I did with the Marine Advisory Board in
A
9 May at their regular meeting on May the 13th, I brought
10 this application and request over to the Marine Advisory
,11 Board, the applicant was there along with several
12 members of the public, to one of the boat captains, who
13
actually reviewed the request.
I do this quite
14
frequently with requests for wake zones or that type of
15 request. So I did bring this forward to the Marine
16 Advisory Board on May the 13th.
17
Q
Has it been your practice to bring to the
,18 Marine Advisory Board similar requests for conditional
19 use approval like this one?
20
The ,conditional use approval for personal
A
21 watercraft inside the pass, I had been consistent on
22 doing that. There was originally a request in '89, to
23 put personal watercraft off this location, which was
24 brought to the Marine Advisory Board. There was a
25 request in '90, which was brought forward to the Marine
~l' -I;r.,I<I....~........, > ..... ........~+~ ,y,.h_ . .
43
n
1 Advisory Board. And then this one here in '98.
2
Q
What was the opinion that you provided to the
I
I'
3 Marine Advisory Board, your personal opinion with regard
4 to this application?
5
A
We laid all the facts out in front of the
l~ '
"
6 Marine Advisory Board, and let the applicant present his
1
"1 ~ r .
"
7 case to the Board. We have a very knowledgeable Marine
8 Advisory Board made up of city commission appointed,
,9 local residents of Clearwater. They all have a real
10 heavy background in boating. They're all very familiar
11 with the pass.
It was brought forward to them for a
12
recommendation which was naturally forwarded to the
<~
13
Planning and Zoning Board.
14
Q Did you, yourself, make a recommendation to
15 the Marine Advisory Board?
16
A
At the time that the applicant brought his
17 case into the Marine Advisory Board, we discussed it. I
18 did not, as I recall, make a recommendation on it.
19
Q
What was the recommendation of the Marine
20 Advisory Board?
, ,
21
A
The recommendation of the Marine Advisory
22 Board was to unanimously deny the personal watercraft
23 operation and the flats boat off of Shephard's.
24
Q
Any member of the Marine Advisory Board have
25 any economic interests in either approval or denial of
o
n
. '
1 this application that you are aware of?
2
A
No.
3
Q
'Did you at that'point make any recommendation
4 or opinion to the Planning and Zoning Board with'
5 consideration to their consideration of this
6 application?
, I
7
A
Yes, I did.
I don't recall the date.
I sent
.'
! '
8 a memo to Steve Doherty, the Planning and Zoning
::",.
9 Permitting Supervisor.
In that memo, I had 'a specific
I
F
10 recommendation based on some statistics from a sheriff's
:i'
11 department, and also the recommendation from the Marine
12 Advisory Board.
o
',t
13
Q
Let me show you the memorandum. We have
14 ,actually pre-marked our exhibits. We've marked this one
as Exhibit Number 2.
Is that the memorandum that you
had drafted to the Planning and Zoning Board?
A Yes, it is.
MR., ZIMMET: Do you have any objection to the
memorandum?
MR. SCHUETT: No, it's already part of the
record. This was given to the -- it should have
already gone to Mr. Johnston.
MR. ZIMMET: Well, I wasn't sure.
MR. SCHUETT: It should have been because of
the fact -- go ahead.
,',
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1
MS. DOUGALL-SIDES: The Board has no
2
objection.
It should be part of the pac~et of
3
materials.
4
MR. SCHUETT: This is what the Board
5
considered.
" '
6
THE COURT: Well, I'll compare it to what I
c.
I, '
7
have.
J.' . >
9
MR. ZIMMET: While we're stopped for a second,
the minutes of the Marine Advisory Board, were they
also made a part of the record, Leslie?
8
10
11
MS. DOUGALL-SIDES: Yes, I believe they were.
; ,
12
Let me check.
13
THE COURT: This is part of the record, so
e-)
\'~'"
14
exhibit two is not necessary.
It's already in the
15
record.
17
What else are you looking for?
MR. ZIMMET: The Marine Advisory Board minutes
16
18
of May 13th.
19
20
THE COURT: I don't see them.
MR. ZIMMET: We have a certified copy of those
24
from the city clerk.
THE COURT: I don't believe I have those. So
that will be your Exhibit 1.
MR. ZIMMET: Yes, sir.
MR. CORSMEIER: Those are copies, they're not
21
22
23
25
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10
..... '
1
certified.
2
MR. ZIMMET: I do need to ask him about those
3
or do you have any objection to the minutes?
4
MS. DOUGALL-SIDES: No objection.
THE COURT: It will be received as Appellant's
Exhibit Number 1.
5
6
7 [Appellant's Exhibit Number 1, Minutes,
8 received.]
9 BY MR. ZIMMET:
Q
Did you have an opportunity to appear
11 personally before the Planning ~nd Zoning Board?
!'
, ,
12
13
;.~=)
14
A
On this matter, no.
Q On this'matter, no. Did you request that a
continuance of that Planning and Zo~ing Board meeting be
15 requested because you would not be able to be present?
16
'I
A
Yes, I did. That particular day that the
17 Board was meeting, I was directed to attend a mandatory
18 meeting of all the department directors with the City
19 Manager. My assistant at that time, Mike Hancock, was
20 out of town. So I requested that it be continued until
21 the next meeting, which I believe was June the 2nd.
22
Q
Did you advise' Mr. Potthoff that you were
23 requesting that the matter be continued?
o
, I believe he came to my office and asked about
24
A
46
, ,
,,'. ..; ..:: ,': ..' '; ';:-:-'::~i"'-'': ,':,0:(:; ",;;: ':':;>';"::";,,\\'< /"~, )),.:' (;'.' '.' .\' ,':" '\ ::":.~ ':\ ,:.;),'; '~}~. '},
25 it. And,I'm pretty sure I told him that I had asked for
()
1 it to be continued until the June 2nd meeting.
2
How did you make your request that the matter
Q
3 be continued?
4
I discussed it with Steve Doherty, the central
A
5 permitting supervisor, and asked him that it be
6 continued, verbally.
7
What is Mr. Doherty's role with regard to the
Q
8 Planning and Zoning Board, if you know?
9
'Well, he's the permitting supervisor and he's
A
10 at the Planning and Zoning Board meetings. My
11 indications from him were that it would be continued to
12 the June 2nd meeting.
/~
,\~~
13 Q Did you ,ever hear that the matter was not
14 continued?
15
A
I heard about it after the meeting.
16
So the Planning and Zoning Board never had the
Q
17 ability to ask you questions or to hear your testimony
18 with regard to this application; is that correct?
19
A
That is correct.
20
Q
In your memorandum of May 18th, 1998, you
21 recommended denial of this application; is this correct?
22
Yes.
A
23
Q
Can you tell the Judge the basis for your
24 recommendation for denial of this application?
25
A
The recommendation on this application is
u
47
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(~
1 consistent with the 1989, and 1990, applications for the
2 same site.
Some of the conditions in that particular,
3 in both of those applications, are applicable today
4 under the Land Development Code. But here, again, I
5 don't base my recommendation just on my decision alone.
6 I brought it forward to the Marine Advisory Board for
7 the Board to consider it.
I'm very familiar with
8 Clearwater Pass.
I've been operating in and around the
9 pass since 1975.
So our recommendation on this has been
;)
10 consistent with what we have done in the past, that we
11 feel that personal watercraft operations -- more
12 personal watercraft operations inside Clearwater Pass
~~~)
13 are a safety concern. And we base that under 41.033,
14 the Land Development Code, which gives the standard for
15 approval.
16
What is the basis for concerns of safety?
Q
17
A
The concerns for safety -- we're looking at a
18 pass right now which is the main artery for boaters to
19 go out into the gulf.
Dunedin Pass is closed. We
20 currently have 44,000 to 46,000 registered voters in
21 Pinellas County.
I think all of them try to use
22 Clearwater Pass every Saturday and Sunday~ We've got a
23 lot of heavy boating activity on the weekends and the
'24 holidays, plus the fact that there'is a strong current
25 that runs through the pass. And using all of that
o
48
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'iI'1\ ~ ".
/,
49
/)
1 information the Marine Advisory Board in their
2 recommendation said that they didn't feel that this
~ .'
3 would be a safe operation for an inlet or a pass. So
4 gathering all the information together, we made our
5 recommendation for denial.
6
'Q
And you had indicated before there was an
7 application in 1989, for a similar conditional use
~,
8 approval and that was denied by the Planning and Zoning
9 Board?
'I,
10
A
Yes, unanimously.
.~~ :
~I'
11
Q
And then there was another application in
'. "
12 1990?
13
A
Yes.
.. r)
, i,' ,
. .....'trJf~
14
Q
And that one similarly was denied by the
15 Planning and Zoning Board?
16
A
Yes, unanimously.
17
Q
And that was upheld by a hearing officer?
, I
18
A
Yes, it was.
\
" '
21
MR. ZIMMET: Do you want me to have him
identify the hearing officer's decision?
THE COURT: I don't think it's necessary.
19
20
22
MR. ZIMMET: What I have is a certified copy
of the minutes that were maintained by the city
23
24
clerk as well as the decision of the hearing
25
officer. That's been certified by the city clerk.
o
50
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1
THE COURT: I'll receive it subJect to the
objection to its relevance, and I will decide that
after I receive all of the evidence.
2
3
4
5
MR. ZIMMET: Are we going to mark that as
Number 2?
6
THE COURT: It's Number 3. I'll keep your
number.
7
,
,
, ,
8
MS. DOUGALL-SIDES: For the record the Board
, .
,I.'
" '
9
would also reiterate the objection to relevance at
this 'point about the prior decision.
THE COURT: Subject to both objections.
10
11
12 BY MR. ZIMMET:
13
Q Since making your recommendation to the
Planning and Zoning Board, has your opinion with regard
,t ,.---,
\
"'-...-'
14
15 to the recommendation of approval or disapproval of this
16 application changed?
17
A
No.
18
,Q
Is it basically the same reasons?
,19
A
Yes.
20
Q
Have you ,had the opportunity to review the
21 conditions that the Planning and Zoning Board imposed
22 upon this applicant in approving the application?
23
A
I viewed the videotape on the Planning and
) ,
"
24 Zoning Board meeting. I don't recall all of them right
,25 offhand. I haven't seen anything in writing on their
(;)
" :.
I'
. ." "I' '", '. ',..", j' . I ,
51
',~
1 minutes.
2
Q
Let me see if we can talk about the conditions
, "
3 for a minute. One,of the conditions, the first
4 condition, that they were to operate 9:00 a.m. to dusk.
5 Is that something that you see as addressing your safety
6 concerns?
7
A
I think that operating from 9:00 a.m. to dusk
;, .,
,
8 ,inside the pass with the boating traffic, especially on
9 Saturdays and Sundays and holidays, I still feel is a
, "
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10 safety concern.
...:. '
~ ~ . ~
11
Q
The second condition is that -- what they
~i '
12 refer to jet skis, and maybe we should clarify this, jet
I ,
13
skis are a type of persona~ watercraft?
1 .::)
" ~l ~
14
A Yes.
15
Q
Let's talk about personal watercraft.
It says
16 personal watercraft must idle through the no-wake zone.
17 Does this address your concerns with regard to safety?
,18
A
All vessels have to operate at an idle speed
19 within
and, actually, it's not at idle speed zone,
20 it's a minimum wake zone, so they would have to operate
21 without creating a wake.
22
Q
The intent would be that they would use the
23 no-wake zone or minimum-wake zone to get to some other
24 area where they can operate the jet skis or the personal
25 watercraft?
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52
1
A,
Yes, I think the applicant wanted to have the
2 personal watercraft operate from Shephard's and they
3 would operate at minimum-wake speed out to light 6,
4 which is the start of the wake zone on the west side of
5 the pass, and then once they get out beyond that, there
'6 is no wake zone.
7
Q
The third condition is that there is to be one
8 personal watercraft to act as a chase and for
9 emergencies, does that address your safety concerns?
10
A
That's a requirement -- there are currently
11 five other personal watercraft rental operations in the
12 city limits of Clearwater and all of them have chase
13 boats associated with -- when a rental boater gets in
14 trouble or needs some help or whatever, they have a
15 chase boat available.
16
'/
will that prevent accidents from happening?
Q
17
A
I don't think it will.
18
Q
will it reduce the congestion that will be
19 caused by the additional four personal watercrafts if
20 this application is approved?
21 A No.
22 Q The fourth is that they must comply with state
23 law. Does this address your safety concerns for this
24 use in the Clearwater Pass area?
25
Well, it's a standard requirement from any
A
" '
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53
,~
1 rental operator of personal wa~ercrafts that there are
2 state regulations that come into play for them to
3 operate, but that still doesn't in my opinion alleviate
4 our concern.
5
Q
And the fifth one is that buoys must be used
6 to identify the personal watercraft area. Does that
7 address your safety concerns?
:!
8
A
,Well, just about all of the personal
"
" '
"
9 watercraft rental operations have a temporary buoy
10 system set up with a buoy where they rent the boat, so
11 they can come in and know specifically where they have
12 to go in and out. That still does not resolve our
,'~
, "~:.J ,
13 safety concerns.
I
14 Q Is that area, the area that they use to
15 operate the pe~sonal watercraft in or just to get in and,
16 out of the area where they rent them from?
17
A
Just to get in and out.
And then it says, well, the sixth condition is
18
Q
19 they're permitted four personal watercraft and one flats
20 boat. That obviously wouldn't address your safety
21 ,concerns?
22
A
No.
23
Q
Have the conditions in the Clearwater Pass
24 area changed since the 'applications in '89, and '90,
25 were denied?
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A
Yes, there are some conditions that have
1
2 chan~ed. One of the conditions is there is a stronger
3 current in the pass right now because of the closure of
4 Dunedin Pass and there's a stronger current running
5 through Clearwater Pass right now, that's one condition
6 that has changed. Another is the fact that in '90,
7 there was .the draw bridge that was there, that has been
8 replaced with a high level fixed bridge about three or
I,
,.
9 four years ago.
.10
Plus when the new bridge was put in, the
~ . ,
11. channel was moved. The channel was closer to the
i~;;
~ .
j ,T ~I
12 shoreline where Shephard's was currently located in '90,
13 now the navigational is more to the south. Having said
14 that, I will say a lot of the local boaters, in fact,
15 all the commercial boaters that we have at the marina,
16 they know that the old channel still has plenty of water
17 in it, so they actually run outside of the channel
18 closer to Shephard's. But those are the conditions that
19 have changed since '90.
20
Q
How has the new bridge affected boat traffic
21 in that area?
22
A
Well, one of the nice things that's happened
23 is the boaters now don't have to wait for a draw bridge
24 opening. A lot of the boaters aren't funneled right
25 into that particular opening, they can now operate
U"":"
. "
. '
54
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1 basically all across the pass. And here, again, a lot
2 of the local boaters don't stay within the navigational
3 channel, because they know there's plenty of water in
4 the pass, so they will ride to w?erever they want to.
5 So those kind of conditions have changed.
6
Have those conditions increased boating
Q
',.
7 t'raffic in the area?
8
The amount of registered boaters in pinellas
A
9 County has continued to increase.
I think that there
10 will be a continuing increase in boaters in this area.
11 People come here to be on the water, and to use their
12 boats and whatever. Here, again, Clearwater Pass is a
13 way to get out into the gulf. . So I see it as being a
14 continuing increase in boaters in the pass.
15
Is it the city that maintains the Clearwater
Q
16 Pass area?
17
The channel is maintained by the Coast Guard.
A
18 They maintain all those navigational markers. What we
19 do is with the City, we're able to establish ordinances,
20 and with approval from the Coast Guard and mainly the
21 Florida Marine Patrol, we set the wake zone. We
22 currently have a wake zone in Clearwater Pass, the
23 marina channel, throughout Island Estates. And those
24 are all city wake zones that are permitted by the state.
25
This beach area running from the Clearwater
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1 Pass to where Shephard's is, is that a public or ~rivate
2 beach?
3
That's a private beach.
And what kind of uses are in the area from the
A
4
Q
5 bridge to Shephard's?
6
Boating use,?"
No, I mein, land use?
A
7
Q
8
That particular area from the Holiday Inn
A
9
Sunspree all the way over to Shephard's.
The beaches
10 are here, again, they're privately owned by the upland
11 property owner. The uses right now are mainly for
12 swimming and people enjoying the beach. There are
13 ,currently three commercial operations within that area.
14 The Holiday Inn Sunspree has a personal watercraft
15 rental operation. The Quality Inn has a six passenger
16 parasail vessel. And Mr. Conatser has six passenger
17 parasail vessel operating off of Shephard's.
18
I don't think you understood my question.
Q
'19 Between Clearwater Pass and Shephard's is either hotels
20 or condominiums?
21
A
Yes.
22 Q You mentioned that Mr. Conatser has a parasail
23 operation. Do you see a difference between the parasail
24 operation that he runs and his desire to operate
25 personal watercraft 'from a safety standpoint?
'>,
Q
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A
Yes, I do, because a parasail boat is actually
2 operated by Mr. Conatser or one of his captains, which
3 is a licensed captain by the Coast Guard that can go in
4 and pick up six passengers. And what they do is take
5 them out into the gulf or into the harbor to go ahead
6 and. fly them. The difference that I see if you have a
7 licensed Coast Guard Captain operating a boat as opposed.
8 to someone who is, in most cases, a tourist or whatever
'9 operating a vessel that they're not familiar with. So I
10 do see a 'difference.
11
Are you familiar with Aqua Wave Rentals, my
Q
12 client's business?
13
Yes.
A
14
Q
And they rent personal watercrafts; is that
15 correct?
16
Yes, they do.
Are you aware as to whether Aqua Wave Rentals
A
17
Q
18 Personal Watercraft was approved pursuant to the City's
19 Land.Development Code?
20
Yes, it was.
A
21
Was it approved as a, conditional use or was it
Q
I
22 approved ,prior to the conditional use portion of the
23 Code being adopted originally?
24
A
Originally it was approved prior to the Land
25 Development Code.
It was approved prior to the Land
,;
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1 Development Code. And I don't recall whether we had
2 conditional use prior to the Land Development Code.
3 It's been quite a few years ago. To be quite frank, I
.4 don't remember.
5
Q
His business was not approved or his use was
6 not approved in accordance with the standards that' exist
7
today; is that a.fair statement?
A That's correct.
8
9
Q Have there been 'any other conditional use
applications for rental of'personal watercrafts for the
Clea~water Pass area that have been approved?
A
No.
MR. ZIMMET: I don't have anymore questions.
THE COURT:' Cross-examination,
Ms. Dougall-Sides.
CROSS-EXAMINATION
I "
17 BY MS. DOUGALL-SIDES:
18
. "
19
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.20
21 that correct?
Q
You testified that you're the Harbormaster; is
,
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22
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Q
Hi, Mr. Held.
58
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A
Hi.
A
Yes.
23
Q
Could you take a look at what I marked
24 Government Exhibit Number 1, and tell me if you can
25 identify that?
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59
1
Yes, it's a job description for the
A
2 Harbo.rmaster, which by the way, I've re-written.
3
The new one hasn't gone into affect though,
.Q
4 has, it?
5
A
No.
Q
So as far as you know is that. your current,
7
description?
8
it is.
A Yes,
9
MS. DOUGALL-SIDES: I would offer that as
Board Exhibit Number 1.
THE COURT: Without objection. Board's Number
1 is received.
[Board's Exhibit Number 1, Harbormaster Job
Description, received in evidence.]
15 BY MS. DOUGALL-SIDES:
Q
Now, you testified that Mr.' Canatser's
16
17 application came before the Marine Advisory Board. How
18 did that get placed on the agenda?
.19
A
I placed it on.the agenda.
I discussed it
20 with the Chairman, Dave Martin, and we actually set the
.21 . agenda about a week before the Board meets. We notified
.22 Mr. Conatser and other people what would be discussed.
24 Board to consider?
Q
Now, do you normally agenda matters for the
23
25
A
Yes.
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1
Q
Is that one of your functions?
2
Yes, I do. Like, I said earlier, we get
A
3 requests for wake zone, modifications and changes and
4 . different marine related matters that come in, and we
5 have the Board review them.
6
Now, you mentioned you notified Mr. Conatser.
'Q
7
Did you notify the appellant here, Mr. Potthoff, is it?
,
8
A
Yes, I believe he was aware of it, yes.
9 not'exactly sure.
I think he may have stopped by the
office, and I might, have told him it was going to be on
the Marine Advisory Board agenda.
12
Q Are you the staff liaison to the Marine
Advisory Board?
13
14
A Yes, I am.
15
As of May 1998, who would have been your
Q
16 immediate supervisor in city government?
17
A
As of May 1998, my immediate supervisor is the
18 city manager and deputy city manager.
19
Are you considered a department head?
Q
20
A
Yes, I am.
21
Q
Were you directed by the city manager or the
22' deputy city manager to bring this matter to the Marine
23 Advisory Board?
24
A
No, I was not.
25
Were you directed by the city commission?
Q
I'm
60
I. .
61
.~
1
A'
No, I was not.
2
Q
Did you not tell the Marine Advisory Board at
3 its May meeting that you had not received any complaints
4 about Mr. Conatser's parasail business?
5
A
That's correct.
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Q
You do not have a planning or zoning
.;
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7 background or education?
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8
A
Just a marine background, 44 years.
,
'. '
.9
Q
Now, isn't it correct, the City does have some
;.
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10 ordinances which I believe you have mentioned that
11 regulate some boating'activities?
12
A
Yes.
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13
Q
And who enforces those regulations?
The enforcement of our boating related
14
A
16 the pinellas County Sheriff's Department" and the Coast
15 ordinances, we rely on the Florida Marine Patrol, and
17 Guard.
18
Q
So the City has turned over the enforcement of
19 the city code to those other groups?
20
A
Well, what we have is, we have an agreement
I' :
21 with the sheriff's office and the Florida Marine Patrol,
22 and in exchange for us providing them some dockage and
23 some office space, that they in turn enforce our
24 ordinances with relation to wake zones which are all
25 state, ~pproved.
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1
Q
Now, you have not made any ~ecommendations, at
2 least, let's say in the past year, to the City
3 Commission regarding amendments to those ordinances,
4 have you?
5
A
No, I have not.
6
Q
And you have never recommended to the City
,.
7 Commission that they ban jet skis from city waters or
8 that kind of thing?
9
A
Never.
. 10
An~ they have not adopted such a ban, have
Q
11 they?
12
A
NO.
13
Q Can you tell us, just for the'record,
from your knowledge, is it from Dunedin Pass to
how far,
14
15 Clearwater Pass by boat?
16
By boat it is probably 16 miles.
A
17
You stated there were five, aside from
Q
18 Mr. Conatser's proposed operation, there were five jet
19 ski operations in the City currently; is that correct?
20
Ye~, that is correct. The five are -- there's
A
21 three of them that actually have waiver agreements which
22 are approved by the city commission. They are:
23 Frenchy's Rockaway Grill, the Clearwater Beach Hotel,
24 ,and now the Hilton which used to be the Double Tree.
25 Those are three exposed to the gulf. South of
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1 Clearwater Pass there's a Sheraton Sand Key, and then
2 th~ one at the Holiday Inn Sunspree.
3
Q
You mentioned in your testimony regarding the
63
10 marked. Anywhere throughout the pass the depth of water
11 is sufficient where they'can -- so they can use the
4 channel situation that ,boaters cross the channel from
5 side to side. You were referring to all boaters; were
6 you not?
7
A'
I never said the boaters crossed the channel
8 from side to side.
I said they use the channel and
-,
,9 actually operate outside the navigational channel that's
12 whole channel.
13
, 14
'Q When you're referring to the volume of boating
traffic, that includes other ~ypes of boats than just
15 personal watercraft; does it not?
16
17
A
That's correct.
Q
So the boating community out there is made up
18 of different types of vessels?
19
20
21
A
Yes.
Q
Even some sailboats.
MS. DOUGALL-SIDES: No ,further questions.
22 CROSS-EXAMINATION
23 BY MR. SCHUETT:
24
Q
Mr. Held, my name is Clay Schuett. How' you
25 doing today, sir?
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A
Good. How are you?
Good.
I would like to ask you some questions.
3 If I ask you something that sounds like a tricky lawyer
Q
4 question, please, just ask me to rephrase it.
5
MR. ZIMMET: There's a witness and we had
essentially invoked the rule.
[Potential witness leaves the hearing room.]
6
7
8
9
THE COURT: No tricky questions.
MR. SCHUETT: No tricky questions. All right.
10 Thanks.
11 BY MR. SCHUETT:
12'
Q
The first thing you talked about -- I'm going
13 to kind of jump around, not intentional, but your
14 testimony went around it. You talked about wave runners
15 don't have brakes, correct?
16
17
18
19
A
Q
A
Q
Yes.
Boats don't have any brakes either, do they?
That's correct.
You talked about waverunners can do 50' to 60
20 miles an hour, correct?
21
22
A
,Q
23 correct?
2'4
25
Yes.
And boats can even go faster than that,
A
Correct.
Q
Now, your understanding -- I don't know if it
64
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65
~
1 comes within your job description where we're going now.
2 Your understanding is the regulation of motor vehicles
3 is done by the state, correct?
,4
A
Yes.
5 Q When we're talking about regulation of
6 vessels, you know, boats are done by the state, correct?
,
.' '
7
A
Yes.
8
Q
So would you agree with me then that the
'.
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9 decision on whatever the proper safety requirements
J "
10 whether it be for car, a boat, or a wave runner is a
,'11 decision to. be made by the state and by the legislature?
12
A
By the state or the federal government.
o
13
Q
Or the federal government.
I hope the federal
14
government doesn't come down and start telling us about
15 waverunners. But it is a decision that should be
"
16 made
or that is made by them, correct?
17
A
Uh-hum.
18
Q
That's their rule?
19
A
Yeah.
20
Q
The Marine Advisory Boa~d, they don't have any
21 official rules with respect to conditional use permits,
22 do they?
23
A
Their particular position is as an advisory to
24 the city commission.
25
Q
But there's no where in the code where they
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1 are listed as a requirement to go through, are they?
2
A
That's correct.
/. , ~
3
Q
In a sense they're like private citizens, like
4 me or anybody else?
5
A
Just like members of the Planning and Zoning
6 Board, correct.
7
Q
Well, maybe a little bit different.
In this
c.. I
8 process when you file an application for a conditional
9 use permit, he is required to go in front of the
10 Planning and Zoning Board -- the applicant is required
11 to go in front of the Planning and Zoning Board,
I: .
;
12 correct?
13
A
That's correct.
".-J-.....
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'14
Q
The applicant is not required to go in front
15 of the Marine Advisory Board, correct?
16
A
That's right.
17
Q
The Marine Advisory Board can give an opinion
18 to the Planning and Zoning Board, correct?
19
A
They can make a recommendation, yes.
20
Q
But that's just based -- there's nothing
21 official in the Code that says they have to one way or
22 the other?
23
A
That's right,.
Now, you talked about -- and I'm not going to
24
Q
25 go into the job description because quite honestly some
,:)
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67
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1 of the things you talked about in your job aren't in the
2 job description themselves.
3
A
That's why they needed to be rewritten.
4
Q
WeIll right. And I don't want to get into
5 that. You did mention that, you know, some of your
6 duties are marine safety issues, making recommendations
:1 .
7 to, you know, the Planning and Zoning Board, that's not
8 specifically listed in your job description, is it?
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9
A
In the old job description it says other -- if
10 I. remember right, on the bottom portion other tasks that
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11 are assigned, or something, other duties that are
12 assigned.
I believe there's something on the bottom of
13 it.
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15
A
That says what?
Other tasks assigned.
THE COURT:, Other related tasks as required.
1~
.Q
16
17
A
Other related tasks as required. Last
18 sentence in paragraph 2.
19 BY MR. SCHUETT:
20
Q
Let's talk about the wake zone. Let's first
21 kind of describe the area.
I don't believe Mr. Johnston
22 is familiar -- all of us are familiar with Clearwater
23 Pass, I don't believe that the Administrative Law Judge
24 'is.. The pass starts, I guess, technically at the bridge
25 or probably before the bridge. Let's just use the Sand
o
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68
o
1 Key Bridge. Would that be a fair assumption?
2
A
Yes.
,3
Q
It moves west, correct?
" "
4
A
Yes.
5
Q
And now if you were starting from the bridge
,)
6 and f~cing west and as you go by the pass, the first
7 thing you would see is the Holiday Inn Sunspree on the
8 right-hand side, I guess, they call' it the Holiday
9 Inn
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A
Holiday Inn Sunspree. ,
Right.' And that is where, in fact, the
11
Q
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13
A
Yes.
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Q
You move down, then on the right-hand side,
. ,
.,
15 there are hotels and condos on the right-hand side?
16
A
Yes, sir.
17
Q
In fact, on the left-hand side I don't believe
','
18 there 'are any businesses" I mean, there's rocks, but
19 there's no businesses on the left-hand side.
20
A
Left-hand side is Sand Key Park.
'.
iE.
21
Q
Right, Sand Key Park, but there's no
:,
22 businesses. Now, there's a beach that runs
what I
23 call a beach, there's ~and that runs from th~ bridge all
24 the way out to, basically to Shephard'sj is that
25 correct?
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That's correct.
In fact, that sand actually stops, that part
3 of what I call the beach, actually stops right where
2
Q
4 Mr. Conatser actually runs his parasail business; is
5 that not correct?
6
A
That's' correct.
In fact, past that" it's just a jetty, 'correct?
Right.
So there's no beach, in fact, that's not a
10 swimming area in there; is it? If you don't know the
7
Q
8
A
9
Q
11 answer
12
A
A designated swimming area?
Q
That's not a designated swimming area?
13
14
A
That whole beach in there is not a designated
15 swimming area.
16
Q
Now, you talk about a wake zone that has been
17 extended -- that goes out there.
18
19
A
Uh-hum.
20 'approximately starts at about 50 to 75 yards from where
Q
Where that wake zone -- I think, it
21 Mr. Conatser runs his business?
22
It starts and
A
I would say that's true, yes.
23 stops at light 6.
: .
24
Q
At light 6 which is approximately, you know,
69
25 ,to go from Mr. Conatser's location out there is about 50
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1 to 75 yards, correct?
2
Yes.
A
3
Now, to go from the appellant's location we're
Q,
4 talking 500 yards possibly or at least a couple hundred
5 yards?
6
Several hundred yards, if you're talking about
A
7 going to the west, yes.
8
Q
Going to the west, right.
9
A
Yes.
10
Q
Now, that no-wake zone was recently extended;
11 was it not? 1
12
Yes, it was. We had a request from, in fact,
.A
13 Mr. Conatser, who came into the Marine Advisory Board,
14 and asked for us to consider to have the zone extended
1
15 350 yards to the west to light 6. Here, again, this was
16 brought in front of the Marine Advisory Board, like, I
17 do a lot of requests. The Marine Advisory Board
18 endorsed his recommendation, and we contacted the State
.19 and actually moved the zone 350 yards.
20
Q
But that was based on Mr. Conatser coming
21 forward; was it not?
22
,A
Yes.
23
Q
And, in'fact, you said they endorsed -- wasn't
24 there one person on the Marine Advisori Board who did
25 not endorse moving the wake zone? I believe it was
70
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1 Mr. McFarland.
2
A
To tell you the truth, I don't recall.
You don't recall. Well, that's the best
3
Q
"
4 answer to give.
But it was Mr. Conatser that did
5 forward and asked about that?
... ',~
6
Yes" it was.
A
':1'
7
Now, you've obviously, and I believe
Q
~~ ' ';
;
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8' Ms. D'ougall-Sides asked, you've obviously dealt with
9 Mr. Conatser before in the running of his parasail
10 business; is that correct?
11
A'.
Yes.
. ,
12
Q
He's had no citations.
You've n~ver had a
"',:)
13 safety problem with him running his business; is that
14 correct?
15
A
That's correct.
,)
16
One of the things
you've,kind of said, let
Q
. ~ '
17 me make sure I'm correct, that Clearwater Pass in making
18 sure it is safe, you consider that as part of your job,
19 correct?
. '
20 A I consider it part of my job because it's
21 within the city limits of Clearwater, and we establish
,
" '
22 the wake zones --
~\
23
Q
I'm not going to get into any --
24
MR. ZIMMET:
Can we let him finish answering
~ >
25
the question.
o
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11 Mr. Conatser went up for his parasail business,' you
12 said, I want to make sure that you don't open' up your
13 sails or, you know, your parachute before you get out of
14 the pass, right?
A I discussed that with him, yes.
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72
1
THE COURT: You asked him a question. You
need to let him finish his answer.
2
3 BY, MR. SCHUETT:
4
I just wanted to make sure -- I didn't want
Q
5 you to think I was going around trying to trick you or
6 anything~ So that's part of your -- making sure that
7 that pass area is safe is part of your responsibility,
8 correct?
9
A
Yes.
Q
Now, one of the things that you
when
Q That was a big safety concern to you; was it
not?
A That is a concern having the parasailing
operating inside the pass move with all the other
boating activity.
I know that we had discuesed it when
he originally carne in with his
well, let me back up.
Originally, he came in and started a parasail business
off a motel location, I believe, it was Hamden Drive,
from there he came into, asked about getting conditional
use approval to operate the parasail boat from
,
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73
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1 Shephard's.
I think in our conversations we had
I .
2 discussed that.
3 Q
So simply then it is a concern of yours that
well, wasn~t it a part of ' the conditions --
I:.
4 nobody
5 and Mr. Conatser's just obviously handed me a note,
,.'
6 because he went through this -- that, actually, one of
7 the conditions that you requested in front of the
t' "
8 Planning and Zoning Board, because that was one of the
9 conditions of his conditional use permit?
-"
10
MR. ZIMMET: Can I just object on the
11
relevancy. We're not challenging that permit
application. '
THE COURT: What is the relevance?
12
13
!' ~-.)
,
lJ""'to~"
14
MR. SCHUETT: The relevance is, you know, if
15
we're talking about the safety of the pass. And
Mr. Held has come in here and said that that is a
16
17
very important issue to him. And one of the other
safety things he talked about is the parasail going
18
19
up, and there's
20
THE COURT: Only because you asked him the
question. My question is if his application is
about personal watercraft why are we focusing on
parasails?
,21
22
.. .
23
24
MR. SCHUETT:
I was just going down that line
25
just because there is, you know, there is evidence
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that a lot of other people do operate their
2
parasail boat before.
I mean, it's'the opinion
3
that this safety issue isn't as great a concern.
5
6
We've talked about not just watercraft all this
entire time, we've talked about all the other boats
4
that have come in, and that the enforcement out
8
there has not been up to standards. But I'll move
on. That's fine, I mean.
7
9 BY MR~ SCHUETT:
10
Q
I would like to move on to the 1990, I don't
,
11 have the 1989, application in front of me, but I do have
12 the 1990. And that was -- you recommended that that be
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13
denied, correct?
14
A That'~ correct.
Can I say something?
I'm one
; ,
15 member of the city staff that makes recommendations to
I' .
16 the Planning and Zoning Board on conditional use.
17 not like it's my recommendation only.
It's
18
Q
I understand. But you're the one who is here.
19 So that's why the questions are being directed to you.
20 Now, in that 1990, that application wasn't the
21 exact same -- the person applying in 1990, was applying
22 not for the same exact things that Mr. Conatser was? ,
23
A
That's correct.
24
Q
In fact, he was applying for, I believe, ten
25 waverunnerSi is that correct?
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1
A
That's correct.
2
Q
He's also applying for the use of four
3 Catamarans, correct?
,4
That's correct.
A
5
Q
In fact, he had never run any sort of resort
6
business like this before, had he?
7
A That's, what he said at the hearing.
8
Q
He had no experience whether it being
9 parasails or waverunners, correct.
A
Yes.
Q
You mentioned that it's just unsafe to have
'12 him'have these four waverunners out there.
Is it your
13 position that it is unsafe 7 days a week, 24 hours a
,,' .
14 day?
'\
15
A
I think it is unsafe to expand with additional
16 rental boaters in a pass that's heavily used, with a
17 strong current, with people who aren't familiar with
18 personal watercraft. There are times where it's really
19
\
a problem and that's on Saturdays and Sundays --
20
Q
Saturdays and Sundays.
21
A
-- and several holidays.
'You would agree with me that the traffic out
22
Q
23 there on a Saturday compared to the traffic out there on
24 a Wednesday is ex~remely different?
25
Yes.
A
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1
Q
. Why isn't it safe for him to operate something
2 on that day just because of the currents?
3
Well, I think we still have some commercial
A
4 activity there going through with boats, maybe not as
5 heavy as it is on Saturdays and Sundays and Holidays.
6 know when this was discussed with the Marine Advisory
7 Board, I think, that the matter came up, what about
8 during the week as opposed to weekends. And the main
9 concern, and I go on record as saying this before,
10 Saturday, Sundays and federal holidays.
11
Q
So that's your main concern on those days.
12 But your concern when you talk about watercraft and you
13 talk about the statistics is just personal watercraft in
14 general, correct? Is waverunners in general, correct?
15
Well, the thing is that I requested a come-in
A
16 for commercial operations inside the pass other than
17 parasails has been this personal watercraft operation.
18
Right.
But your thoughts on waverunners,
Q
19 would it be fair to say, they apply to whether they're
20 personally owned or whether somebody like Mr. Conatser
21 rents them to somebody?
22
A
Well, the personal owned personal watercraft
~3 are just like any other vessel.
I mean, they are free
24 to use the pass, hopefully, observing the wake zone.
25 And they can operate them, and anchor them and do
76
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77
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1 whatever they can. The ones that are regulated are the
2 rental personal watercraft.
3
Q
And why then, I mean, if you're saying the
why is the pass busy, is it because there's too
4 pass
5 much activity in the pass?
6
A
Well, I don't think -- I can't say there's too
i ~: .
",
7 much acti vi ty, there's a lot of acti vi ty I ,a lot of
8 boating activity inside the pass. And I think by
9 compounding it by having personal watercraft operated by
10 people who rent them, who are not familiar with
11 number one, the renter is not familiar with the boat to
12 be operating inside that pass with a strong current --
c <~"__"'I".
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13
Q
Let me ask you a question.
14
MR~ ZIMMET: Let him finish his answer. He
15
was not done.
16
MR. SCHUETT: I was assuming he was done.
17 BY MR. SCHUETT:
18
Q
Go ahead and finish your answer.
19
A
I think it would be asking for trouble. And
20 that's my own personal opinion after being here for 20
21 plus years.
I think by having additional personal
22 watercraft in that past with a strong current and the
23 boating activity, we're asking for trouble.
24
Q
I guess, my question then is, you said how are
25 these four, because that's what he's asking to bring in,
o
,) ,
;." .
,"
78
8
1 going to make that kind of impact on this area in your
2 opin~on, if you have that many already out there that
3 are unregulated?
4
A
I mean, you're going to have four more that
5 are going to compound the problem in the pass.
I think
16
A
Well, they do get that certification, and they
"
6that's'four more. And here, again, some of the ones
I .
~ ~ ,
.7 that are privately owned that you mentioned, I'm not
8 going to say all of those operators have been through
9 boating safety courses or know the rules of the road.
10 But the rental operators have not been through the rules
11 of the road, and in most cases are not familiar with the
12 boat or the water.
13
Q But if they get an orientation, if that class
set up and they give that, same type of thing, how
Q"'~
~~V
~
.14
is
15 are they any less qualified than personal owners?
17 are talked to by the person who is running the boat. I
18 will tell you that the Sheraton Sand Key came in and
19 they actually received permission for personal
20 watercraft rentals off their location because they're
21 operating in the gulf. The difference that I see is
22 this is inside a pass that has a strong current, where
23 there's a lot of boaters as opposed to somebody who is
24 operating out in the gulf, where you don't have the
25 strong current and you don't have the boating activity
~
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79
1 the pass has.
.2
Q
How many would you estimate -- how many
3 personal watercrafts are out in the pass on a Saturday
4 or Sunday? Just estimate.
5
A
I can't tell. I really have no idea. An
.6 awful lot of them.
I do know that when we talked to the
7 sheriff's office about how many citations they issued
8 for the pass from April '97, through December '97, they
9 had issued, if my memory serves me, it was in the amount
10 of 156 citations, 74 warnings. They said that 80
11 percent of those were to personal watercraft. The
12 sheriff's officer that I talked to said that they could
13 lit~rally sit there and write tickets all day. Now,
14 that isn't to say that they're all personal watercrafts.
15
The industry -- the personal watercraft
16 industry has targeted Florida as the number one target
17 for personal watercrafts.
I would like to say, I'm not
18 against personal watercraft.
I'm against accidents.
19
Well, let's speak about' those two things and
Q
20 then I'm done. You said the tickets -- do you have a
21 break
I mean, all those tickets that you mentioned,
22 would it be fair to say that a majority of them go not
23 to rentals but to people who personally own them?
.24
A
Yes.
25
And you talked about accidents.
In the City
Q
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80
1 of Clearwater, there's only been one accident in the
2 past year; is that not correct? In the City of
3 Clearwater in the Clearwater Pass.
4
What type of accident?
A
5
Q
With a waverunner.
In fact, I'll be real
6 clear about it. There was a personally owned waverunner
7 who was in a -- for lack of a better term, there was one
8 waverunner out there by himself, and that's the only
9 accident that happened in the City; is that not correct?
10
A
Within the last year?
11
Yes.
Q
12
That may be correct.
A
13
Okay.
MR. SCHUETT:
I have nothing further at this
Q
14
15
time.
16
MR. ZIMMET: Brief redirect.
17 REDIRECT EXAMINATION
18 BY MR. ZIMMET:
19
Q
Are you aware of anything in the City Code
20 that provides that any staff member or any other board
21 has the ability to write, or whatever you want to call
22 it, to make a recommendation to the Planning and Zoning
23 Board regarding a conditional use application? If you
24 know.
25
A
To tell you the truth, I'm not sure I can
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81
n
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1 answer that question. Can you ask that question again,
2 please?
3
Q
Let me try to make it simple. Are you aware
,
"
4 of anything in the City Code that says a member of the
5 Planning and Zoning staff is to make a recommendation to
6 the Planning and Zoning Board on a conditional use
7 approval under the City Code?
" .
, .
. ~ ' >
8
A
The Planning and Zoning Board staff make a
, ..
9 recommendation to the Planning and Zoning Board?
10
Q
Right.
THE COURT: That would be a ~atter of law~
If
11
12
there is you can cite it, or you can argue that
,~
. I 1h~~~
13 there was no such thing.
14 BY MR. ZIMMET:
15
Q
I want to clarify one thing you said that the
16 area was not a designated swimming area. This is an
17 area where people swim?
18
A
Yes, it is.
19
Q
And swimming is a legal activity?
20
A
Yes.
21
Q
Your opinion with regard to safety, is that an
22 opinion based upon who the applicant is in this matter?
> '~.,
..",
23
,A
No.
24
MR. ZIMMET: I don't have any more questions.
, '
i....:..
25
THE COURT: Anything else?
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MR. SCHUETT: No.
82
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2
MR. ZIMMET: Thank you, sir.
3
[The witness leaves the hearing room.]
4
I just need like a two-minute
MR. SCHUETT:
5 recess, just to talk with him because he had,
6
indicated to me -- I didn't realize what time it
7
was, if I could just have two minutes to talk to
him. Is that going to be a problem for anybody?
MR. ZIMMET: It's up to him.
8
9
10
MR. SCHUETT: He has come here from a fair
11
amount of distance and has indicated to me that be
12
had a certain amount of time to do some things.
13
And I wanted to talk to him to make sure he was
14
still going to' be here to testify, if not, work
something out with the opposing side.
15
16
THE COURT: All right. Two minutes.
17
[There was a short recess.]
18
THE COURT: You may call your next witness.
19
MR~ CORSMEIER: Call Deputy David Littlejohn.
20
, [The wi tness enters the hearing room.]
21
THE COURT: Would you raise your hand and be
22
sworn. Do you solemnly swear or affirm your
23
testimony at this hearing will be the truth, the
whole truth and nothing but the truth?
24
25
THE WITNESS: I do
:\. .
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t ~ ...
1
DAVID LITTLEJOHN
2 being duly sworn, was examined and testified as follows:
3 DIRECT EXAMINATION
4 BY MR. CORSMEIER:
5
Could you give us your name for the record.
Q
6
David Littlejohn.
A
"
./.
7
How are you employed?
As a marine deputy, pine lIas County Sheriff's
Q
>,
"
8
A
9 Office.
'10
Q
How long have you been a marine deputy?
11
A
Just over two years.
12
'Q
How long have you actually been a deputy?
Deputy sheriff with pinellas County, October
(,
~.. '
13
A
'-......,_.
14 will be three years. Prior to that, I was with Dunedin
\,e
"
.,
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'15 Police Department for 17.
~
! .
Q
So once Dunedin merged, you came over? '
16
17
That's correct.
A
18
Q
Are you're assigned to a unit with the
, "
19 sheriff's office?
20
A Yes, I am.
Q' What unit is that?
A Marine Enforcement Unit.
Q You said you had been in there?
A Two years.
Q Two years. As far as the marine enforcement
21
I .
22
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23
24
25
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Yes, it is.
84
1 unit is concerned, is this area of patrol in Pinellas
. Jj iI'l~;n. 1~ \1t.. t r _ ( 1
2 County?
3
A
4
Q
Does it specifically include Clearwater Pass?
Yes, it does.
Have you patrolled in that area?
Yes, I have.
Do you commonly patrol in that area?
Yes, I do.
Have you had occasion to be in Clearwater Pass
11 and observe the area of Shephard's on the weekend?
Yes, I.have.
What is Shephard's?
Shephard's is a bar and restaurant with live
,)
15 music and recorded music.
Would you say that it becomes congested at any
16
Q
17 time of the week?
Friday evenings, all day Saturday and all day
How about the boats? Does it become congested
Yes, it does.
Q
Does that occur on the weekends?
5
A
A
Yes, it does.
6
Q
Q
In your opinion does that affect the safety of
.7
A
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8
Q
9
A
10
Q
12
A
13
Q
14
A
1'8
A
19 Sunday.
20
Q
21 with boats?
22
A
23
24'
25
()
1 the area in Clearwater Pass the number of boats?
,.
2
A
Oh, most definitely.
They get anchored out
3 there
I've seen five and six boats deep into the
4 pass.
5
Q
Have you seen personal watercraft in that
"
.,.
6 area?
.,
"
7
A
Yes, they kind of work their way in between
.~ ~, '
8 the boats and go up to the beach.
',',
9
Q
Have you issued citations to boaters in that
10 area?
11
A
Yes, I have.
I.
12 Q Have you investigated accidents?
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',,,.....
13 A Specifically, in the past, I have not had to
14 do any. Yes, I did one a couple of months ago.
15
Q
Have you seen the use of the personal
16 watercrafts particularly in the Clearwater Pass area?
17
A
Yes.
18
Q
Have you seen the misuse of the personal
19 watercraft?
20
A
Yes, I have.
Give us some examples of how personal
21
Q
22 watercrafts were misused; if you would.
23
A
Last Sunday two people operating them were
24 intoxicated.
Both of those gentlemen went to jail, they
25 were on watercraft.
Last year, I didn't do the
o
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86
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1 accident, but we had somebody out there jumping wakes,
2 and he was struck by another waverunner and broke his
,
3 leg.
'I"
,.
4 Frequently, I get complaints from the charter
5 boat captains about waverunners jumping their wakes
6 while they're coming back in. Not so much in the
7 swimming areas., Most of the people have been staying
8 out of the swimming areas on the beach.
t ~ .
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9
Q
How about issues of speed when using those
10 personal watercrafts?
11
A
It seems that they like full throttle, pretty
.', ,
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12 much as fast as it can go, 'the happier they are.
13 Q In the area at or near Shephard's on the
," I.
14 weekends, in your opinion is that safe to use a personal
15 watercraft at a higher speed in that area?
16
A
Well, definitely not because of the congestion
17 but it's also still close to the minimum wake area, out
18 and beyond Shephard's.
19
Q
Obviously, it's posted.
20
A
Well, it's in the process of it being properly
21 posted.
22
Q
Are you familiar with personal watercrafts?
23
A
Yes, I am.
24 Q This is a common question that's already been
25 asked. They don't have any brakes, right?
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87
A No, they don't.
Q They're a smaller size craft, right?
A That's correct.
Q' How fast can they go?
A
I'm not sure.
I think they've got competition
ones. But some of the ones we're seeing out there the
1200 CC's probably easily hit 60, 60 to 65, I would
guess.
Q Would the ad~ition of rented personal
watercraft in the area in and around the area of
Shephard's and,Clearwater Pass affect the safety and use
of the area?
A
Hard to say.
It's going to increase volume.
.Any time you increase the volume -- there at Shephard's,
obviously, the weekends, I mean, it's a very packed
I .
area. And personally I'm surprised we don't have more
people getting hurt there.
Q Would there be a greater chance of accidents
if ~dditional personal watercrafts were being operated
by inexperienced operators?
A I think any time you have inexperienced
operators you are increasing your chances of accidents,
irr~gardless of where it's at. A lot of our accidents
that we do investigate are inexperienced operators.
Q Have you noted in your experience whether the
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1 rented vehicles, the rented personal watercrafts,
2 whether there's less experience for those that rent than
. 3 those that own?
4
It's kind of a two-prong question with that.
A
5 You have inexperienced people that we run across and we
6 stop. Obviously, if they're good boaters and good
7 'operators we don't stop them. We don't know anything
8 about them because they're doing what they're suppose to
9 be doing.
10 The craft that we run into problems with are
11 rentals as well as borrowed skis. So you have people
12 that -- and frequently in the past, it's like, nOh, I
13 ,borrowed the ski from somebody." . "Okay. Who is it?"
14 "Well, I just met him." So the people we are stopping
15 -- I can't just say, yes, it's just inexperienced rental
16 people; it's inexperienced people in general whether
17 they are borrowed or rented skis.
18
Q
Did that happen at the Shephard's area where
19, an individual had said that they borrowed them from a
20 friend?
21 A Frequently, yes.
22 Q And they couldn't identify who the friend was?
23 A By first name, "I just met the guy, II type of
24 stuff, "I think his name is this."
25 Q Now, the 'area in and around Shephard's, have
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1 you noted in your patrol of that area that there is
2 drinking in that area?
3
A
Most definitely.
And is it a concern of yours that the folks
4
Q
5 who are drinking at Shephard's might rent these personal
6 watercrafts?
7
That I can't tell you. My concern is people
A
8 have been drinking who are going to get out on
9 watercraft, whether it be boats or personal watercraft.
10 So I can't say whether it would be a rental boat or not.
11 My concern is people drinking on the water'.
12
Q
Because you couldn't predict the future?
13
No, absolutely not.
That's al~ I have. Thank you very much.
A
14
Q
15
CROSS-EXAMINATION
16 MS. DOUGALL-SIDES:
17
Hi, Deputy. You mentioned that you had
Q
18 obs~rved personal watercraft operating around the pass
19 area, correct?
20
A
Yes, I have.
21
Q
Now, when you observed the watercraft as
22 opposed to actually ticketing somebody, ~ouldn't it be
23 fair to say, you can't always tell whether that's a
24 rental watercraft or a privately-owned watercraft?
25
A
Not completely correct. The business that
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operates there next to the bridge, there are several
skis there and they've got numbers on them.
So when I,
tc:
see them, I do know they are rentals because I know what
business 'they come from.
Q So you can actually identify them.
A
I can identify them.
There's a place down on
Sand Key, I found his waverunner floating the other day,
there's no numbers, no business, but I know the guy's
, .
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ski, and I got it back to him.
So I do recognize some
of the rental businesses.
'1.
Q
And you mentioned, I think, the Holiday Inn
~.. ,
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A
Yes, I think it's out of the back of Holiday
..-.....
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Q
Do you recall whether you stopped or given
')
tickets to any of those rentals?
A I have not given anybody tickets, but I have
stopped and talked to him about where the zone is, how
far out to have their customers go before they start,
where 'the minimum wake sign is. Because the direction
;,
, .
they go, it's not clearly posted., So when they can
resume a safe normal operation, I've talked to him about
it.
Q
Now, you mentioned the situation around
Shephard's.
,
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1
A
Yes.
2
Q
Are there not a number of boats or crafts
3 which come up and anchor off shore there?
4
A
Yes, they do.
.5
Q
And then the occupants go on shore and maybe
6 go into the bars; is that correct?
7
Most definitely. Most definitely.
And thinking about the composition of those
A
8
Q
9 crafts are some of them at least power boats as opposed
10 to 'personal watercraft?
11
A
Power boats. About the only thing that I
12 don't see out there' are sailboats. They're power boats
13 or waverunners.
14
Q
And just to clarify. 'you say you have
15 observed people leaving, anchoring off Shephard's and
16 going on shore and going to the bars?
17
18
A
Most definitely.
MS. DOUGALL-SIDES: Nothing further.
19 CROSS-EXAMINATION
.20 BY MR. SCHUETT:
. 21
22
23
Q
How you doing today?
Real good. Thank you.
Good. On this accident you ~aidabout the two
A
Q
24 people who were operating intoxicated.
25
A
Yes.
...--.....
)
1
Q
2
A
3
Q
!
Were those personal owners?
Yes, they were personal.
And some of the other waverunner accidents
4 all those things you see, is it kind of hard to say?
5
'A
Are you talking specifically to Clearwater
6 Pass or John's Pass?
7
Q
8
A
.'
.'.
Clearwater Pass.
Clearwater Pass, the only boating accident I
9 had up there was an actual boat versus a boat.
It
10 wasn't a personal watercraft accident.
11
,Q
But when you talk about ,like waverunners
12 .,jumping wakes, that's both personal and rental or mostly
13 personal?
,
'---
14
A
15
i .
16
A
17
Q
Probably a mix.
Probably a mix.
Yes.
Q
One thing we have talked a lot about
18 Shephard's, and what I want to understand is, are you
19 familiar with the area that, you know, since we've been
\'
,
,20 talking about Sheph~rd'B, where the applicant would be
" 21 running his business out of that Shephard's?
22
23
A
No, I'm not.
Q
Are you familiar with where Clearwater
24 parasail runs their operation?
25
UJ~<O''''
"
Describe the boat for me, and 'I'll tell you.
A
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1
Where there's a big red boat?
The one that says -- the big red boat that's
Q
'2
A
3 got Shephard's on the side and the phone number.
.4
Right.
Q
5
A
It operates on the gulf side of the rock
6 jetty.
7
And is it fair to say it operates west of
. Q
8 Shephard's?
9
.A
Yes, it is'.
Q
And where the ingress -- egress, for lack of a
11 better term, where he goes out is pretty much, you know,
12 we've talked a lot about all these boats coming in and
13 all this -- it's pretty much west of that, he doesn't
14 usually go through much of that; is that not correct?
15
A
. .
Only when it gets real packed at Shephard's
16 there might be one or ,two boats over there.
17
18
19
Q
Might be one or two boats.
A
And usually waverunners might beach there.
Right. But what we've been talking about,
Q
20 what they kind of asked you on direct, and we've been
21 talking about Shephard's is, where he goes out in that
22 area, he doesn't go through all of. those people, does
23 he?
24
A
No, there are two rock jetties that come out
25 from Shephard's. The vast majority of the boats are
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7
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9
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10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
94
right there between the rock jetties, and where he's
talking about the parasail is actually on the west side
of that jetty.
Q So he wouldn't -- I guess, the simplist way
and I've probably asked it three times. He wouldn't
have to with the waverunners, ,if he ran them the same
way he ran out his parasail business, he wouldn't have
to go through all these people?
A
Not through the vast majority, maybe a few
boats on a busy weekend.
Q In fact, are you familiar with sometimes on a
busy weekend how Mr. Conatser works his parasail
business will actually layout buoys to have a safe area?
A I just recently noticed that where he's got
some big orange floats, where he's set that, that's just
something that's recently happened, that I've noticed.
Q Would you think that's pretty safe, you knowJ
would that might cut down safety or you don't know?
A Probably anybody trying to get in there would
foul their props.
there.
It probably would keep them out of
Q Probably keeps them out, okay.
How many wave runners ,would you say are out
there on the weekend on Saturday and Sunday?
A Too many.
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Too many. Hundreds?
Are you talking in the past? Are you talking
3 at Shephard's?
2
A
I'm talking in ~he past, Shephard's.
It's hard to say. They're coming and going.
95
6 There's rental places out on the beach. There's rental
4
Q
I really couldn't give
7 place~ back around the corner.
8 you a number.
.10
11
12
13
14
5
A
Ac lot.
Yes. '
But a lot is a fair thing to say?
There are more power 'boats than waverunners.
Q I guess, the real simple question comes down
not?
18
to and it was asked to you on direct, are the addition
19
20
21
he
9
Q
15 of his boat, his waverunners, his four waverunners --
16
17
A
Q
A
THE COURT: He already answered that; did he
MR. SCHUETT: Okay. Well, he said it was hard
to say, and that's what I was trying to clarify.
If you don't want me -- can I at least ask him if
22
THE COURT: There's just no need for him to
23
repeat what he's already said.
If you think
24
there's something else, there's a reason to try to
25
get something else from the witness.
"', I,
~
3
MR. SCHUETT: No, that's okay.
I have nothing further at this time.
MR. CORSMEIER: Just a couple redirect, if I
could.
1
'2
4
5
REDIRECT EXAMINATION
6 BY~MR. CORSMEIER:
7
Q
Would the addition of one rental personal
r
,
8 watercraft add to the volume of boats and watercraft
.~ .
.,".".
'. " \
9 there?
10
A
Well, simple mathematics, yes. One will add
11 to the volume, obviously.
~
,
12
Q
You talked about Mr. Potthoff, actually, you
13 talked about the whole Clearwater Pass.
..... "-,
,
'~)
14
A
Yes.
15
Q
Has Mr. Potthoff ever had any complaints
16 agains~ his business or have you ever investigated
17 anything related to his business?
18
A
No, he has been cooperative every time I've
19 talked to him or his employees about making sure his
'20 customers go where they're suppose'to go.
21
Q
And the question or comment relating to the
22 boats coming up to Shephard's on both personal
23 watercraft and boats.
24
A
Yes.
25
Q
Shephard's is a bar, right?
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1
A
Yes, it is.
,2
Q
So people would come, you would assume, to
3 drink?
4
A
To drink, and party, and dance, and have a
5 good time.
6
Q
Then they will come back and take their boats
7 back out, correct?
8
A
Unfortunately, correct.
9
Q
And that same thing would hold true if
10 somebody wanted to rent a personal watercraft from
11 Shephard's that had come from that bar, correct?
12
Difficult one to answer, because I would hope
A
13 that whoever was renting it, if somebody was intoxicated
14 they wouldn't allow him to rent it. But I can't tell
15 you what kind of' judgment somebody might have.
Q
And the parasail boat that Mr. Conatser runs,
17 it has Shephard's on the side, correct?
18
19
20
21
22
23
24
25
u
A
That's correct.
MR. CORSMEIER: No further questions.
THE COURT: Nothing further. Thank you. You
are excused.
[The witness leaves the hearing room.]
MR. CORSMEIER: I'll go get the next witness.
[The witness enters the hearing room.]
THE COURT: Would you raise your hand and be
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11
12
13
14
15
16
17
18
98
1
sworn. Do you solemnly swear or affirm your
testimony at this hearing will be the truth, the
whole truth and nothing but the truth?
THE WITNESS: I do.
:2
3
4
5
TERRY L. NOLL
6 being duly sworn, was examined and testified as follows:.
7 DIRECT EXAMINATION
8 BY MR. CORSMEIER:
9
Could you give us your name for the record.
Q
A
Terry L. Noll.
And how is it spelled?
Q
A
Noll, N-Q-L-L.
Q
What is your occupation?
A
I'm a --
THE COURT: I'm from Tallahassee, we spell
that N-O-L-E.
MR. CORSMEIER: Sometimes with an S on it.
A
I'm an employee of the State of Florida
19 Department of Environmental Protection, Division of --
20 actually, the'Bureau of Law Enforcement, more
21 specifically, a Florida Marine Patrol Officer.
22 BY MR. CORSMEIER:
23
24
25
Q
How long have you been so employed?
Approximately 16 years.
You are a patrol officer, correct?
A
Q
",'
~
3
A
I'm now -- I have a collateral duty.
I'm what
99
~ I
. '
.~
1
A
Yes, sir.
2
Q
Do you have another function?
).
4 ,they call the outreach officer or public information
,5 officer.
6
Q
What are your duties? Do you get paid more
"
"
"
7 .for that?
,"
.~ '
8
A
No, it's just another job they give me.
I'm
'..' ., . ~ . '.
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9 sort of a mediator.
I do the press releases every time
.:.
10 there's a major case that we make.
I'm the mediator
11 between the press and the officers in the field doing'
12 the work, you know, boating accidents, that way they can
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13 do their job and the press can do their job and I'll
14 feed them the information.
15
Q.
Going on that theme, you give them information
16 related to the question that they ask you?
17
A
Yes, sir.
18
Q
Is part of that statistical information
19 regarding use of a personal watercraft and also all
20 watercraft?
21
A
All watercraft, yes, sir.
22
Q
Are you familiar with personal watercrafts?
23
A
Yes, sir.
"
24
Q
In your 16 years as a marine patrol officer,
25 have you had an occasion to view and give citations and
"0
,)
100
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1 examine personal watercrafts?
2
A
Yes, I have, and I've never ridden one.
3
Q
Never ridden one, that's interest~ng. Have
.:\
4 you seen i'n your patrol capacity, seen the use and,'
5 misuse of personal watercraft on the water?
6
A
Yes, I have.
7
Q
What are the ways that this personal
.l.
8 watercraft may be misused?
~i' ,
9
A
The intentional jumping of boat wakes,
"
~':
10 excessive speed in restricted areas, just a number of
11 ways, the erratic moves.
....
12
Q
Drinking
Drinking and boating, yes.
()
13
A
14
Q
Are they more or less dangerou~ than larger
15 watercraft?
1.6
A
The fact of their maneuverability they do a
17 few more things that bigger boats really can't do.
18 Therefore, they account for more accidents than bigger
19 boats.
20
Q
What, about the safety of the person or persons
21 on ,the boat on the personal watercraft itself?
22
A
Well, tt's a smaller vessel.
If it collides
,Ie
23 with a bigger vessel or fixed object, it's easier to be
24 injured. But in their 'favor, they are required by law
25 to wear their life jacket at all times.
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101
How about the safety ,of personal watercraft in
2 an area that may be congested with larger boats. Does
3 it increase or decrease safety?
4
A
Well, again, that depends on the operators.
Would the number of boats affect safety?
Absolutely.
About whether it's in the channel or open
The channel is going to put the boats closer
10 together. As to open waters, they still find each other
11 and hit each other.
5
Q
Right. Do you have a document or a booklet
Yes, sir.
Can you tell the Administrative Law Judge what
24 percentage of boating accidents in here. And th~se are
6
A
25 all of the accidents that have been reported to the
7
Q
8 water?
9
A
12
Q
with you?
A
Q
that is?
A
13
14
15
16
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18
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20
21
22
23
24
25
"
102
1 State'.
2
Are you familiar with the statistics in that
Q
3 book?
4
Yes, sir. I've used them quite often.
A
5
Let's talk about those.
Q
6
MR. CORSMEIER: I have an exhibit that is a
7
copy of the version of the statistics. I'll be
referrin~ to it. If I could, just maybe move it
into evidence.
':
8
9
MR. SCHUETT: I will be willing to stipulate.
THE COURT: Yes.
MR. CORSMEIER: We will be talking about
specific statistics. It's been pre-marked as
Exhibit --
MR. SCHUETT: I don't know about
Ms. Dougall-Sides.
MR. CORSMEIER: I'll get you copies of it.
What I would like to do is consider that to be
a separate exhibit, if I could.
THE COURT: The Appellant's A.
MR. ZIMMET: I think excerpts of these were
attached to Mr. Held's memo.
THE COURT: That's what I remember seeing.
There may be some more to this, I'll receive it as
an additional exhibit, without objection,
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103
Exhibit A.
[Appellant's Exhibit A, Statistics, received.]
MR. CORSMEIER: And I believe that Mr. Held
obtained his statistics from the internet, which I
believe tracks the same report, it's just out of
the computer.
BY MR. CORSMEIER:
Q Let's turn to the statistics, if; we could, on
Page 6, of the report, it's part of the exhibit. What
8
9
10 is the total number of watercrafts registered in Florida
I:
11 as of 1997?
r
..
I'
12
A
For '97, there's 755,278 registered vessels in
13 the State of Florida. That number does not include all
,~
',....../14 of the boats that are brought into the State from our
15 guests.
'J
16
17
i'.
18
Q
A
19 Florida?
Q
20
"
. 21
A
Q
Those are registered by Florida residents.
Yes.
So those are registered in the State of
By registered individuals, yes, sir.
And. the total number of personal watercrafts
22 registered in Florida, personal watercraft, look at Page
23 34.
25
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"
24
A
Q
Total personal watercraft 70,606.
What. percentage? Page 37, explains it's a
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104
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1 little under 10 percent. But I would prefer to give the
2 exact percentage on Page 37.
3
A
Yes, sir. Of the total boats that's 9.3
4 percent of the registered boats in the State of Florida.
5
Q
Now let's turn to Page 6, again, total number
" ,
6 of reported accidents for all watercraft for 1997, and
7 these statistics go from '92, to '97, they're graphs,
8 they include all of these years, correct?
9
A
Yes, sir.
;'.
10
Q
How many total accidents were there in '97,
11 reported?
12
A
There were 1251 accidents.
,.-.,
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13
Q
Now, when you go to take Page 37, to determine
14 the total number of accidents which involved personal
15 watercraft--
16
A
Of the 1251 accidents?
17
Q
Yes.
18
A
451 of them or 36.1 percent for personal
19 watercraft.
20
Q
So the statistics show that 9.3 percent of the
21 watercrafts were
total watercraft were involved in
22 31.6 percent of the accidents?
23
A
Yes, sir.
24
Q
Let's talk about injuries. Go to Page 34, of
25 the report. What are the total injuries for all
o~
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105
")
. 1 wat~rcraft?
2
A
For all watercraft 754.
3
Q
Now go to Page 38, what are the totals? The
4 reason I'm excerpting is because, I believe, it's harder
5 to go through each page, and it's about a 60-page
6 report, isn't it?
;, ~
7
A
Yes, sir.
',' J
. .
8
Q
Okay.
9
A
Personal watercraft recreational accidents for
10 '97; were 451.
11
Q
Now, according to the statistics, what
.,.~
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12 percentage of all injuries from boating accidents
'13 involve personal watercraft? Is it approximately
I '
,
14 50 percent, close to 60 percent, if you look at the
15 statistics?
16
A
Let me see.
17
Q
If you look at the injury statistics on Page
18 38,. it's actually 367, you said 451, I believe.
19
A
Your personal watercraft, recreational 451
20 accidents; there are 357 injuries, yes.
21
Q
Now, if you look on Page 41, which is the last
:,':
,
22 page of my exhibit, and you can look in your book
23 shows the most common types of accidents. What's the
{,
24 most common type on the very top of the page?
25
A
I
Collision with other vessels.
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106
1.
Now, you've been a marine patrol officer for
Q
2 you said 16 years, does your personal experience purport
3 with these statistics that we are talking. about roughly?
4
Yes, sir.
A
5
Now, have you had occasion to personally
Q
. 6 observe the area in and around Clearwater Pass near
7 Shephard's on the weekends?
8
Yes, sir, I have. A few years ago, but yes,
A
9 sir.
10
Q
On the weekends have you noted any congestion
11 in that area?
12
Yes, sir.
A
13
Q
Have you noted the number of boats that are in
"._0- 14 and around that area?
o
'18
15
Yes, sir, there are several boats in the area.
A
16
Have you noticed personal watercrafts?
Q
17
A
Yes, sir.
Q
In your opinion, would the addition of
19 personal watercrafts, rented personal watercrafts in
20 that area, in and around that area, affect the safety of
21 the pass?
22
Any time you put any type of boat in that
A
23 area, or any area like 'that, another boat is another
24 part of the congestion.
25
What about your personal experience with
Q
"
7 is now available to anybody who wants to buy it.
The
107
~
,
1 rented versus owned persona~ watercraft? Or owned
2 watercraft, is it'more of a chance that those would be
3 experienced or 'inexperienced watercraft operators?
4
A
Privately owned, as long as it's the owner,
.. '
5 .when they buy ,a personal watercraft from a dealer, they
6 get a. training film and so on. And, in fact, that film
8 person who borrows it or rents one, at least when they
9 rent one, under new law that has come out, they're
10 supposed to get some hands-on training.
11
Q
But currently is there any hands-on training?
12
A
No, that's new.
It just came out.
13
Q So it would really depend on the operator as
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14
to whether there would be any hands-on training, there's
15
no legal requirement of any by the owner to the renter?
16
A
No.
17
Q
And I don't know if we made this clear, but
18 would there be more of a chance of injury in an accident
19 with a personal watercraft because of the size, there's
-,
20 less protection for the users?
I.
21
A
A fair comparison would be a car versus a
22 motorcycle. A power boat versus a personal watercraft.
23
Q
And there's a fair amount of big boats in the
24 area?
25
A
Big boats are everywhere.
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2
108
That's all I have. Thank you.
CROSS-EXAMINATION
3 BY MS. DOUGALL-SIDES:
: .
4
Q
Officer, isn't it correct that there are some
5 Florida Statute provisions regulating the operation of
. .
6 the personal watercraft?
7
A
, .
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8
Q
Yes, ma'am.
And don',t Florida statutes prohibit weaving
9 through congested vessel traffic?
. 10
A
J.1
Q
,I
Yes, mal am.
And jumping the wakes of another vessel
12 unreasonably or unnecessarily close to such other
13 vessel?
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14
A
15
Q
Absolutely.
Or when visibility around the other vessels is
16 obstructed, jumping wakes.
17
A
18
Q
Yes, ma'am.
And nobody has prohibited swerving at the last'
J.9 possible moment to avoid collision.
:'
20
A
21
22
A
23
24 under 14.
25
o
You're talking about Paragraph 4.
Q
That's correct.
I've used it once or twice.
Q
And do the statutes also prohibit per~ons
A
No one under the age of J.4 may operate a
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109
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1 personal watercraft. There is also the better education
".
2 law that requires anyone 'born since September 30, 1980,
,3 to show proof that they've taken and passed the better
4 education course to operate any type of vessel, ten
5 horsepower or greater.
. .
C'
6
Q
So that covers any type of vessel?
7
A
Any type of vessel.
8
Q
Including personal watercraft?
9
A
Yes, ma'am.
10
Q
Does that mean the younger members of society
11 will have to take that course to operate a personal
12 watercraft?
13
A Anyone will have to. By the year 2001, that
I
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14
law i~ going to increase one year for every year until
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the year 2,001, or at that time you're either going to
"
16 have be 22 years of age to operate a boat, or you're
. 17 going to have take a boater's education course by law.
18 Does that mean everyone will?
.19
MS. DOUGALL-SIDES: No further questions~
20 CROSS-EXAMINATION
21 BY MR. SCHUETT:
22
Q
Just a couple of questions.
I know this first
23 one's going to sound kind of out of there. Should we
24 ban all personal watercraft?
25
A
No.
It's not the watercraft itself that's
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110
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1 inherently dangerous.
It's how it is used, you know.
2 The comparison that I've heard used several times is,
3 you know, we have the laws that say you can and can't do
4 this, but people do it. But the best comparison is a
5 Corvette is made to run 150 miles an hour. We don't
6 allow that. There are about 350 officers state-wide for
7 marine patrol to en~orce these laws.
l,C.
Q
So if, somebody is trained, then they should be
8
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9 able to use a personal watercraft, correct?
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As long as they meet the age requirements.
A
11 And if even one followed the guidelines, accidents would
L'I'"
12 be greatly reduced.
13
Q
And you wouldn't have a job.
14
A
I know, it's job security.
15
Q,
Your job security would go down. You talked
16 about when somebody buys a personal watercraft, they get
17 a video, right?
18 A Yes, sir.
19 Q Doesn't necessarily mean they watch it though?
20 A Absolutely.
21 Q If I just go buy one, they'll give me a video,
22 but I don't have to go through any other course; is that
23 correct?
24
A
Not at your age, no, sir.
25
Q
Not at my age. But, on the other hand, if
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1 somebody was renting them and you said the law is now
2 g~ing to require, getting ready to require that they do
'3 give them a course, right?
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A
They give them some hands-on experience,
.:,.
5 explain that when you let off the throttle you have no
6 steering, that this is how you steer the vessel.
Y. .
; ,
7
Q
So there will at least be some training?
There will be some training.
And then, obviously, like any other law, the
8
A
9
Q
.', .
10 operator, the renter can go above that and give out
'11 more; can he not?
(.
12
A
That would be greatly recommended and maybe'
13
even reduce his liability.
'. '.::)
14
Q Right, because there's a financial interest
'.
15
that he has?
. 1.l'
16
A
Yes, sir.
17
Q
So your only concern is the people that
18 operate it?
19
A
Yes, sir.
20
Q
And would it be fair to say that the people
21 who rent them are anymore dangerous than people that
22 don't rent them and own them; is that correct?
"
23
A
If you're asking an opinion, I don't know what
'. '
),
24 it is about personal watercraft, but you get on the
25 vessel, and I've seen it done, I've seen officers do it,
~
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1 but in controlled areas where there is no other access,
112
" ,
2 where we were learning familiarity with -- I don't know
3 if it's something that's absorbed through the hand or
4 something you sit on.
5
Q
I used to be a tanker; ,it's a power thing.
. .
','
6
A,
It is, okay.
I think the smallest vessel now
7 has 80. Horsepower, they're now up to 120 horsepower on
,
~.
8 a 9-foot boat.
t" ,
9
Q
But your concern is making sure that whoever
10 gets on and off of there --
11
A
does so in a reasonable and prudent matter.
12
Q
In a reasonable and, prudent matter. As the
13
law requires.
~~
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14
A That's it.
15
Q
And you can't say that whether it's a rental
16 or somebody owns it, you can't honestly say who is going
17 to operate more safely.
18
A
Or how ~heY're going to operate.
19 Statistically, I think the rented jet skis have a higher
'20 percentage of accidents over the owners, but I'm not
21 sure. I'll look it up.
22 Q Okay.
23 A This book as was said carries a lot of
24 different information. Not rented is 81 percent.
25 Rented is 19 percent. Now, the problem that carries
u
i~
1 with this, you have a jet ski.
I borrow it from you.' I
113
, .,
,I
2 didn't pay you money for it. You know, the rental
3 statistic-wise shows that there's fewer, but there's
4 fewer rental businesses than people that privately own
5 them.
,., .
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Q
,I understand. The reason why, obviously, I'm
'"
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7 asking is because I have someone who wants to rent
1:'1
"".
8 rental boats. So when we're talking about other
9 statistics I understand where you're coming from with
10 your job.
11
A
Yes.
12
MR. SCHUETT:
I have nothing further.
13
THE COURT: Any redirect?
MR. CORSMEIER: No, sir.
:-""'
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14,
15
Thank you, officer.
16
THE COURT: You may be excused.
[The witness leaves the hearing room.]
17
18
THE COURT: Call your next witness.
19
[The witness enters the hearing room.]
.'
20
21
THE COURT: Would you raise your hand and be
sworn. Do you solemnly swear or affirm your
23
testimony at this hearing will be the truth, the
'whole truth and nothing but the truth?
22
24
THE WITNESS: I do
25
GERALD FIGURSKI, ESQUIRE
(.)
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114
1 being duly sworn, was examined and testified as follows:
2
DIRECT EXAMINATION
3 BY MR. SCHUETT:
4
Q
How you doing there, Mr. Figurski?
5
A
Good, sir.
6
Q
Good.
I take it you've already given your
7 full name to the court reporter.
8
Yes, sir.
A
9
Q
Could you please let the Administrative Law
10 Judge know a little bit about your background.
11 why you have to leave early today.
In fact,
12
I have to leave today because I'm
A
13
President-elect of the Clearwater Bar Association, and
14
there's a meeting at four o'clock that I'm supposed to
15 chair in the absence of the president, who is on
16 vacatioll.
I'm hoping that Mr. zimmet will be nice to me
17 so that I can vacate the premises quickly.
18
Q
Give us some of your professional background.
19
I'm an attorney. I've got a bachelors and a
A
20 ,masters from Kent State in Ohio in 1966 and 1969. I
21 taught for Kent State for five years. My degrees were
22 in political science and history; masters in political
23 science.
I've 'taught American National Government, and
24 State Government courses, things of that nature. I
2S decided to go to law school primarily because of Kent
, ' 1 ,':'. < . ,"... " . , I . .~. ....: .
115
,~
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1 State.
It was the first year I taught for Kent that I
2 went to the University of Akron.
I graduated in 1974.
~.' ;
3 My maste~s was -- the primary emphasis in my masters
4 program was planning, studied under a guy name Dr. Jim
5 Coak at Kent State at Evan Research Center, who prior to
6 coming to Kent had been executive director of the
7 Philadelphia Regional Planning Commission.
! '
8
My first year of practice, I practiced in
9 Mason, Ohio, Star County, Ohio, in the location of the
10 Pro Football Hall of Fame.
I was a police prosecutor
11 and assistant city solicitor. So, during the first year
I' .
12 that I practiced, I was working for the City of Mason,
,'~).~
....
13 Ohio.
14 I came to Florida in September of 1975. I was
"
15 an assistant county attorney for Pinellas County. Among
1~ my primary responsibilities were working with planning
17 and zoning. And I also served as the attorney for the
18 board of zoning adjustment, which is the kind of board
19 I'm really sitting on now as a citizen.
20
I become Pasco County Attorney in 1978, ,held
21 that position until August of 1982. When I started
22 there, there was me and one assistant, the office
23 subsequently grew. But in the very beginning I sat
24 well, all the way through those four years, I sat with
25 the Board of County Commissioners on all their zoning
U'"
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1 considerations. And also in the beginning, I worked
2 with the Board of Zoning Adjustment and Planning
3 Commis~ion in county.
116
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4 Defended the zoning ordinance in Pasco County,
J.e: :-
5 defended the subdivision ordinance, both of which have
6 just been adopted with the second District Court of
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7 Appeal.
8
I went into private practice in 1982.
I call
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9 myself a local government or law attorney like
,10 Mr. Zimmet, and primarily represent clients before
11 zoning and planning and boards of that nature, other
12 than in the 'City of Clearwater where I sit on the
13 Planning and Zoning Board.
.'1": '
, I~~
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14 For the City, I volunteered in two ways.
I
15 was chairman of the Charter Review Commission of the
! .
16 City in 1994, which is every five years was a periodic
17 ~eview of the City Charter.
II
18
And, then, I've been on -- I'm not surd
'I",
19 whether I!ve been on the zoning board here a year and a
20 half or two years, but I think it's a year and a half.
21 And I'm now the vice chairman of the Planning and zoning
22 Board.
23
Q
Thank you. A lot of testimony has come
. r :
24 forward today about personal watercrafts and about the
25 Clearwater Pass. Could you kind of explain what you
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1
believe
is
the Planning and Zoning Board's decision
117
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2 making authority of what factors -- not just the factors
3 within the statute, but what their purpose is?
" .
4
MR. ZIMMET: I'm going to object.
I think the
i' , .
6
purpose of the statute is established by code not
by what Mr. Figurski thinks their purpose is.
5
7.
THE COURT:
It would seem to be a matter of
I,
;~~~ ": . ".
8
law.
9 BY MR. SCHUETT:
< .
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,I. <
10
Q
With respect to this decision that came
',,: .
11 forward, obviously, did you sit through the hearing?
,\ >
12
A
Yes, sir.
13
Q Was all of the evidence that personal
"3
. :,l ,. .
, .
14
watercraft was dangerous, was that all presente~eto
15 you-all?
16
MR. ZIMMET:
I'm going to object to the
17
question.
First of all, it's leading. Second of
18
all, how do we' know if all of the evidence that was
19
considered dangerous and was presented?
,', .
20
THE COURT: He wouldn't.
21 BY MR. SCHUETT:
22
Q
Well,'was the evidence before you about the
23 danger of personal watercraft?
24
'A
Yes.
25
Q
What did you feel, when you personally
o
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1 listened to that? What was the response? What were the
2 factor~ in your mind when you were analyzing this
3 situation and the evidence presented before you?
,4
A
Speaking for myself, what had been presented
5 was a letter from the Harbormaster, Mr. Held, which we
6 actually took a recess in order to review. And then
7 there was some discussion and no one appeared on behalf
8 of the Harbormaster. He was not there. He was not able
9 to be there. And I guess the Assistant Harbormaster
10 also could not be there.
11 So what we had in front of us was his letter,
12 along then with copies of information that related to
13 citations and warnings that had been issued by various
14 law enforcement officials in and around that area in the
15 harbor.
16
The citizens who appeared also raised the
17 issue of the danger of personal watercrafts. And, I
18 guess, the issue, at least from my perspective that was
19 before us, was in dealing with a conditional use in some
20 areas called a ~pecial exception. There are, you know,
21 a special exception or conditional use, which is what
,22 the City of Clearwater calls it, which says, basically,
23 that if this conditional use for this activity of
24 personal watercraft is a permitted use if certain
25 conditions are met.
. , .. L~ _ ,. '. ~ ~ ~ I. , .
118
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1
So the challenge to me as a member of that
.,'
2 board is to look at the conditions that are set forth in
3 the ~rdinance, and go through them and determine whether
4 each one of those are met.
5
The standard, as I understand it, that we are
6 to follow is whether or not -- where does the
. .,
, .'
7 . substantial competent evidence lie. And in this
8 particular case after listening to all of the evidence
9 that was presented by Mr. Johnson and by his client, as
10 well as by the citizens, and in reviewing the materials
11 that Mr. Held had drafted and sent through the staff to
12 us, that seemed clearly that the substantial competent
,~
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13 evidence was on the side of granting the conditional
14 use.
15
16
Did you consider safety?
Did I personally consider it? Yes.
If you
Q
A
17 look at the tape, the audiotape or videotape, we also
,18 looked at the minutes.
It was an issue that we
19 discussed. Mr. Johnson on behalf of the applicant made
20 the point that safety was not a factor. And I carried
21 on a little bit of an academic discussion with him as to
22 whether or not safety was included.
23 With all zoning, it's all based on the health,
"
24 safety and welfare of the public, and that's the
25 overriding concern. And there is a prior condition that
o
119
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1 mentions the word "welfare." So, if you take all of
2 that, you know, if you can look at it from that
3 perspective.
I kept saying, ltMr. Johnson, I think
4 s~fety may very well be an element." But I wasn't there
5 as a lawyer. That's something for the lawyers to argue
6
out.
I try not to do that when I sit there.
I did
7
consider it. And came to the conclusion that the
.8
addition of four waverunners or jet skis and a flats
boat that would carry three individuals was okay within
the context of what was going on.
9
10
11
MR. SCHUETT:, I have nothing further.
12
DIRECT EXAMINATION
13
BY MS. DOUGALL-SIDES:
14
Q Mr. Figurski, did you consider whether the
"
15 :proposed use was compatible with the surrounding' land
'17
16 used?
A
Yes.
18
What was your conclusion in that regard?
The conclusion was that it was.
Q
19
A
20
Why is that?
You're basically dealing with a beach
Q
21
A
22 community. You're right there on the water. That's
23 what. you expect to have there. There is an exis~ing
24 waverunner or jet ski operation there. There's ,two
25 parasail operations.
It's a public area. That's what
121
a
1 you expect to see. There's condos in the area, I know,
2 but my basic attitude is that it's clearly compatible.
3
More important than anything else, the land
. .
4 use designation says it's compatible. The zoning that's
5 ,in the area says it is compatible, and looking at it as
6 a physical matter, it is compatible.
7 Q You mentioned some members of the public had
'.,
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8 appeared. Do you recall residents of Continental Towers
9 appearing before you?
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. 10
A
I'm not sure which one it was.
It was 40 West
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11 or West 40. But, yes, there was a group of individuals
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12 there from the condos?
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13 . Q
Did you as a board member consider their
14 input?
15
A
Yes.
16
Q
What was their conclusion with regard to the
17 their comments?
18
A
To a certain extent, I think somewhat of a lay
,"
19, opinion,' but more important I just think that the
20 evidence that they presented was not of a nature that
21 would cause ,me to conclude that the application should
22 not be granted.
I think clearly substantial competent
.23' evidence which is the standard in these kinds of matters
24 was on.the side of the applicant.
25
MS. DOUGALL-SIDES: Nothing further.
o
. ,,+
122
.~~
, "
....1...
1 CROSS-EXAMINATION
"
2 BY MR. ZIMMET:
3
Q
Mr. Figurski, actually, you can only speak.for
4 yo~rself, right?
5
A
Yes, sir, the minutes are the best evidence.
6
Q
How many members of the Planning and Zoning
'7 Board are there?
..
8
A
There are seven.
9
Q
So there's six other people that voted?
10
A
Yes.
11
Q
Actually, you weren't inside their heads, and
12 other than what they may have spoke and said something,
13
you don't know what the others were thinking.
A No, I do not. And, again, the best evidence
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14
15 is the minutes of the meeting.
'i
16
Q
Would you agree with me that Mr. Johnson
17 advised the Board that safety was not an issue for them
18 to consider?
19
A
That was his position, yes. He said it was
, !
20 not one of the listed items in the general conditions or
21 supplemental conditions in the ordinance.
22
Q
Isn't it true, that he told the Board that
23 they couldn't even consider safety?
24
A
Tim Johnson says a lot of things. He did say
25 that also.
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1
Isn't it also true, that the assistant city
Q .
2 attorney was at the meeting and indicated that safety
3
was not one of the criteria in the City Code?
A I would ask the hearing officer to rely on the
4
5
minutes of the meeting.
I somewhere remember
Ms. Dougall-Sides referencing the fact that safety may
7 very well be a consideration. My memory is that she
8 made that comment. That was after I was making some
9 comments and arguing with Mr. Johnson about whether or
10 not safety can be a consideration within a broad degree
11 of health, safety and welfare.
12
Q
You would rely upon the tape of ~he meeting as
13 to what they were advised by the assistant state
14 attorney?
'15
Yes, sir.
I might add to that, I can't tell
A
16 what was In the mind of everybody. But just in terms of
17 listening to the discussion, safety was thrown around.
18 And I don't believe anybody on that Board truly believed
19 that this would cause safety problems.
20
21
22
23
24
Q
Do you own a boat?
A
No, sir.
Q
Have you ever owned a personal watercraft?
A
No, sir. My in-law's have, but I have not.
'Q
Do you know how.fast a personal watercraft can
25 go?
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A
No.
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2
You're not an expert in boating safety, are
Q
3 you?
4
A
No, sir.
5
Q
When was the last time you were in Clearwater
6 Pass on a boat?
.7
Probably a good 10 or 15 years ago, when my
A
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8 brother-in-law got a boat stuck on a sand bar somewhere
9 that's near that pass.
....
"
Q
Now, you made a comment that the zoning and
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11 land use say this is ,compatible, this use is compatible
12 with this area, correct, is that what you said?
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Yes.
A
14
Q
But yet the code makes it a conditional use?
15
Yes, sir.
A
'.1
And makes compatibility one of the criteria to
16
Q
17 be considered by the Planning and Zoning Board; is that
18 correct?
19
Yes.
A
20
Are you telling us that you take from the
Q
.:
21 zoning code and the land use designation, that you are
22 obligated to find that the conditional use is
23 compatible?
'24
A
No. What I'm saying is that, you know, it is
25 set within that category. And it's saying that if you
.
124
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1 meet these conditions, if you meet the conditions that
2 are set forth in the ordinance, that conditional use is
3 a permitted use in that district.
4 SO" you know, when I think about
5 compatibility, I think about the fact by the city
6 commission that said that this area is land zoned,
7 land-use zoned for resorts and commercial recreational
8 activity. The zone category is that.
9
And I looked at those conditions to see if --
10 I'm not saying it is automatic.
, '
I'm just saying that
11 the law says that that use can fit in there, if you meet
12
those conditions.
,13
Q In other words, the bottom line is what the
code is indicating that this may be compatible, this may
14
15 be permitted there, if the Planning and Zoning Board
16 reviewing this criteria, and 'this Judge in the appellate
17 process provided by the Code agrees with the Planning
18 and Zoning Board's decision?
19
Yes. What I'm really saying, Alan, it is
A
20 something more than just going in and getting a brand
21 new zoning for a piece of property.
It is saying these
22 are area permitted uses. These are the conditional
23 uses. And if these standards are met, it becomes a
24 permitted use within that district.
25
I don't have anymore questions.
MR. ZIMMET:
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THE COURT: Any redirect?
MR. SCHUETT: No redirect. Thank you very
much, Mr. Figurski.
[The witness leaves the hearing room. ]
MR. ZIMMET: We have the two secti.ons of the
Code that we had, I don't know if you considered
them as exhibits or what.
THE COURT: I think that what I've done, I've
officially recognized them as a way to get them in
front of me.
MR. ZIMMET: We've got certified copies of
those' .
THE COURT: Ms. Dougall-Sides may also have.
Are you submitting a set of certified copies,
also?
MS. DOUGALL-SIDES: Yes, I am.
MR. ZIMMET: Of the Code?
MS. DOUGALL-SIDES: Some sections of it.
Which do you have?
MR. ZIMMET: The ones we have are 35.04 and
41.033.
MS. DOUGALL-SIDES:
I don't have 35.04.
THE COURT: If you want to we can do that at
this time, or you can just list off what you want
me to officially recognize and submit them, and I
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127
o
1
wili take them now.
2
MR. CORSMEIER: We've pre-marked them as
-:"
3
Exhibit 2, so.
4
MR. ZIMMET: Is that one part of yours? I can
5
submit it as part of yours or however you want.
doesn't matter to me as long as you have them
available.
It
6
7
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8
9
THE COURT: For the record, the parties are
agreeing to submit to certain ex.cerpts from the
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10
Code for my official recognition. And if you would
list them for the record.
11
12
MS. DOUGALL-SIDES: Section 2.068, Staff
~.,", .
13'
Members and Other Exponential Members. Section
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14
2.196 through 2.199, Marine Advisory Board.
Section 33.001, ,Authority of City to Regulate
Waterways. ' And 33.002, Definition. Those are both
on the same page. Section 33.051 to 33.121, which
are the regulatory portions of the waterways and
vessels chapter. And, I guess, I did have 35.04,
Purposes of'Land Development Code. And on the same
page, 35.05, Objectives. Section 35.11,
Definitions. 36.033, Planning and Zoning Board.
36.036, Hearing Officer. And on the same page,
36.065, Appeals. Section 36.081 through on 36.082,
,
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15
16
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17
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20
21
22
23
24
25
Publication of Notice and Mailing of Notice.
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128
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1
40.401 through 40.406, which is the Zoning District
2
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Resort Commercial 28, Zoning Provisions. Finally,
from the Conditional Use Chapter, 41.021 through
) '.
4
41.053.
5
And I would direct your attention to three
[. .
6
7
sections contained in the Standards for Approval,
that's in Section 41.033, Section 41.052, and
, .
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8
Section 41.053(21).
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9
THE COURT:
I will take official recognition
10
,,' .
11
of those records.
MR. ZIMMET: Do we have an exhibit number for
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12
that, or how do you want us to do that?
THE COURT: I'm just officially recognizing
those provisions. And the record will reflect ,that
they have been presented to me, certified copies
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have been presented, they bear their own
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17
identification.
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18
MR. ZIMMET: We may just refer to them when we
19
do our written brief as written summaries by
~'; '.; "
20
section, right?
21
THE COURT: Correct.
':
22
MR. CORSMEIER: We're ready with the next
23
witness. Judge, we have some photographs that he's
24
going to identify.. I'll just give copies to
25
counsel.
(' '~'1
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1
THE COURT: Would you raise your hand and be
(~
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2
sworn. 00 you solemnly swear or affirm your
3
testimony at' this hearing will be the truth, the
whole truth and nothing but the truth?
4
5
THE WITNESS: r do.
I,' ,
6
ROBERT G. POTTHOFF
7 being duly sworn, was examined and t~stified as follows:
8 DIRECT EXAMINATION
9 BY MR., CORSMEIER:
~: .
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10
Q
Could you give us you full name for the
11 record.
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12
A
Robert G. Potthoff.
I:
"
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13
Q
Where 'do you reside, Mr. Potthoff? The county
14 is fine.
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15
A
Pinellas County. .
Do you currently own a business named Aqua
16
Q
,17 Wave Rentals?
"
18
A
That is correct.
19
Q
What is the nature of the business?
20
A
It is a waverunner 'rental of personal
21 . watercraft.
\.
, .
22
Q
Prior to owning that rental business, did you
.\
~3 inquire as to obtaining a conditional use permit to
24 operate personal watercraft?
"
25
A
Yes, sir.
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130
Q
When would that have been?
That would have been in June of '97.
Q
Who did you inquire to?
Mr. Held, Bill Held, the Harbormaster.
Did you actually go to the Harbormaster's
Yes, sir.
What happened when you went there?
I was told at the office there that
well,
10 Mr. Held said, as long as he was in office that there
11 would never be another waverunner operation in the pass.
12
Q
':
When was that? I don't know if we got the
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date, the approximate date.
A That was approximately around June 15th,
13
14
"
15 middle of June.
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16
Q
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17
A
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18
Q
Of what year?
1997.
Based on that, did you apply for a conditional
"
19 use permit in Clearwater to operate a personal
20 watercraft business?
,"
21
A
\ .
22
Q
23
A
";>
No, sir.
How did you obtain your current business?
I sent letters out to all the owners of
24 wave runner rentals and inquired about buying one out.
25
Q
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When did you purchase the business?
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A
I purchased Aqua Wave Rentals in November of
2 1997, November 3rd.
3
Q
For purposes of the record and also for the
4 'Administrative Law Judge, could you give us the location
5 of your business in relation to the pass and also in
6 relation to Shephard's?
;p
7
A
Okay, I'm east of Shephard's by about 300 to
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8 400 yards, I would approximate., I'm in between the gulf
9 and the intercostal, and I am right next to the Sand Key
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Q
How many personal watercrafts do you rent?
12
A
Four.
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Q
You're close to the Clearwater area at Sand
14 , Key Bridge?
15
A
Yes, sir.
I am about 200 feet from the Sand
16 Key Bridge.
;.
17
Q
When you are renting your personal watercraft,
18 where in relation to the pass do you direct the
;....,
19 operator, the renters to go?
20
A
We send all of our customers in the
21 intercoastal in an area where there is no traffic.
22 There are channel markers out there where the main
23 traffic flow goes, as far as the boats, they have to
':
24 stay in there, otherwise, they'll run aground.
25 wave runners you can run in three feet of water.
But the
Even at
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132
low tide you can still run out there where other boats
can't. So there is no traffic out there at all.
Q
And that's toward or away from Shephard's?
A
No, that is east of it, away from it.
Q Directly away from it?
A Directly away from it.
Q
,
That would be to the left, if you're looking
out .to the pass from your business?
A
It would be to the left.
Q
That's where Sand Key Bridge is?
Underneath the bridge and over into the
A
intercoastal.
Q If you're looking out from your business,
Shephard's is on the right?
A
That's correct.
Q What's directly next to your business on the
right side towards Shephard's, are there condominiums?
A Yes, there is the 440 West or the Continental
Towers.
Q
They go in a row there in between you and
Shephard's?
A Yes, there is the Best Western -- first,
there's a Holiday Inn, Best Western, and then we have
the Continental Towers, Quality, then Econo, and then
Shephard's.
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133
Q
And you already stated the area that you
2 direct your renters to go is not a congested area.
3
A
No, it is not congested.
4
Q
Does it become congested on the weekends?
5
A
No, sir. Not even on holidays or weekends.
6
'Q
If you direct them to the right, would that be
7 a congested area?
8
A
Oh, yes, customers ask me if they could go --
9 especially on weekends, I have customers come by, and
10 ask and I say absolutely not on the weekends at all,
11 just for the traffic at Shephard's.
12
13
'14
15
Q
Do,You monitor the location -- I'm sorry, I
didn't mean to cut you off.
A It is not safe at all to ride that way.
Q
Do you monitor your watercraft to make sure
16 that those crafts stay in the direction you have sent
17 them?
18
19
A
Yes.
Q
Have you had occasion to direct individuals
20 back to the location you had sent them?
21
A
Oh, yes, we have to go out and get them.
If
22 they have gone out that, way, we go get them and bring
23 them back.
24
25
Q
How do you go get them?
A
On a chaser.
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4
Q
Have you ever had any complaints, to your
134
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You have a chaser for safety purposes and also
2 for that reason?
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A
Yes.
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5 knowledge, about your business, your personal watercraft
6 business?
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A
NO.
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Q
You've been running that business since
9 November of 1997; is that correct?
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A
That is correct.
11
Q
Do you rent to anyone that comes up to you and
12 asks you to rent a personal watercraft?
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A
No, I do not.
14
Q
How do you determine how to rent to an
15 individual or not? What criteria do you use? It may be
16 a form.'
. 17
A
If the person has been drinking -- I mean,
18 I've had customers come up with a beer cup in their hand
.. '
19 and want to rent, and we totally refuse them then.
If I
20 can smell it. If I can see it 'in their eyes or they're
21 staggering. I would basically do it any way that a
22 police officer would do it.
23 it, and we refuse them.
You just have to look for
24
,Q
And you have refused individuals who have been
25 . drinking?
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135
1
A
Yes, sir.
2
Q
What about if you determine that .-- well, let
3 me ask you this. Are there any other criteria that you
4 use for an individual, such as, age or anything else?
5
A
Yes, you have to be 16 years of age t~ rent a
6 waverunner,' and with our insurance policy that is with a
7 parent's signature. You have to be 18 years old to
8 rent.
9
Do you insure that that occurs, that the
Q
10 identification 'is properly provided?
11
Oh, yes. They provide me with their driving
A
12 licenses, ~oating certificates, boat driving license.
13
What amount of insurance do you have?
Q
14
I have a $5 million policy.
A
15
Now, when you decide to rent to an individual,
Q
16 what, if anything, do you do as far as education or
17 explanation regarding the use of the watercraft?
18
We have an orientation on the beach. And'our
A
19 orientation always starts with -- we make sure they know
20 where the markers are at, which Mr. Held was talking
21
about the no-wake zone.
We point out the markers one at
22 a time to make sure everyone understands where they are
23 at, and we say from this point to that point is a
24 no-wake zone.
25
Q
Do you tell them how to use the personal
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Oh, yes. That's my first part of my
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I can go through the orientation, if you
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A
No.
But we go through -- it/s about a lS-minute
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7 orientation. And then we go down to the water, and we'
8 put them on the boat, and we show them how to operate
9 the machine.
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.Q
Let me move on.
Okay.
Did you have an occasion to learn that
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13 .,Mr. Conatser applied for a conditional use permit for
14 the use of personal watercraft?
15
A
16
Q
17 been made?
18
A
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.19 been made?
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23 'anything?
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25 Mr. Held.
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Yes.
When did you' find out that the application had
When did I find out that the application had
In relation to the hearing that was held?
It was probably two weeks prior to it.
After you learned'that, what did you do, if
'After I learned about it, I went to see
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137
1
2
Q
What happened when you saw Mr. Held?
I talked to Mr. Held about it. He said there
A
3
was going to be a Marine Advisory meeting.
Q Marine Advisory Board meeting?
4
5
A
Yes, I ~ean, a Marine Advisory Board meeting,
6 that's correct.
10
Q.
A
Q
A
Q
time?
A
Did you object to the Gonditional use at that
Yes.
11
12
13 Yes. I objected because I told them it was an
14 unsafe area. And they were working out of the busiest
15 bar.
I can say it's the only bar in Clearwater, I
16 guess, where you can pull your boats up to and anchor.
17 I guess, you could go on the gulf, but you would have to
18 wade in, because you couldn't bring your boat in that
19 close. There are some bars on the gulf.
20 Q Is that the only inland bar that you can pull
21 your boat up?
22
Yes, in Clearwater.
A
23
What did the Marine Advisory Board do, ff you
Q
24 know? Did they recommend denial?
25 A They unanimously voted denial, yes.
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1 Q Did you go to the Planning and Zoning Board
2 meeting on May 19, 1998?
3 A No, I did not.
4 Q Why not?
5 A Mr. Held had informed me that he had sent a
6 letter, a memo, to the commission or whatever, and it
7 would be June 2nd, to show up then.
8
Did,Mr. Held indicate whether he asked that
Q
9 the meeting be continued?
10
A
Yes.
11
Did he tell you that he had asked that?
Q
12
A
Yes, he said it would be continued.
13
Q Would you have gone to the meeting on May
19th, if you had known that the hearing on the
14
15 conditional use was going to be considered on that day?
16
Oh, yes, definitely.
So the reason you didn't go was because Bill
A
17
Q
18 Held had indicated to you that he felt it would be
19 continued?
20
Yes, sir.
A
21
Q
You would have objected to the granting of
22 that conditional use at that time?
23
A
Yes.
24
Q
Are you aware of others that have objected to
25 the granting of this conditional use?
138
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1
A
Yes.
.2
Q
Who are 'they?
Oh, there's Guy right here from Econo Lodge.
3
A
4 We have Calvin with parasail City.
5
Q
Where is he located?
6
A
He is at the Quality Inn. He runs out of
7
there. That is between me and ShePh,rd'S. There was a
list of people at the Continental T01ers that had made a
petition against it.
8
9
11
Q Did you later learn that hearing -- the
meeting had been held and the conditional use permit had
12 been granted by the Planning and Zoning Board?
13 A Yes, I found out the next day through a friend
14 of mine.
15
You indicated how far you are from Shephard's.
Q
16 Have you had occasion to observe Shephard's, not only in
17 your business, but also have you gone down to the beach
18 and observed the business at Shephard's and the area
19 around there?
"
21
25
20
A Oh, yes.
Q Is it a bar?
A It's a bar, restaurant, night club.
Q Have you observed it on the weekends?
A Oh, definitely, yes.
Q Did you have an occasion to go there this past
22
23
24
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140
weekend and take some photographs?
A Yes, sir, I did.
Q Would you take a look at the photographs that
are in front of you.
If you would, just take a look at
that, it's a composite exhibit for the record.
It's a
7-page composite.
If you would look at each page of
that and indicate whether you took that photograph or
.the image.
A
Q
A'
have been
Q
A
Q
A
5:00.
Q
A
Yes, I did.
When did you take those photographs?
I took those Sunday, last Sunday, which would
August 2nd?
.Yes, sir.
What time was it?
It was approximately four o'clock
4:00 to
What was the weather like at that time?
It had just got done raining. We had a pretty
big storm come through Sunday.
Q So this was just after the storm had ended?
A Yes, sir.
Q Are these photographs current, accurate
depictions of that area of Shephard's at the time that
you took them?
,.'
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141
"
a
1
A
Yes.
2
Q'
Let's talk about the photographs. What does
3 the first page show, just briefly, where was that 'taken
4 in relation to Shephard's and your place of business?
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5
A
The first photo that we're looking at here.
Before you, identify them, let me ask you this
'.j.
6
Q
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7 follow-up question on your last statement. Was there
8 more or less of a crowd after the storm than before the
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A
There was less of a crowd after the storm.
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Q
Go ahead. Take a look at the photographs.
The top photo here, this is, I would be taking
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A
13
the picture east.
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Q Toward your business?
15
A
Toward my business; that's correct.
16
MR. SCHUETT: It's kind of hard for us follow
17
exactly.
If you don't mind, if I could look on
18
with him, and if I could bring my client also
19
because he knows the area better than I.
20
MR. CORSMEIER: He can look at them when he
21
testifies.
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22
MR. SCHUETT: Yes. Thank you.
'"
23 BY MR. CORSMEIER:
,
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24
Q
What does that show?
.: '.
25
A
This is where the Shephard's back yard Tiki
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1 bar is at. There's like a little grass hut there on the
2 right. That is where they have live music at the right
3 there. And the Tiki bar is up here where the yellow
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4 'sign's at.
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Q
Tha~ shows the beach area around the bar, and
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6 that's exactly towards the little Tiki bar ,area?
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7
A
Yes.
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9 show? Is that straight down the beach?
10 A Yes, straight down the beach.
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Q
That's Clearwater -- the Sand Key Bridge on
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12 the right side.
13
A This is the Sand Key Bridge.
There's the
()
14
Continental Towers, the Quality Inn.
15
Q
Second page. More areas of Shephard's. Is
16 that looking westbound?
17
A
That is looking westbound. The top photo
18 would be looking west.
:;\
19
Q
And how about in the bottom photo?
20
A
The bottom photo is a picture of Shephard's
.i
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21 back yard, ~iki bar, and night club. They've got like
22 on Monday, Tuesday, Wednesday, Thursday, Friday,
23 Saturday and Sunday, they've got drink specials and
24 something going on every day there and ~very night.
~ !
25
Q
Look as this second page. of photographs.
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21
22
23
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25
.." I .
143
Where is the proposed conditional use by Mr. Conatser in
relation to that photograph? Is it straight ahead or
behind it?
A
It's behind it.
Q
Let's look at the next picture. What is this
area?
A This area right here is this fence is like the
dividing line between from Shephard's and Econo Lodge.
Q
So the Econo Lodge's property ends at that
fence, and beyond that is the Shephard's property?
A That's correct.
Q Is it the same for the picture right
underneath?
A
Yes.
Q
Next page, same thing, is that the property?
A
Yes, .i tis.
Q Are those boats in front of Shephard's right
there?
A Yes, those are boats, watercrafts. Like, I
said there was a storm, and all these folks stayed
through the storm.
Q Same with the bottom page. The bottom photo
on that page.
A Yes.
Q. Next page depicts Shephard's, and the beach
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1 near Shephard's?
2
A 'Yes.
Q Which way is that facing?
A This is facing south.
Q Both of them.
A Both of these are facing south. That is the
3
4
5
6
7
8
pass, and there's a jetty on the other side.
Q How about the next photo?
A The back page?
9
10
Q One more, after two more pages.
11
A
Okay.
12 Q You're still looking at the bottom of that
13 photo--
14 A Yes.
15
Q
does that show boats that are in front of
16 Shephard's?
17
18
A
Yes. Boats, people in the water, drinking.
Q
Did you observe individuals drinking on the
19 beach area?
20
21
A
Oh, yes.
Did they move from ,the Shephard's area into
Q
.22 the Econo Lodge'S property?
23
Yes. There were some of them that had drinks
A
24 in their hands and were going back and forth.
25
Q
Is the last picture in your packet -- look at
'......
5
6
the very last photograph,
A The one with the single photo?
Q Yes, that's the second to last one.
A Yes, sir, these folks were - -
Q Did you observe those individuals? Is that
the property line between Shephard's and the Econo
Lodge?
145
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Yes, sir.
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So you observed individuals drinking while
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Going back and forth, going across the line,
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13 MR. CORSMEIER: Judge, they've been
14 identified, so I ask to move them into evidence.
17
MR. SCHUETT: No objection.
MS. DOUGALL-SIDES.: No obj ection.
THE COURT: Do they have a number?
MR. CORSMEIER: Yes, sir, they are Number 4.
THE COURT: Received Number 4.
15
16
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18
19
20
[Appellant's Exhibit No.4, Photos, received.]
21 BY MR. CORSMEIER:
22
Q
Now, you filed an appeal of the granting of
23 the conditional use by the Planning and Zoning Board to
24 Mr. Conatser?
25
A
Yes, I did.
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Q
Why did you file this appeal?
I filed this appeal because I felt that it
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well, a couple of reasons. One, of them is for
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I mean,
5 I have a business there and I have an interest in it.
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6 And my most important reason is the safety issue. We do
'7 take our jobs very seriously where we work at and with
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what we do. We have a very good orientation. We take
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we have people come by that
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want to get on these things drinking, and we have to
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13 lot of people that want to do it and it's not a safe
~40peration at all.
15
Q
In your opinion, would additional personal
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~6 watercrafts decrease safety in that area?
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17
A
Oh, definitely.
~8
Q
Affect safety?
19
A
One jet ski can put -- I mean, I've got four
20 jet skis and there's days I rent 50 rides out.
21 that's a lot of traffic.
I mean,
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22
Q
Are you aware of anyone else that would like
23 to have conditional use for a personal watercraft?
24
A
There's been a lot of people who have tried.
Even the individual next to you, the parasail
25
Q
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operator?
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A
Yes, sir.
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Has he indicated that to you?
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A
Yes.
Calvin of parasail City, he has tried,
5 and he was turned down, too.
6
Q
Has he indicated he otill wishes to have one?
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7
A
Oh, yes.
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8
Q Now, as far as rental of your personal
9
watercraft, would you say that the greater percentage of
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individuals that you rent to are tourists or those
individuals are not from the Clearwater area?
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A
Yes, that's correct. Most of my clients
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13 we're at the Holiday Inn, it's a family hotel, like the
14 Econo Lodge and the Quality, they're family orientated
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15 ~usinesses, this brings a lot of tourists and their
16 families.
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17
MR. CORSMEIER: That's all I have.
Thank you.
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18
CROSS-EXAMINATION
19 BY MS. DOUGALL-SIDES:
20
Q
Mr. Potthoff, could you look at the document
21 that is marked Government Exhibit Number 2, which is a
22 portion of the zoning outlets for the area.
Does that
23 contai~ the property that you operate your business out
24 of?
25
A
Yes, ma'am.
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Q
Could you mark an X or indicate in some manner
2 where your business is located?
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A
I'm circling it for you.
Do you have a beach area that you use?
Q
A
Yes, we have a beach area.
MS. DOUGALll-SIDES:
I would offer this as
Board's Exhibit Number 2.
THE COURT: Any objection?
MR. ZIMMET: No. Are we going to call them
Board or City or Government? You filled them out
there.
"
THE COURT: ,It's Government Exhibit.
MS. DOUGALL-SIDES:
I don't have labels for
Board Exhibit so the labels say Government Exhibit.
THE COURT: I don't think the Board is
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16 actually a party.
."
.17 BY MS. DOUGALL-SIDES:
18
Q
Now, you are not the property owner of the
19 property; is that correct?
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,That's correct.
Q
Do you have a lease of the beach area?
Yes, I have a lease with the Holiday Inn.
How long have you had the lease?
I've had it since November of '97?
A
Q
A
Q
Did your' business receive a notice of the
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1 Planning'and Zoning Board hearing in this matter?
2
A
No, I did not.
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Q
Do you know if the property owner received a
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A
No, I do not.
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Q And you did not submit any written comments to
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the Planning and Zoning Board; correct?
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A
That's correct.
9
Q
From your knowledge, how long has a personal
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11 location, if you know?
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12 A Well, it started off -- like Mr. Held said
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But as far as .
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15 there. And then they went to stand-ups, which was jet
16 skis.
That's where the jet ski term came from.
They
17 were just stand-ups.
The sit down models came in the
18 late '80's.
19
Q
When you say "ski boatsll is that a water ski?
20
A
That's power boats, just small little power
21 boats is what they started off with there.
22
Q
When you refer to lithe license,lt would that be
23 the occupation license?
24
A
Yes.
25
Q
So as far as you know has it been a continuous
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1 operation of various types of vessels since 1980?
2
That's what I heard, yes, as far as I know.
Now, is your operation seasonal or year round?
A
3
Q
4
My operation is year round.
Does business fluctuate somewhat with the
A
5
Q
6 different seasons?
7
A Well, EI Nino this year, it hurt us. Yes,
around January or February it siows down a little bit.
,
8
9
Q
Then does it pick back up in?
A
It starts picking up in March, yes.
Q
If I understand your counsel's comment, you
12 are now dropping your objection to the flats boat
14,
15
operation; is that co!rect?
A That's correct.
Q
Your appeal is just regarding the jet skis or
16 the personal watercraft?
17
A
Yes.
18
Q
You mentioned customers from Shephard's
19 walking over to Econo Lodge or transversing different
20 properties?
21
A
Yes.
22
Q
That's been your observation?
23
A
,Yes.
24
Q
Now, wouldn't the public be able to walk at
25 least below the mid to high tide line from one property
150
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Yes, they can go back and forth.
So there's no physical or legal barrier that
151
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3
Q
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4 you know of for the public walking up and down the
5 beach?
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MS. DOUGALL~SIDES: No further questions.
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CROSS-EXAMINATION
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BY MR. SCHUETT:
,10
'Q How are you doing, Mr. Potthoff?
A Fine.
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Q
Good. You said that Shephard's is a bar.
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It's also a hotel; is it not?
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14
A That's correct.
15
Q
So it is a hotel.
16
A
Yes.
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17
Q
You said that you had to have $3 million in
18
insurance coverage?
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19
A I've got $5 million.
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Q
$5 million.
21
A
Yes, sir.
22
Q
Does the Holiday Inn require that you have $5
23 million?
24
A
Holiday Inn requires it.
The first thing I would like to do is, you-all
25
Q
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1 went down and, basically, like -- I don't know the best
2 way to orientate this. Using Government Exhibit Number
3 2, sir, if you don't mind if I take that from you for a
4 second. You're all the way down by the bridge, correct,
5
6,
by the Sand Key Bridge?
A Yes.
7
In fact, I work out at top there, so I know
Q
8 exactly where'you are. Now, you, basically, tell your
9 ,people that they don't go down the entire pass to go out
10 to the gulf, they just go out to the end of the
11 intercoastal water?
12
A
There is an exception on extremely low tide.
13
Right.
Q
14
We do send people in the gulf, but not on
A
15 Fridays, Saturdays or Sundays
16
Right, I mean
Q
17
A
-- because we don't allow it.
18
Q
Sorry about that.
I didn't mean to cut you
19 off. Mr. Potthoff, please, if I do, I have a bad habit,
20 and I'm working on it, if I rlo.
21 But your general practice is when that pass is
22 busy, you send them out towards -- you send them into
23. the intercoastal waterway?
24
A.
I would say 99.5 percent of the time they all
2S go out in the intercoastal.
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153
1
Q
Now, they still have to go through some
2 traffic out that way, correct?
3
A
Yes, there's some traffic.
Now, are you familiar w~th where Mr. Conatser
4
Q
5 is plannini on running his business?
6
A
Yes.
7
Q
Now, you said you were about 200 feet from --
8 I guess -- I don't remember the exact feet. But it was
9200 feet from?
10
The Sand Key Bridge.
From the Sand Key Bridge.
Yes, approximately.
A
11
Q
12
A
13
Q Approximately. And are ~ou familiar -- I
14
didn't hear the answer, are you familiar with where
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Mr. Conatser is going to run his business?
A Yes.
Q Would it be fair to say that he's going to be
approximately 75 yards from the end of the no-wake zone?
A I would say that's approximate.
Q Right.
A Maybe a little more.
Q
Right, about the same distance. And I'm not
23 asking you here for speculation, but to try to
24 understand your rat{onale.
If I told you that
25 Mr. Conatser was planning on just having those people,
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1 escorting them straight out, and, going just ~- not back
2 towards your area, not across towards Shephard's, but
3 just having them go out into the gulf, would that be
4 somewhat similar to what you do by sending your people
5 to the intercoastal?
6
A
As far as -- how do you mean "similar"?
7
Q
Well, similar -- it's my understanding that
8 the reason why you don't want them to go out to the gulf
9 is because of that pass and because Shephard's is so
,10 crowded and that the whole Clearwater Pass is crowded?
11
That's correct.
A
12
Is that a fair summary?
Q
,13
That's correct.
A
14
So, therefore, you send them the other way,
Q
15 you send them to the intercoastal?
16
That's correct. We don't have to deal with
A
17 Shephard's.
1.8
Right.
You don't have to deal with
Q
19 Shephard's? Now, you're familiar with where
20 Mr. Conatser's business is going to be run from?
21
A
Yes, he's in between the large dangerous rocks
22 that are right, where he's going to bring jet skis in.
23
Q
Objection to the reference of "large dangerous
24 rocks."
I understand.
2S A
And there's some photos about that.
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1
Q'
We'll get to that also. Now, you were here
2 when Deputy Hightower was testifying, right?
3
A
That's correct.
4
MR. ZIMMET: Littlejohn or Noll?
~ MR. SCHUETT: Littlejohn.
6 BY MR. SCHUETT:
7
Basically, the point is that where he's
Q
8 running his business and Mr. Conatser is running a
9 business, to get them out in the gulf, which is what his
10 plan is, that he would not have to go' through Shephard's
11 or anything like that, were you here to hear that?
12
A
Through Shephard's~ You mean, just the gulf?
13 I mean, in the pass. You're talking about the pass. As
14 far as Shephard's, you don't go through Shephard's.
15
Q
I understand.
1,6
All the boats are in front and back all around
A
17 Shephard's in the pass. They are anchored out there.
18
The boat area that he would be going through
Q
19 would not be out in front of Shephard's though.
20
He's right behind Shephard's.
. Okay, that would probably be easier with the
A
Q
22 pictures, and I'll get to that.
Holiday Inn also has a bar; doesn't it?
A
They have a Tiki bar.
Tiki bar.
Q
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13
14
15
16
17
18
19
20
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23
24
25
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156
A
Yes.
Q And people can come up and buy drinks,
correct?
A Yes, they have hot dogs, hamburgers, soda.
Q And people also can buy alcohol, can't they?
A That's correct.
Q
You do have boats that dock out in front of
your location; do you not?
'A
To the side of us.
Q
Because you have a buoy system?
A We have anchors set up out there with buoys on
them, that's correct?
Q Which is what Mr. Conatser would also do in
front of his business. But to the side of that, you do
have' boats out in front of yoU?
A Yes, we have a hundred foot -- we spread our
buoys out a hundred feet, because that's about how much
you need to get four waverunners in there.
See when
boats come through, you get big high waves and stuff.
And that was my comment about the rocks, because it's
unsafe, because with the waves coming in crashing
Q There's no waves in that area.
A But you still get waves from the boat traffic,
and it's the gulf, ,you get swells coming in.
Q I don't know how to do this with the pictures,
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I 1 because of the fact that I want to point out a few
10
11
12
2 things on these pictures.
I guess, I'll just try. Let
3' me get a copy.
4
MR. SCHUETT: And I will ask Mr. Johnston --
the Judge that he follow along.
Do you have a copy of those pictures? I know
you handed them around. I've got papers allover
the area -- I'm used to having a lot of area to
spread out all around.
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BY'MR. SCHUETT:
Q I'm going to show you Exhibit 4, of the first
page, ,and this is obviously a copy. And that top
13 'picture on the top, there's not, tha~ area does not
14 picture where Mr. Conatser will be running his business
15 out of, does it?
'17
16
No, it does not.
A
Q'
This picture on,the bottom does not picture
18 the area where Mr. Conatser will be running his business
19 out of, does it?
20
A
Well, actually, I've never heard where he's
21 going to run the business. Right where his parasail
22 boat is at? Is that where you're gping to put it at?
23
Q
No.
24
A
No, it is not.
25
Q
In fact, they're both pointing to the east,
2
A
To the west.
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1 where he would be running his business to the west.
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This picture right here,' the next picture on
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the next page on the top, does not show Mr. Conatser's
location, does it?
A No, it does not.
Q In fact, Mr. Conatser's location . on the
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other side of this picture; is it not?
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It is on the other side.
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It's on the other side. Isn't there a little
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12 other side before you get to his location?
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A
That I don't know about.
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Q
You don't know.
15
A
No.
16
Q
Let's go to the next -- but with respect to
17 this top picturel that is not actually a picture of the
18 area where he would be running his business out of, is
19 it?
20
A
No, it's not.
21
Q
And the picture on the bottom, is that a
22 p~cture of the area that he would be runnin~ his
23 business ~ut of, is it?
24
A
No.
25
Q
Flipping to the next page, looking at this.
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2 entrance to Shephard's; is that correct?
3
A
Yes.
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Q And that would be the east-side entrance,
wouldn't it?
5
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East side.
A
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Q And Mr. Conatser is going to run his business
on the west side; would he not?
18
9
The west side.
A
Q
So this does not picture any area where
11 Mr. Conatser will be running his business?
12
No, you can't see it through here.
A
Q And this area right here on the next picture
down below, that is also not pictured in an area where
15 he would be running his business, does it?
16
No, not there.
A
Q
This picture right here, the top picture on
18 the next thing, where is that a picture from?
19
From the east side.
A
20
From the east side.
Is that a picture there
Q
21 where he would be running his business?
22
A
Yes, you might be able to get a piece of it
23 r~ght there.
24
Q
It would be off to the way right.
25
A
Yes.
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But you're not exactly sure if it actually is
I would say that's probably a part of it, yes.
The picture down below is that from the same
Yes.
Next picture --
That might have showed his business over there
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Do you actually see his boat or his business
Yes, it would be right on the other side of
It's on the side of the rock?
.Yes.
Okay.
No, his boat wasn't there the day I came by.
The next picture on the next side. That's a
19 picture of -- I guess, the little girl up front. What
20 is the other picture of?
A Just people on the beach.
Q What area?
A This is the east side.
Q And, again, that's not going to be a picture
of the area where'Mr. 'Conatser is going to be running
21
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23
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25
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Here it is.
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Where you're indicating is that way off to the
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And that's over by the end of the building on
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And this final picture is also.
It's off to the east side here.
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A No.
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And would it be safe to assume with the last
16 three pictures that's the same instead of going one by
17 one through them? These are not pictures of the area
18 where he's going to be running 'his business out of?
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A
Yes, that is the area where he runs his
20 business out of, I would say.
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Q
Well, we can do this
22
A
Okay.
23
Q
Where he's going to actually have his area,
24 where he's going to let his waverunners go out, is that
25 pictured in that area?
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162
1
This picture, no.
A
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this area?
A
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area?
A
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Yes, that was part of his area.
2
Is it pictured in any of these pictures of
3
4
I did show you some places where there was.
5
Where you thought he was going to be in an
6
7
10 So, except for the one or two references you
11 made to far away references, there's no actual pictures
12 in' here of where Mr. Conatser is going to run his
business from, is there?
14
A Actual pictures.
There was pictures of where
!
he could run his business out of -- th~re's parts of it
16 on there.
17 Q I'll go through them with Mr. Conatser.
18 So, basically, you run your waverunners by a
19 hotel?
20 A Behind the Holiday Inn Sunspree.
21 Q And if Mr. Conatser,' if he got his permit, he
22 would be running his by a hotel? Shephard's is a hotel?
23
24
25
A
Yes.
Q
Holiday Inn has a bar?
A
A Tiki bar, correct.
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1
Q
And Shephard's has a bar.
2
A
That's correct.
3
Q
You direct your customers to stay out of going
4 down
5
6
THE COURT: Excuse me, but you don't need to
repeat everything he testifies to.
7
MR. SCHUETT: Okay.
8 BY MR. SCHUETT:
9
Q
You run four waverunners?
A
Yes, sir.
Q
I guess the simplist question is how is your
12 operation any safer than his operation?
,18
13
14
15
16
17
19
20
21
22
23
24
25
To the point --\
A
MR. CORSMEIER: I just object.
I don't know
that that's actually an issue for you to consider
whether his operation is safer or not. The
questions that we've raised and we've presented to
you is whether the additional personal watercraft
should raise safety concerns, not whether his
operation would be safer than his operation.
, :
THE COURT: So you don't feel that's an issue?
MR. CORSMEIER: Right. Whether his -- the
various operations will be safer than the other
one.
I don't think that's an issue before you
today.
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MR. SCHUETT:
I would like to argue that.
Mr. Potthoff on the other side during his testimony
'on direct, he made reference to the fact that there
was a bar, he made reference to how his business
ran, and tried to make references to how Shephard's
and all this. And I think I've just shown that
there isn't any differences. "So I think it's a
very fair question to ask, why Cliff's business
would have any more of an impact on that area than
his business does? I think that's a very fair,
question.
It's what he's testified to.
THE COURT: Are you conceding that the
applicant's business is safe?
MR. CORSMEIER:
I don't know yet, he doesn't
So I wouldn't concede that.
Our
have it yet.
client has testified to his procedures that he uses
'for operating his business.
THE COURT: I will overrule the objection.
MR. SCHUETT: So you want him to answer the
question?
THE COURT: Yes.
BY MR. SCHUETT:
Q Would you please answer the question.
A Please ask me the question again.
Q
I'm, sorry.
I'm a little tired today.
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THE COURT: Ask him the question one more time
165
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3 BY MR. SCHUETT:
4
Q
How is his business going to have any more of
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A
As far as drinking? Is that what you're
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Q
No. My understanding from what your counsel
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10 Mr. Conatser was going to have an impact on the safety
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11 of the area.
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12
A
That's correct.
13
Q My question to you is, how is his going to
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have any more of an 'impact on the safety of the area
lS than yours will?
16
A
Anymore boats in that area is going to be
17 unsafe, anymore.
It is already, already, an unsafe
18 area.
It's very unsafe. There's people out there
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19 swimming from Holiday Inn all the way up to the Ramada,
20 I mean, all the way up. People swim along there. And
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21 any more rental companies in that area will be unsafe.
22
Q
So you're saying one more boat? I'm just
23 asking
24
MR. CORSMEIER: Asked and answered.
25 BY MR. SCHUETT:
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166
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How are you going to insure that other boats
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3 make it any more unsafe?
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How am I going to insure it?
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Q
That's the concern.
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I'll leave that up to Mr. Held; he's the
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MR. SCHUETT: I have no further questions.
THE COURT: Redirect.
,9
10
MR., CORSMEIER: Just a couple, Judge.
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11 REDIRECT EXAMINATION
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Q Mr. Schuett asked you about the Tiki bar at
the Holiday 'Inn.
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15
A
Yes.
'16
Q
What's the size of that?
17
A
The Tiki bar itself is approximately 9 foot by
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18 15 feet.
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Q
What is total number of people that can sit
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20 there?
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21
A
I think they have like a dozen bar stools and
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22 four maybe five tables.
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23
Q
How big is that in relation to Shephard's?
Where the band plays at Shephard's you can set
24
A
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25 the Tiki bar on that.
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And what is the general -- it's Holiday Inn
167
9 stairs to me. Once they get there, if somebody comes up
10 and they have a beer in their hand, they are definitely
11 refused. And just like I said before, we look at their
Q
2 there that's got the Tiki bar, correct?
3
A
That's correct.
4
When you rent at your location, do you have
Q
5 occasion -- does anyone, do you ever see anyone come
6 from the Tiki bar and try to rent a watercraft, if you
7 do, what would you do?
8
I can't really see them. They come down the
A
12 eyes, and we can smell it.
It's obvious. And we do
13 refuse them.
14
Q
These photographs that you -- I'm not going to
15 make you go through them again, believe me. But the
16 maximum length of that you were away from the location
17 that Mr. Conatser's parasail operates from, what's the
18 farthest away that you stood in taking these
19 photographs?
20
Ten feet, 10 feet to 20 feet from where he has
A
21 his business.
22
Q
How about when you took the photograph of the
23 photo from the line between the Econo Lodge and
24 Shephard's, where is that in relation to his business?
25
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I would say that where I took that photo from
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1 the east side where the fence was at to his business was
2 probably 200 feet approximate.
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4
MR. CORSMEIER: That's all I have. Thank you.
MR. SCHUETT: Judge, I only have one question.
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Since the pictures are a major issue, and since he
8
did say ten feet, I'd really like to be able to ask
which picture was ten feet from his location,
that's a major point to me. I didn't object to it.
But I'd like to see which one it is.
6
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'THE WITNESS: The bottom one right here. '
MR. SCHUETT: Can I ask just"two questions
based on that?
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RECROSS-EXAMINATION
15 BY MR. SCHUETT:
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16
Q
That bottom one right there was ten feet from
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17 his property.
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18
A
Right here.
19
Q
So was your back to his property when you were
20 taking that picture?
21
A
Yes.
22
MR. SCHUETT: That's all I have.
23
MR. CORSMEIER: When you say "propertyn you're
24
talking about the location of his parasail
business? Is that what you mean by that?
25
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MR. SCHUETT: Right. His back was to where he
was going to run the parasail business.
2
5
THE COURT: Anything further? Any further
evidence from the appellant?
MR. CORSMEIER: No, Judge, I would just like
3
4
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to look to make sure we don't want to present any
more exhibits, if not we'll rest. We'll rest.
7
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THE COURT: As I understand the City has no
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witnesses to call. But there is one more witness.
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MR. SCHUETT: One more witness.
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[Off-the-record discussion.]
12
THE COURT: Would you raise your hand and be
13
sworn. Do you solemnly swear or affirm your
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testimony at this hearing will be the truth, the
15
whole truth and nothing but the truth?
16
THE WITNESS:
I do, sir.
'I
17 CLIFTON H. CONATSER
18 being duly sworn, was examined and testified as follows:
19 DIRECT EXAMINATION
20 BY MR. SCHUETT:
,
1.
,
21
Q
Would you please state your full name for the
:,:.:
22 record.
,(
23
A
Cliff Conatser, C-O-N-A-T-S-E-R.
. ,
24
Q
Cliff, what do you currently do right now?
25 What is your business?
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1
A
I'm a boat captain.
I own a parasail company
2 out of Shephard's Lagoon Resort.
I lease property
3 from -- I lease an area from Shephard's.
I'm affiliated
4 with Shephard's.
S does.
I lease just like the other gentleman
6
Q
On that piece of property, if you could kind
7
of explain to the Judge where your relation is to that
8
, ,
piece. of property to Shephard's?
9
A I'm at the far west end of Shephard's on
10
Shephard's property.
I'm in their parking lot,
11 basically. They have the Tiki bar. They have a large
12 walkway. Then they have the parking lot. And then
13
would come my business after that.
14
Q So you're at the far end?
15 A I'm as far west as you can get on that
16 property. I'm at least 200 feet from going into the bar
17 are~, even getting close.
18
Could you explain kind of your -- for lack of
Q
19 a better term, your marine or your water background.
20
I carry a 100 Ton License.
I worked out of
A
21 New Orleans, ran crew boats. Been running private boats
,22 for quite a few years.
I was a commercial diver.
23 Basically, that's it.
24
Q
When you talk about 100 Ton License, kind of
25 explain that to the Judge.
I didn't understand it at
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171
1 first.
.2
A
A 100 Ton license means I can run a ship up to
3 one hundred tons. 'Like any of these gambling boats, I
4 can run them. There's certain sizes.
5
Q
Does your wife also help you in this field?
My wif~ helps me. She works as a paralegal
'6
A
7 for the Trial Division of Nationwide in the claims
8 department, so she's ~ery familiar with insurance,
9
liability; et cetera.
Q Now, you said
how long, again, have you
11 been running this parasail business?
12
13
14
A
This is our second year in business.
Q
What is your safety record?
We've had no complaints thus far. Knock on
A
15 wood.
16
17 citations?
Q
Knock on wood. Have you received any
18
19
A
No citations.
Q
We talked a little bit earlier and Mr. Held
20 told me about the wake zone. Will you explain to the
21 Judge why you went to them on the wake zone?
22
A
They were all talking about safety. Jimmy, a
23 friend of mine here, partner, we were looking at that
24 several times, and these boats, even the bigger fishing
25 boats will come in at a very high speed. And they had
,c. .,
172
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1 to stop or slow down, past, right past your place,
2
MR. JASMIN: Right past the Quality Inn, not
3
quite, almost.
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A
Anyway they had to slow down at that point.
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5 So they were coming at a very fast speed. So I just
6 thought for safety, because there are a lot of boats
7 that anchor at a certain part of Shephard's and the
8 Quality Inn, and the Holiday Inn. And they do anchor,
9 and these boats get pushed around, and people could get
10 caught between the boats.
11 I went to tell Mr. Shephard, "Mr. ~hephard, 'it
12 would not hurt to move this thing further out. II I said.
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13 Most places I've ever been out of New Orleans,
14 Mississippi, California, anywhere I've ever been, I'Ve
15 seen most -- the end of the jetty is where the no wake
16 starts.
I mean, it doesn't start in the middle of a
17 channel.
It usually starts ~t the very beginning where
18 the rocks start. They did agree to move it out 350 feet
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19 or 350 yards, I believe, it was, which takes another
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20 minute and a half at a thousand rpm's to get to that
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I don't know why it wasn't done before, years
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22 ago.
23 BY MR. SCHUETT:
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24
Q
That minute and a half, kind of relate that to
25 us.
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complaint.
I wanted it moved out further, but they went
173
A It takes a minute and a half to get from the
old one to the new one at a thousand rpm's, wh~ch means'
it's such little time. The complaint was the bigger
fishermen, they had to waste time. A minute and a half
in a day is not going to hurt. And that was the biggest
as far as they would go with it.
Q Let's move on to the wave runner and
everybody's been talking about safety.
The Judge upholds the decision of the Planning
and Zoning Board. You get your permit. Walk him
through the safety. I mean, that's what everybody's
bringing up here. Walk him through what you're going to
do.
A Well, basically, I will do the same thing as
the gentleman here does.
I will inform them on certain
things that they've got to know on running the actual
jet ski or waverunner, I should say.
I will put them
basically through a little, some kind of course that I'm
still in the middle of devising, because we haven't got
started yet, because of the delay. We are putting a
little, like, small little -- what you would call a
booklet or pamphlet together, they'll have to read and
initial.
We are going to have the wavier -- which here
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174
~
1. I've got a copy of, which I would rather not put into
2 evidence, because I wouldn't want my competition getting
3 a hold of it. It's basically the rules and regulations
4 ,they have to follow when they're on the waverunner,
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5 ~hich does say they cannot jump wakes. They cannot be
6 500 feet within -- if they're within 500 feet they have
7 to be in idle speed of any land or any mass. They
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10 keep their monies. They cannot get any closer than 100
11 feet of another jet ski, even to chit-chat.
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12 We've got some very, very stringent rules laid
13 down that they have to follow. And we are going to give
14 them -- seeing's how I'm a boat captain, having been
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15 doing this for quite a while, I am going to give them a
.::
16 basic rules of the road type of class, which will be
17 information they'll know on certain things which they
18 should do and they shouldn't do and they're allowed to
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19 do and not allowed to do.
20
Q
You mentioned to me earlier that
well, do
" '
21 you remember when the deputy was up here talking about
22 that course with waverunners, do you remember that?
23
A
Yes.
24
Q
You mentioned that you're in the process --
'25 would you explain to the Judge.
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I've contacted Tallahassee.
Itve gotten
175
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1
A
I'm in the process of sending away for that.
2 I will be able to give that test.
It's the boater's
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4 the paperwork back and now it's a matter of sending my
5 ,application back, to be able to give that certification.
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Q
As far as your understanding of the rules for
7 running a waverunner business, are you required to
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8 actually give that?
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9
A
No.
I don't have to.
I' can't let them
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10 operate it at a certain age without it, but I don't have
11 to give it.
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Q
Let's talk about Shephardts. Everybody's
16
A
I'm going to deal with it the same as I deal
13 talked about the alcohol and it seems to be a concern.
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14 ,Let's first talk about the alcohol and how you're going
15 to deal with that.
i'
17 with my parasail business. No one is going to get on my
18 boat drunk, in any way, shape, or form intoxicated; it's
19 my license; it's my insurance.
20
I mean, you kno~, everybody's talking about
21 Shephard's.
I don't know what the big deal is. We're
22 looking here at the waverunners, not Shephard's.
I am
23 not Shephard's.
Just because people drink at Shephard's
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24 doesn't mean they're going to go waverunning.
Most of
25 those people who are drinking there stay to themselves
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176
1 on boats and waverunners. They don't want my
2 waverunner.
I'm getting tourists from the hotels around
3 the surrounding area, across the street, the Ramada Inn,
4 just like he draws people from. The Econo Lodge, I've
,S 'had people from the Econo Lodge go parasailing with me.
6
7
'8
So, I'm saying it's all the hotels I'll be
draining from.
I'm not getting the people that go to
that bar. The people that go to that bar, go to drink,
9 dance and whatever el~e they do. They're not there to
10 go ride on my waverunners necessarily.
If they were
11 there and they wanted to go on a waverunner, they
12 wouldn't be allowed drunk, just like he wouldn't allow
13 them, or anybody else would allow them.
14 of my business and liability.
It's specific
15
Q
The second issue that has been brought up
16 about Shephard's is, is there's a big crowd out in front
'17 of Shephard's, tons of boats and all that. Would you
18 explain to the Judge how you're planning on dealing with
19 that?
20
He's talking about not letting his people go
A
I
21 down that way Friday, Saturday and Sunday. Well, I can
22 understand that. I really can. But where I will be
'23 located, I will be at the west end of all that. What
24 he's calling a mess or totally dangerous or totally
25 unsafe; I will be at the west end of that.
I will be
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177
1 taking out the other way.
I will be doing just the same
2 thing he's doing. He's going the opposite way of all
.3 that traffic.
I'm going the opposite way of that
4 traffic.
5
I hate to bicker, but I don't believe that
6 anybody can control that boat traffic in there. One
7 more boat -- I mean, I don't know who is going to be
8 able to stop one more boat coming in, three more boats
9 coming in, five more boats coming in.
/
I
10
Q
We have kind of handled the on the beach
11 stuff. What is going to be your controlled mechanism
12 once they start?
13
We are going to have a full time person.
A
I
14
have four, full-time people now with my parasail, which
15 I'm over staffed. But I will have probably three or
16 four people just for the jet skis.
I'll be working
17 different hours. They won't be working the whole day.
18 But we will have a person actually that will be
19 monitoring those people a hundred percent of the time.
20 I won't be sitting on the beach like a lot of companies
I 21 do. There will be somebody out there running around on
22 that actual chase boat. They won't be just sitting
23 there waiting for an emergency to happen; they will be
24 out on it. They will be monitoring these people on the
25 jet skis -- the waverunners.
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178
1
Q
Now the ingress, the area to go from your
2 location out to where they are allowed to use them, do
3 you plan on using any marking system or anything like
4 that?
5
A
I have to -- the City, one of the requirements
6 from the City, was to mark an area so they could come in
7 and out, so they knew their area. And that is an idle
8 speed zone, so they have to go slow. So they just come
9 ~right in, pull up, we take it away from them, and they
10 go about their day.
1J.
Q
The area that you're going to be operating out
12
of is th~t an area where there's swimmers?
13
A Very few. What I've done is -- I've;
14
actually, made for the swimmers of Shephard's, because
it is a resort, it is also a hotel, and the boat is on
15
'I
16
the other side where I'll be.
I've actually made a
17 little swimming area so they could swim.
I put buoys
18 out so that people can go out there and swim without
19 being worried about the boats, like you said anchoring
20 ' boats and jet skis. And I've been chasing the people
21 away, and it has been working.
22 Q Now, let's talk about insurance. I mean, what
23 kind of insurance are you going to have to carry?
24 A I have to carry a million dollar policy. I'm
25 not required - - you only have to do a $300,000 insurance
. \. '.
179
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1 policy. When I looked into going to the Holiday Inn for
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the parasail, they request that you have $5 million.
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There is no other option.
It's not that you are
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required to have it, but the Holiday Inn requires it.
So what I'm required to have is $300,000 by the city, I
believe, $100,000 - $300,000, I believe, it was. But
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I'm not
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required by Shepherd's to have any more.
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Q
What happens if it gets real crazy out there,
10 Cliff, I mean, we've heard that it's bad out there.
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11 Have you ever shut down the operation?
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A
I've shut down.my parasail operation when it's
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too rough.
I closed down one holiday weekend because
14
there was just too many boats out there.
I just closed
<'.,>,
15 it do'wn.
I didn't want people out when it's not safe.
16
Q
You're giving up money.
17
A
Well, I would give up my business if someone
18 gets hurt too bad.
19
MR. SCHUETTt I don't have anything further at
'20
this time.
21
MS. DOUGALL-SIDES: I just have one or two
22 questions.
23 DIRECT EXAMINATION
24 BY MS. DOUGALL-SIDES:
25
Q
Mr. Conatser, are you aware of any changes
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that occurred, let's say since 1990, to the channel
location in Clearwater Pass?
,A The channel has been moved probably 50 to 75
yards or even further over to the
would be the south
side of the channel. The channel used to run right by
Shephard's, right by Holiday Inn, right by everything.
That's when the old bridge was there. The bridge was
moved -- or redone, which are pretty big pilings there
to go through when you go in the intercoastal, but
anyway, the bridge has been moved and the channel has
been moved down.
Q Was the channel actually redredged, do you
know?
A No, there was just plenty of water in there
because of currents going in.
Q
So the markings of the channel were moved.
what you're saying?
A The markings have been moved and made it so
that the bridge tender doesn't have to be there
anymore, which made it a lot safer, keeps the traffic
going at ~ steady pace.
It doesn't get backed up like
it used to. I used to be in the channel when it had
that, and it got very, very hectic.
Q So is it fair to say the channel is more
toward the middle of the pass?
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180
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Yes, the channel now is in the middle of the
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Q
When you mentioned the bridge tender, was
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4 there a change of the bridge from a draw bridge to a six
5 span bridge?
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It's a six span bridge now.
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Q So' it does not open and close?
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A No. The traffic is not slowed down like it
,9
used tdbe. Years ago -- when I used, to work on the
p .'
10
Crown Empress, going through that old bridge let me tell
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11 you was a job.
12
Q
So in your opinion is there a difference from
13
the old draw bridge to the new six span?
(~,
14
A Yes, there's more area to go, through.
The
15 traffic is able to go at a steady pace now, without
16 'having to back up -- the bigger boats have to back up,
17 and get in the way.
18
MS. DOUGALL-SIDES: Nothing further.
J.9
MR. CORSMEIER: Just a few, Your Honor.
20
CROSS-EXAMINATION
21 .BY MR. CORSMEIER:
22
Q
Following up on that,question~ Are you
23 planning on sending anybody through past, through all
24 the boats
25
A
To the intercoastal.
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1
Q
-- to the intercoastal?
2
A
No.
3
So you're not going to send people through
Q
4 that congested area past Shephard's to operate the
5 personal watercraft?
6
No. And there's two reasons why.
One reason
A
7 is, when the water' gets too shallow in the intercoastal,
8 it's 'dangerous.
If a person falls off, they can break
9 their neck, if it's too shallow. And even in high tide
there's still many places in that channel in that
intercoastal which I won't even parasail in there,
because if someone falls, I don't know where they're
going land.
But there's some very shallow spots in that
intercoastal, if a person does not know exactly where
15 they are, they can falloff and still break a leg.
'20
16
Q
But your parasail boat draws a lot more water
17 than a personal watercraft, correqt?
18
A
If someone falls off the jet ski, they're
19 going to draw some water to him.
Q
Yes or no?
21
A
Yes, it does.
22
Q
'Now, you applied for this conditional use
23 because you wanted to make money, right? Let's be
24 honest.
25
A
Yes, sir.
182
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183
1
Q
You wanted to make a profit on this, right?
Yes.
2
A
3
Q
And because of that interest, you asked for
4 this hearing to be expedited or your attorney did,
5 right?,
6
A
Yes, sir.
7
Q And your parasail boat, you just talked about
that, that's an operation that you've got permission to
8
9
do, right?
A Yes, I do.
Q You've already got that. Just like
Mr; Potthoff has his use permit and that is the personal
watercraft.
A Well, I'Ve got something to add to that
15 though.
16
17
19
22
Q
Well, yes or no?
A
Yes.
18
What do you need to add?
Q
20
A Well, the Holiday Inn also has parasailing
rights, they have water-skiing rights.
21
I'm talking about Mr. Potthoff.
Q
,A
Okay.
I'm just letting you know, I mean, what
23 my hotel's got and what their hotel has got.
24
Q So you already have an existing use that
you've got permission to use like Mr. Potthoff?
25
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184
1
A
Yes.
2
Q But you don't have permission -- or you didn't
have permission until the Planning and Zo~ing Board
agreed to give you the conditional use permit?
3
4
5
6
Right.
A
I had to go through the proper
channels for that.
7
Q And these four personal watercrafts you rent
they will increase the number of boats or personal
watercrafts in the Clearwater Pass area in front of
8
Shephard's, correct?
11
A A new car increases traffic.
12
Q You're going to send these folks, ifJ in fact,
13
you were to receive this conditional use, you were
14
planning on sending these folks out to the gulf,
15
correct?
.,
16
A Yes, sir.
Q
Outside of your vision, correct?
18
Like I said, we will have somebody out there
A
monitoring it.
Outside of my vision, probably because
I'll be on the parasail boat, running the parasail boat.
Q
Are you going to have somebody out on the
'chase boat monitoring everybody all the time?
A Yes.
Q That's something you plan on doing?
A
Yes, sir.
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185
1
Q
But it won't be yoU?
I'll be obviously out there running the
2
A
3
parasail boat.
It might be me at times, when I get
4
another captain to run my parasail boat.
5
.6,
Q
You're a licensed captain, right?
A
Ye~.
7
Q
But the person that's going to operate that
8 chase boat, if it's not you, it's most likely not going
9 to be a licensed captain?
A
I don't know that. One of the people who
11 works for me, too, is getting his license. So I can't
12 say that. They will be informed properly how to run
14
15
16
17
13
them and what they need to know.
Q Do you agree that there are a lot of personal
watercraft that are used in the area in front of
Shephard's, on the weekends especially?
A I agree there's watercraft being used all
18 over.
19
Q
No. Are there in front of Shephard's many and
20 numerous personal watercraft used and ridden in the area
21 in front cif Shephard's?
22
A
Well, yes, they go by going to different
23 places. They go home. They go wherever they're going.
24 They go by there all the time.
25
Q
And you agree that that gets pretty congested
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186
1 on the weekends, right?
2
A
No more than anywhere else.
Anywhere else? There are other places that
3
Q
4 become more congested?
5
A Any channel, under the bridge, any
intercoastal, any intercoastal waterway gets congested
6
7
on the weekend.
If you're going from Belleair Bridge to
8
the Courtney Campbell Causeway, 'you're going to go
9
through a lot of boat traffic.
Q
Would you agree that the area where
11
Mr. Potthoff rents his personal watercraft is a lot less
congested than the area you want to run them, correct?
A, I would say the area I'm renting from is not
more congested than his, because I will not be where
he's taking pictures of and you're showing my location.
Q Yes or no?
A
So, in other words, no.
Q
No. You don't agree that it's much more
19 congested in your area where you're going to run them?
20
21
A
No, I don't.
Q
And the location that you asked for per~ission
22 in the application, that's the Shephard's property,
23 right?
24
25
A
Yes.
Q'
You're going to rent them off of Shephard's
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1 property?
2
A
Yes, sir.
3
Q And there's nothing from keeping you from
running them anywhere on that property, correct? I
mean, you don't have to rent them on your --
4
5
6
A Designated area.
7
-- designated area. You can rent them
Q
,8 anywhere, right, on the property?
,9 A No, I have to in my designated area.
,10 QAccording to Shephard's?
llA Well, no, I couldn't run them in the parking
12 lot. What would they do with them? I have to rent them
13 in the water where I'll be located.
14
Q
Which is right adjacent to this.
I've got a
15 photograph that I actually didn't put in. This is an
16 area in front of Shephard's --
17
A
It still doesn't show my location.
Right. But it's pretty close, right?
18
Q
19
A
No, sir.
20
Q
It's not mo~e than 50 feet away.
There's a rock jetty blocking this off from
21
A
22 all these boats, all these jet skis. How do I know this
23 is Shephard's side or the other side.or the Quality Inn
24 or the Econo Lodge?
25
Q
But you agree that there are personal
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25
watercraft --
A That could not necessarily be in front of
Shephard's.
It could be in front of the Econo Lodge for
as far as I know.
Q
Now, you said you closed your parasail
operation because there were too many boats?
A
Well, it was just too much traffic, I just
didn't want to bother with it.
Q So at that time it seemed too congested to
actually operate your parasail operation, right?
I
A
It wasn't too congested. I just didn't feel
like running the parasail operation that day.
Q So now your position is that it wasn't too
congested, you just didn't feel like running it?
A I'm saying that whenever I feel that there's
too much traffic anywhere, or there's too much of
anything that is going to be unsafe with boaters out
there that just got their boat for the first day, I'm
out in the middle of the gulf and it's a busy holiday
weekend, I've got somebody up in the air dangling a
thousand feet, a thousand feet from the boat, and I'ye
got to make a turn and this guy doesn't know what he's
doing; he's not paying attention, or he's drunk. No,
I'm not going to be operating.
Q But you're not going to rent to the people
188
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189
1 that are drunk,' right?
:2
A
No, sir.
I said somebody else.
It might have
3 been you on the boat that was drinking, I didn't know.
4
Q
Or you?
5
A
Or me.
6
Q
Whoever?
7
A
Yes.
8
MR. 'CORSMEIER:
I think that's going to be it,
9
Judge. Thank you. ,
THE COURT: Redirect.
10
'11 REDIRECT EXAMINATION
12 BY MR. SCHUETT:
13
Q Those pictures that were brought in, did you
have a chance to 'look at this picture that Mr. Potthoff
14
15 put in?
16
A
Yes.
17
Are any of those pictures actual pictures of
Q
18 your location?
19
A
No, not a one.
20
Could you explairi
Well, I say not my location, that is in front
Q
21
A
22 of Shephard's which is the property' I work off of.
23
Explain the difference -- why you looked over
Q
24 at me when tho'se pictures came in and said, "That's not
25 relevanttl?
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Because right directly in front of Shephard's
190
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2 there's a whole lot of boats that anchor there, I do not
3 disagree ,with it. Where I'm located, on the west end of
4 that, there might be a few here and there.
In fact, you
5 heard the marine officer say it earlier, the marine
6
officer, whichever one it was, where I'm located we do
7
not have anchorage.
It's right in front of the place
8 and it stays there all day long. They just park their
9 boat, anchor it, and they're there all day long. This
10 goes from all the way to where that jetty ends, where my
11 business starts, it goes all the way down.
It goes in
12 front of Econo Lodge,' Quality Inn and everything else.
13 I mean, it's not just Shephard's.
14 Q So there is a jetty that actually separates
15 where all those pictures are showing --
16
If they take them from where I'll be, right.
MR. SCHUETT: Thank you. Nothing further.
MR. CORSMEIER: Can I ask him another
A
17
18
19
question.
20
THE COURT: Go ahead.
21 RECROSS-EXAMINATION
22 BY MR. CORSMEIER:
23
Q
The jetty that you're discussing, does it jet
24 out into the pass?
25
A
It goes out maybe about 20 - 25 yards into the
,
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191
1 pass.
2
Q
And then on the other side of the pass into
3 the west of there, what is out that way?
4
A
Nothing, just the sea walls going along from
5 the hotels. ,Are you talking about going west from where
6 I'll be?
7
Q
Yes.
8
A
It "s sea wall.,
.9
Q
Are you still in the pass, but you're beyond
,10 Shephard's.
11
A
I'm about maybe -- I'm not really
when you
12 say the pass, the pass is considered inside those
13
14
channel markers.
I'm in the pass, but I'm not in the
channel.:: I'm in the pass maybe 50 or 75 yards away, but
15 I've got mainly -- how can I answer this question -~ 200
'16 to 300 yards to get out of the channel altogether, 75
17 yards to get away from the building side.
18
Q
I think we clarified how far this jetty goes
19 out. Does anything prevent somebody that you rent to,
20 if you were allowed to do it, from going around that
21 jetty and joining or having someone else come around
22 there and smack one of your vessels?
23
A
What prevents them is one of my vessels 'do it,
24 they are going to lose their money and their time on the
25 jet ski. No, it doesn't prevent anybody from getting
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192
1
hit underneath the bridge.
It doesn't prevent anybody
2
from -- get one from his location to the intercoastal
3 hitting the bridge.
I can't stop an accident.
4
Q
You agree that all ,the personal watercraft
5 congestion is toward your end, rather than Sand Key?
,6
A
No, I don't.
7
Q You don't?
8
A
It's allover.
It's in the intercoastal.
9
It's in the water.
I mean, it's everywhere.
10
Q So there's more personal watercraft on the
Sand Key side of Clearwater Pass then there is on the
11
12
Shephard's side?
13 A
Are you saying those that are parked or
14 dOCked?
15
All around.
Q
16
Sir, they're everywhere. How might I say
A
17 there's more in one area and not the other. At one,
18 given time there may 30 in this area, and another given
19 time there's 40 in this area; how do I determine that?
20 I don't know.
If you want to say, do people pull up on
21 jet skis in front of my place or Shephard's or in front
22 of his place, or anything else, there's probably more
23 that do in front of Shephard's, but they're not in my
24 location.
25
Q
But you can't prevent those people from
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20
21
22
23
24
25
193
1. drinking and using their personal watercraft?
2
A No, I can't prevent you from drinking and
driving a car.
3
4
Q
Don't bring me into this. Let the record
,5 reflect, I'm making a joke.
6
7
MR. CORSMEIER: Thank you, very much.
have anything further.
MR. SCHUETT: No further questions.
THE COURT: No other evidence from the
I don't
8
9
applicant.
'MR. SCHUETT: No other evidence.
MS.' DOUGALL-SIDES: The City has one other
exhibit, which we mentioned before, that being the
city clerk's office affidavit of mailing notices
for'the surrounding neighbors. And attached to
that is the notice of the Planning and Zoning Board
hearing, some notes, a portion of plat map showing
the circle they draw, and property appraiser's
printout and a list of the actual recipients of the
notice.
MR. CORSMEIER: We already got a copy of that
somewhere in this stack.
MS. DOUGALL-SIDES: Yes.
THE COURT: Received as Government's Exhibit
Number 3.
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[Government's Exhibit No.3, Affidavit,
received. ]
2
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THE COURT: That concludes the evidence in the
4
case.
5
MS. DOUGALL-SIDES: Yes, sir.
MR. SCHUETT: Is there any rebuttal?
THE COURT: Does that conclude the evidence in
6
7
8
the case?
9
MR. CORSMEIER: That's right. Nothing further
from the appellant.
THE COURT: My final order is due within 45
10
11
12
days from today; is that correct?
MR. CORSMEIER: Can I ask you a question. The
notice that was sent out by the ~ity indicated that
13
14
15
those interested parties may speak. We have a
couple of people I think that were interested in
speaking, from the public. If we could just maybe
on the record ask them if they want to make a
statement, that's just what the notice said, and I
didn't want to have a problem with that notice
16
17
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later on.
22
THE COURT: Well, I think there's a question
23
in my mind wh~ther the notice is proper. Let me
look at the code provision.
24
25
MS. DOUGALL-SIDES: In 36.065(4) (B), it says
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the city clerk shall. give notice of the hearing in
accord with the requirements contained in article
four of this chapter and shall also give such
notice to such party. And that refers back to
public notice type of provision for zoning matters.
So that sentence is why the c~ty clerk issues the
notice she does.
THE COURT: Let me ask, does anybody wish to
speak from the public?
MR. JASMIN: I do.
THE COURT: All right.
MR. JASMIN: My name is. Guy Jasmin.
I'm the
General Manager for the Clearwater Beach Econo
Lodge. And my concern on this issue is that -- and
I don't have anything against people that operate
jet skis or that rent them, but in this case behind
Shephard's it would be a ~afety hazard.
And I mean a safety hazard by the fact that
even if he draws a quarter and puts a buoy out to
operate the jet ski out of, and let people go to
the west of Shephard's toward the gulf, he still
cannot control some of those people from coming in
and mixing around with the crowd that's at
Shephard's already.
And by placing the buoy -- what it's going to
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do with it? It's going to shift the traffic and
the boats that are anchored there further down the
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line causing some more congestion and causing
problems with the swimmers on the beach.
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I've been a manager of the Econo Lodge for six
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years.
I've been fighting the boats back there for
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the last six years on anchoring back there.
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,cannot get any help from anybody to designate a
swimming area. So my cliental when they go out
swimming, they have to wade through the boats, wade
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through the anchors.
I'Ve already had one client
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sent to the hospital because he stepped on an
anchor. And some of these boat operators and jet
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skis and personal craft operators are cocky, and
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they will push the cliental out of the way, and
16
tell them, you know, "We can anchor here. This is
18
not your property." That's correct. My property
ends at the high water tide line.
17
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But I cannot provide a good service for my
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cliental. And if what we're doing by allowing this
man to operate behind Shephard's, and taking a part
of Shephard's back yard and operating his business,
all that's going to do is shift the boats a little
further down, and make it even harder for the
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cliental of the Econo Lodge and the Quality Inn to
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there, look at all the boats that are anchored,
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use the beach, which is my property, which I pay
taxes on. And I don't even get a chance to let my
cliental use it on the weekends.
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And it affects me because a lot of people will
walk down, come into the parking lot, or drive to
the parking lot, look at the crowd that's back
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come up to the front desk, cancel their reservation
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and go some~here else. Does that affect me? Does
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that affect my property? Yes, it does. And, that's
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my concern. Any time you are going to allow to
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have more recreational in the back of Shephard's
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it's going to affect the two properties next door
to it.
13
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I'm basically tired of it. And I've been
fighting it for six years. And I haven't gotten
any help from the City, from the Coast Guard, from
15
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the sheriff, who patrols the water, from the marine
19
patrol.
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I can't designate a place for my clients to
swim on my beach. And I have some photographs also
that I brought, if you want to'look at, and they're
numbered. Do you want to look at 'those?
21
22
23
24
I'm on my property looking at Shephard's.
This is Shephard's. This is the Tiki bar that they
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198
have in the back. And I'm going to show you, these
are all the boats that are parked in back.
This fence was put there in 1994, because I
gave the police department, the Clearwater Police
Department a room on the fifth floor to do a sting
operation on Shephard's. And they were
laughing at me.
don't be
MR. CONATSER: I thought that was funny.
MR. JASMIN: The drug and alcohol agents were
there. And if you want to look back at the record,
they arrested four people for serving underage.
And that's how that fence got there because they
cannot cross with a beer from that side of the
fence, because I don't have an alcohol license.
That's how that fence got there. But you can see
all the boats in the back, sir. And if he's
operating from this side then that means he's going
to push the boats a little further back.
That's all I have to say.
THE COURT: Thank you, sir.
Anybody else?
MR. MARTENS: David Martens, 425 Lotus Pass,
Clearwater.
I am speaking as a member of the
public.
I have been boating in Clearwater Harbor
for 51 years.
I've seen a lot of changes.
I have
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seen the pass increase tremendously. The pass is
not only an asset to Clearwater in allowing boats
access to a safe harbor, and home owners along the
bay, and Clearwater, and south and north access to
2
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the gulf, which is a major liability from the
standpoint of the tremendously strong currents that
exist, particularly like a full moon, which comes
up'in three days, the current running anywhere from
7
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four to six knots.
I've also seen the boat traffic
10
because of the population increase, just get '
unbelievable, particularly on weekends.
Therefore, my feeling from the standpoint of
.personal watercraft, which I consider to be a
11
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14
person operating a high speed water-borne
motorcycle without brakes, to be just another
accident waiting to happen in a highly congested
location.
15
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And, therefore, I am against having the
conditional use permit issued or approved.
Also, I will speak now as a member of the
19
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Marine Advisory Board.
I am the Chairman. Bill
22
Held referred to this earlier, we voted unanimous
23
in our feelings that no further' personal watercraft
licenses should be issued in the Clearwater Pass
24
25
area. And that has been covered in detail earlier
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this afternoon. That's all I have to say.
THE COURT: That concludes the evidence in the
2
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case. I believe the final order is due within 45
4
days from today.
MS. DOUGALL-SIDES: That's correct.
5
6
THE COURT: My suggestion is that the parties
be required to file any proposed final order they
want filed within 15 days of today.
[Off-the-record discussion.)
7
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10
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THE COURT: The parties will have 15 days from
today's date to file any proposed final orders.
And my final order will be filed within 45 days
12
13
from today. There is a transcript being ordered by
the City, that will not affect those time frames.
MR. CORSMEIER: Does the 15th day end on a
14
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16
weekend.
17
THE COURT: If it does, it goes to the next
18
workday.
19
20
21
22
23
And unless the parties wish to make an.
addition to the written summations, an oral closing
summation, that would conclude the proceedings for
today.
MR. CORSMEIER: I'm not in favor of doing an
24
oral and a written. So if we're going to do a
written, I don't have any problem not giving an
25
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oral closing.
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MR. SCHUETT: You caught me little bit off
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guard.
I was prepared to do an oral. I guess, we
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can obviously do a written. I don't know.
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THE COURT: You're entitled to make an oral
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Well, if you do, I might.
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THE COURT:
Although, I think I've probably
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I'll
14
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put it down in writing.
MR. CORSMEIER: Can I ask a question related
16
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to the prior order that we've submitted that you
18
were going to consider. Should we address that in
19
the proposed order?
THE COURT: Yes, you can address those things.
20
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MR. CORSMEIER:
In the proposed order?
,22
THE COURT: Correct. There's an issue as to
23
its relevance which you can address also.
24
MR. CORSMEIER: Right.
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THE COURT: One other item. You need to make
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copies of that tape and provide it.
MR. SCHUETT:
I'll send a copy over there.
THE COURT:
That will conclude today's
proceedings.
[Hearing concluded.]
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CERTIFICATE OF COURT REPORTER
2
3
4
STATE OF FLORIDA
COUNTY OF PINELLAS
5
6
,'I
7
8
, I, CEIGE AMES, COURT REPORTER for the Sixth
Judicial circuit of the State of Florida,
DO HEREBY CERTIFY that I was authorized to,
and, did report the proceedings' and evidence in this
hereinbefore-styled cause, as stated in the caption
attached, and that the preceding transcript attached
hereto is a true, accurate and correct computerized
transcription of my report of the proceedings had at
said session.
9
I FURTHER CERTIFY that I am not employed by or
related to the parties to this matter nor interested in
the outcome of this action.
IN WITNESS WHEREOF, I have hereunto set my
16 hand and seal in clearwad!r, Pinellas County, ida,
this 13th day of August, 1998.
17
'18
19
20
21
22
23
24
25
:f P CEIGE AMeS
,"cl(f, 'OMMISSION' CC62\ 5,
~ -".c EXPIRES fE& U, 'Ill"
8ONO~n hI":' '
~
COMPUTER-AIDED TRANSCRIPTION
CHEETAH SYSTEMS TURBO CAT
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In The Matter Of:
AQUA WAVE RENTALS INC. v.
CLEARWATER PARASAIL, INe.ET AL
FINAL HEARING
August 5, 1998
D & D REPORTING SERVICE, INC.
915 CHESTNUT STREET
CLEARWATER, FL USA 33756
(813) 468-2002 FAX: (813) 468-2003
Original File aquawave.prt, 203 Pages
Mfn-U-Scrlpl@ File ID: 4248093365
Word IIndex in~luded with this Min-U-Scripb'
...
.......". .'. .',.'; i,', ': ,;;0. ::,:\:' dXi/ ::';,,>:t'!';-,/i, ,,:, .;.: ~~,:,.:,,; ::~ ':,' ;,?' .:'u:<:, ,';'.:,~ ';,' :;: ::' ;;. };:".;:: {t';:;:'::'~: /~y
{\ 1- .. ~ ...
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[to)
. (II)
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AQUA WAVE RENTALS INC. v.
Ct.llARWATER PARASAIL, INC.ET AL
FINAl. I1EA1UNG
August 5, 1998
Pago 3
(I] STATE OF FLORIDA
OIVISION OF ADMINISTRATIve HEARINGS
II) INDEXTO PROCEEDINGS
(Z) PAGE LINE
(3] PROCEEDINGS ...................,..., 5 1
OPENING STATEMENT BY MR. ZIMMET ... 10 lB
(4) OPENING STATEMENT IJY MS. DOUGALL-SIDES 22 22
OPENING STATEMENT BY MR. SCHUETT .. 2B 19
15] APPELLANT'S WITNESS. WILLIAM C. HELD, ...398
JR.
IGI DIRECT EXAMINATION BY MR. ZIMMEr ._ 39 10
CROSS.EXAMINATION BY MS, DOUGALL-SIDES 5B 16
[7) CROSS.EXAMlNATION BY MA. SCHUETT .63 22
REDIRECT EXAMINATION BY MR. ZIMMET 80 17
IS) APPELLANT'S WITNESS. DEPUTY DAVID ...,... 83 1
LrrrLEJOHN .
(91 DIRECT EXAMINATION BY MR. CORSMEIER ....... 833
CROSS-EXAMINATION 0'1" MS. OOUGALL-SIOES B9 15
(10] CROSS-EXAMINATION BY MR. SCHUETT .. 91, 19
REDIRECT EXAMINATION BY MR. CORSMEIER ..... 96 5
[III APPELLANT'S WITNESS - TERRY L. NOLL ....... 985
DIRECT EXAMINATION BY MA. CORSMEIER .......987
(12] CROSS-EXAMINATION BY MS, DOUGALL.SIDES ... 1082
CROSS-EXAMINATION BY MR. SCHUETT 109 20
(13J REPONDENT CONATSER'S WITNESS. GERALD ... 113 25
FIGURSKI, ESQUIRE ,
('4/ DIRECT EXAMINATION BY MR, SCHUETT 114 2
DIRECT EXAMINATION BY MS. DOUGALL.SIDES .. 120 12
[IS) CROSS-EXAMINATION BY MR. ZIMMer .. 122 1
APPELLANT'S WITNESS. ROBERT G, POTTHOFF. 1296
[161 DIRECT EXAMINATION BY MA. COASMEIEA ...... 129 8
CROSS-EXAMINATION BY MS. DOUGALL-SIDES .., 147 18
(17J CAOSS-EXAMINATION BY MA. SCHUETT, 151 8
REDIRECT EXAMINATION BY MA. COASMEIER 166 11
[IBI RECROSS. EXAMINATION BY MR. SCHUETT ... 168 14
APPELLANT RESTS .................. 169 '5
111l] RESPONDENT'S WITNESS. CLIFTON H. ... 169 17
CONASTEA
(2QJ DIRECT EXAMINATION BY MR. SCHUETT 169 19
Pago 2 DIRECT EXAMINATION BY MS. DOUGALL-SIDES .. 179 23
(21) CROSS-EXAMINATION BY MR, CORSMEtER ... fSt 20
REDIRECT EXAMINATION BY MA. SCHUETT ,.189 11
122] RECROSS-EXAMINATION BY MR, CORSMEIER .190 21
HEARING CONCLUDED ................ 202 5
(23J CERtiFICATE OF COURT REPORTER ,... 203
[241
[25]
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(2)
(3]
14)
[5] AQUA WAVE RENTALS, INC"
Appellant,
16)
vs,
Case Number: 98.2685
m
CLEARWATER PARASA/L, INC.,
(S] and CITY OF CLEARWATER,
AppollooSJRospondenls,
FINAL HEARING
112]
[13] ,
BEFORE: HONORABLEJ,LAWAENCEJOHNSTON
(14) Admlnlstratlvo Law Judgo
(15] TAKEN AT: ,CIly Manager's Ollleo
112 South Osceola Avonuo
Clearwaler, Florida
, August 5, 1998
commencing at 1 :00 p.m.
Concluding at 5:30 p,m.
[16]
(17) DATE:
{IO] TIME:
[Ill]
REPORTED BY: CEIGE AMES
(20] Court Reponor
Notary Public
[21] Stata'ol Florida at largo
[22]
,O~:
1251
(9]
lID]
[II)
112]
[13]
(141
(IS]
(IS)
(17)
, (IB)
119)
0 (201
[21]
[22)
[23]
[24J
{25]
(11 APPEARANCES:
f21 On bohall or the Clty 01 Croarwator:
13] LESLIE K. DOUGALL.SIOES, ESQUIRE
Asslslnnl CIly Al1omoy
112 Soulh Osceola Avenue
Post afrlce Box 4746
C!onrwalor, Florida 33756.4748
(4)
[5]
[61
m
(S]
Pogo 4
On bohall 01 tho Mr. Pollhofl:
AlAN S. ZIMMer, ESQUIRE
JOSEPH A. CORSMEIEA, ESQUIRE
Tow, Zlnobor, Barnes, Zlmmol & Unlce
2655 McCormick Drive
Clearwalor, Florida 33759
(I] INDEX TO EXHIBITS
l2/ PAGE LINe
131 APPELLANT'S EXHIBIT NO.1, MINUTES, ...... 46 7
[41 BOARD'S EXHIBIT NO.1, JOB DESCRIPTION, .. 59 13
[5] APPELLANT'S EXHIBIT A, STATISTICS, ...... 1032
[6] EXCERPTS FROM THE CODE. OFFICIAL ".127 12
RECOGNITION
(7J APPELLANT'S EXHIBIT NO.4, PHOTOS, .. 145 20_
[BI GOVERNMENT'S EXHIBIT NO.3, AFFIDAVIT, .. 194 1
[91
)10)
(11]
(12]
(13J
(14J
lIS)
(16]
(17J
118]
111l]
(201
(21)
!221
[231
[241
(25]
On bohall 01 Mr. Conalser:
CLAY SCHUETT. ESQUIRE
Johnson & Blakely, Pope,
Bokor, Ruppet& Burns, P.A.
911 Choslnut Stroet
POllt Offlco Box 1368
Clearwater, Florida 34617
D & D REPORTING SERVICE (815) 468-2002 Min-U.Suipt0
(3) - Page 4
11INAL IIEAJUNG
AUR\lst 5, 1998
AQUA WAVE RENTAlS INC. v. .
d..EARWATER PARASAlL, INC.ET AL
Pogo 8
Pogo 5
[II nollcei'! antl the attachment to that whJch the clerk
(2) dcvclopllln the course of maillng the ;00 foot
(3] nollces to ncl~hborln~ property owners.
(4] THE COURT: Should tl1:1t be a part of those
{5) matters or would that be an exhibit that you would
IBI be presenting during the hearing?
(7l MS. DOUGALL-SIDES: I could enter it us an
{B] exhibit It W:lS from the clerk's me and was not
[9] submllled to you as part of the record.
(10] THE COURT: If It's to the extent thatH
{II] ml~ht really be relevant, why don't )'OUjU5t
1121 present It during your case as one of your
1131 exhibits,
{141 MS. DOUGALL-SIDES: Very well.
[151 MR. SCHUETI: 111e only other thing there is
(16] amI this Is I have a tape -I'Ve already received
[17] a tape of the he:ulng.1 have a videotape that was
[lB] taken off the television of the hearing, and did
(19] not know, if there is an objection I would like to
[20} go ahead and present that,ll might be casler for
121) you, when you're reviewing that to have the tape.
[221 It's going to be the same tiling as recorded, It
[231 just has the visual also. It's about an hour und a
[24] half long hearing. Do you have an objection?
[25] MR. CORSMEIER: To hearing it today?
(I] MR. SCHUETI: No, not to hearing it today.
[2] For him - for Mr.Johnston when he goes back.
(3) MR. ZlMMET: I don't have an objection if you
(4) have a copy for us, to make sure It's the same.
(51 MR. SCHUETT: 111at's one thing I do not have
IB1 at this point. this is the only copy that I do
{7} have. Is that going to be a problem, Mr. Zimmet?
IB] MR. ZlMMET: We have a copy of ever}1hing else
[g] that the hearing officer has. I don't have an
[10] objection to it, but 1-
[II] THE COURT: Why don't you arrange to makc
[121 copies and then scnd me one.
[13) MR. SCHUETI: Ok.'\y.
(14) THE COURT: Any other preliminary matters
[151 before opening statements? Does the appellant wish
I1BI the make an opening statement?
(17] MS. DOUGALL-SIDES: Your Honor, did you wish
[19] to discuss the rules of sequestration of witnesses
119J at this time?
[20] THE COURT: I guess, we could put on the
[21] record - I forgot about that. I have been advised
[22] by counsel that eUher the rule is being invoked
[23] and have agreed that the witnesses will wail
[24] oulslde the hearing of these proceedings untlllhey
(25) arc called as witnesses; am I correct on Ulat?
11] P-R'()-C-E-E.D-!-N-G-S
(2) THE COURT: Is everyone ready to proceed?
[3] MR. CORSMEIER: Yes, sir.
{4J THE COURT: Let's go on the record, We're
[51 here for Ule final hcarJn~ of the - style of
[Bl he;aring entitled Aqua Wave Rental,lne"Appellanl
[7] versus Clearwater Para5:\lI, Inc., and City of
[91 Clcarwater.111ey've beclllisted ns appellees, but
[ll] I think somewhere technically under the code they
110] arc called respondents. So It should read
Ill] respondents, It's Division of Administrative
(12) Hearings, Case Number 98-2685.
{13f My name isJ. Lawrence Johnston,
[14) Administrative L'\w Judge from the Division of
[151 Admlrustr.lllve Hcarings, and I'Ve been assigned 10
[lBI serve as the hearing officer in this proceeding
117] under the code.
lIB] Would the attorneys for the parties make their
119] appcarance for the record at Utls time.
[20] MR, ZlMMET: Yes, Ulank you. I'm Alan Zimmet,
(21) With me tod,y is Joseph Corsmeier.We're here on
122) bchatf of.\qua Wave Rental.
[231 MS. DOUGALL-SIDES: Leslie Dougall-Sides on
[241 behalf of the Respondent, Board of Planning and
[25] Zoning.
;~
pago 9
PRgOG
II] MR. SCHUETT: And my name is Clay Schuett,
[2] And I'm here on behalf of Cliff Conatser. I don't
(3) know what they officiaHy call him in the record.
14} THE COURT: As I said, he was referred to as
IS] onc of tile appellees, bUl, actually, technically
[61 he's one of Ule Respondents,
,m MR. SCHUETT: IUght, the Cleanvater Parasall
[91 is.
[9] THE COURT: Yes,Also the appellee would be
110] lhe applicant in the case as I understand it.
Ill] MR. SCHUETT: Yes, sir, that's correct.
112J THE COURT: Arc there any preliminary mallers
(13) thal should be put on the record at the outsell
[141 MR. SCHUETT: ( think there is one preliminary
[151 area matter, and it goes to the appeal and this may
[161 not be the proper time - tile question of whether
[17] Mr. POlU10ffwould under Section 36,065 have an
[lB] interest and therefore having the right to appeal
1191 the decision. Now, I don't know if you want to
[20] address tllat at this point, or if you would like to
(21] get further into this before we address that.
(22] THE COURT: TIus goes to tile issue about
[23] UlInking the hearing was continued and so forth; is
[24J Ulat correct?
(25) MR. SCHUETT: Not so much as in just to the
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Paga 10
Poge 7
i:
('
I,
111 MR. SCHUETI: Except for obviously the
121 appellant and Ule respondent.
[31 THE COURT: Each party can have a
141 representative who is a non-attorney representative
[5] who would not be the under the rule,
(6] MR. ZIMMET: We arc including those people we
l7J intend to call as witnesses as we discussed before
[9] the hearing, members of the public are normally
[9J allowed at a time to speak. And there arc members
[10) of the public here, who want to watch the hearing
[1 I] and I think who want to speak, but we don't intend
[12] to call them as witnesses.
[13] MR. SCHUETT: 111at's correct.
[14] THE COURT: I assume you've instructed your
[151 witnesses and they arc waiting outside.
[lGj MR. SCHUETI: Yes,
[11} THE COURT: Opening statements.
(lBI MR. ZlMMET: Thank you. Again, let me just
[1111 introduce you to the folks on my side of the table.
[201 Mr. Potthoff Is the owner of Aqua Wave Rentals. I Ie
[211 is our client and the appellant In this proceeding.
[221 And then Mr. Corsmeler and myself arc with the law
(231 firm ofl'ew, Zinobcr, Barnes, Zimmet & Unlce, and
(241 we arc representing Mr. Potthoff and Aqua Wave
[25l Rentals in this malter.
II) definition that is set out in the code of whether
[21 he is a party of interest as the code would suggest
[31 that he is or would require. It says to appeal '
14J party interest, the property owner, the city
151 manager, or any person who would sufrcr an adverse
161 effect to an interest protected by the Land and
{7] D(:velopment Code,And at this point without any
[81 further evidencc, Il'S my client's position that we
[91 don't know what adverse impact it would have to his
[101 interest. Mr. Potthoff also rents waverunners in
["1 that same area. '
(12] THE COURT: That :would be a matter for
[131 evidence.
(14] MR. SCHUETT: IUght.
lIS] THE COURT: In any event, we will procced,At
(16) Ule out5el as required by the code, I will at tills
Ill] time receive the cases and exhibits that were
IIsJ presented before tile Planning and Zoning Board.
[19) And I'm assuming that I have all of those tlUlt were
[201 sent with the referral of the appeal; is that
[211 correct?
[221 MS. DOUGALL-SIDES: Yes, Your 1I0nor.1 did
[231 have one additional item from the clerk's file that
[241 I would like to enter in the record, If Ulere is no
[25] oblectlon, which would be the affidavit of maillng
\.~
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D & D REPORTING SERVICE (813) 468.2002 Min-U-Sc:riptm
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AQUA WAVE RENTALS INC. v. 111NAI. IIRAIUNG
cti!ARWATER PARASAIL, INC.ET AL August 5, 199B
.. - ...... -- _~'c'. __ __0-.
Pogo 11 Pngo 14
(II This Is an appeal ofa condlLlona( use that III going 10 be applicable Is 36.065(2), which dcnm:s
12I WllS approved for outdoor commcrcl;d recreation {21 a party In Interest.To Include any person who
~ 13] enterlainment to allow the rental of up to four, 13] will surfer an adverse arfectto an Interest
14] two person, whal arc called personal watercrafts (4) protecled or furthered by the I.and Development
(5) and a fiat! fishing boat. I.et me just 5L1te right (5) Code,
(B1 up front that as part of this appeal we arc not (61 My client was actually grandfalhered in under
f7I objecting to the flats fishing boat, but arc f71 the 1~1nd Development Code to operate a rental of
IB] objecting to the approval to allow the rental of tal personal watercrafts In an area not too far from
('Il] the four, two-person, personal watercrafts. 191 where tltis proposed conditional use Is.And so
110) TIle Planning and Zoning Hoard approved this 1101 that section Is probably relevant with regard to
,\.. (II) conditional use application on May 19, 1998,That [' II your determination as to whelher he Is a party In
'( (12) comlJtional use application Was submitted by a /l2) Interest.
113] William Shephard and Clifton Conatser for operation (13) TIle hearing procedures you're probably
(14] at a property located at619 Gulfvlew Boulevard. 1141 familiar with, they're provided In that same
lIS) Just 50 you're aware, that's allhe south part 1151 section, Section 36.065.And I don't think there
(161 of Clearw:lter Beach near the bridge that leads over ['61 Is any doubt that under that section We filed a
{In to the Sheraton Sand Key, and lhe Sand Key area, {In timely appeaJ.111c review court criteria arc set
(10] Sand Key Beach, which arc on the south side of the lIB) forth In 36.065(G).And I just want to paraphrase
(lD) bridge.TItis Is on Ute norlh side ofthe bridge in PDl some of the subsections of that section. Your
(20) Clearwater. In what Is called U1e Clearwater Pass {201 decision Is to be guided by the city comprehensive
(21) area, whJch leads out Into U1e gulf.And on the [211 plan, the relevant portions of the code, and the
{22) other cnd of the eastern end is the intercostal (22J estabUshed case. r tltlnk I proVided rou wHh the
[23] waterway. 123) relevant pOl' Lions of the code.And we wiJI discuss
{24] TIle issue as you have stated is whether the (24) some C:lse law during our preSenL'ltlon,
[25} Planning and Zoning Commlssion decision to grant {251 The burden Is on us to show that the decision
Pago 12 Pago 15
['} the conditional use permit to Clearwater ParasalJ 11] of the Illannlng and Zoning Board cannot be
{2] should be: suslained. [2J sustained upon the evidence before the board and
[3] First,l think it is appropriate that we take (3] berore - that Is presented to you loday. Or that
[4) a look at the appllcable provisions of the (4) the decision of the Planning and Zonlng Board
IS] Clearwater Code,l1le Slandards for approval of 15) dep:Jrts on the essential requirements of the law.
Ill} Utis conditional use application arc contnlned In [il] It is our position that the Planning and
[7J Section 41.033..\nd that section provides, and [7J Zoning Board's decision cannot be suslalned; based
[OJ I'll read the provisions that We think arc 16] upon the: evidence that was presented to the board
[91 applicable, and that we've cited in our notice of (91 or the evidence that you arc going to hear today,
/') {lDI appeal. It says: "A condltlonal use shall be 1101 and departed from the e,>sential requirements of
1111 approved by the: board only upon determination that [11] law. [lven though we only have to meet one of those
\\.l'l"J" [121 U1e application and evklence presented deariy [12] criteria, we lhlnk we're going to meet both.
[131 indic:1t~ that ..." and then U\ey give the criteria. 113] I think when you're done hearing all or the
[14} The criteria tlmt we have cited in our notice (14j evidence, the evidence will show that the applicant
(151 of appeal Is Number 4 and Number 6. Number 4, 1151 did not clearly establish that his proposed
(161 says: 'The use shall be consistent with the [16] conditional USe 15 consistent Will1 the community
(H) community welfare and not detract from the public's [m welfare, docs not detract from the public's
116) convenience: at the specific location." Number 6, [IB] convenience, and Is compatible with the surrounding
[191 provides that: 'l1\c usc shall be compatible with 119] area.
~) surrounding area and not impose an excessive burden (20) An important [act Js that the 111anning and
(21) or have a substantial negative impact on [:<:11 Zoning Board when they considered tltis Item, U1ey
122) surrounding or adjacent uses or on community [221 did not have two Important things that will be
(23) facilities or services." [23] available to you today. First of all, they did not
1241 It Is Ihose two provisions that we believe the [24] have the testimony ofWlJlIam Held. Mr.lleld is
{25/ applicant did not present evidence that dc-Jrly ~ the 10ng.[Crm City Harbormaster on the verge of
Pago 13 Pogo 16
(I] indicates compliance WiUi those two provisions, and [II rellring In a week or so. Defore being
" (2] that the Planning and Zoning Board did not have [21 IIarbormaster, he was Assistant I Iarbormasler, and
(3] competent substantial evidence to support their [3] before that he was in the Coast GU;lrd, So he has a
[4) decision on U10se two criteria. (41 101 of experience: in marlne matters and safety, He
[S) TI\(: maIn Issue, both in UlIs hearing and also (51 was unavailable for that hearing. lie requested
[6) the issue U1at was discussed in front of the (61 Ulat the matter be conUnued.111c applicant
[7J Planning and Zoning Board, was safety.And UIC [7J requested for economic reasons th~t It not be
[8] concern for safety by allowing addillonal personal (61 continued, and tile Planning and Zoning Board
191 watercraft to use this area of Clearwater Pass. Ill) decided to hear It.
[10] And L11ere were some qucstions as to whether safety (10) So while they had a memorandum from Mr, Held,
[III was to be a consideration. (III Uley never got an opportunity to hear his
[12) And I do want to also point out Section 35.01, (121 testimony, which you will get an opportunity to
(13) of thc Land Development Code which sets forth the (131 hear.
(14J purposes of the development code as a whole,And [141 I anticipate tllat Mr. Held wllllestify thai
(151 it says; "Its purposes arc to protect, prOVide [IS) he recommends that this conditional use nol be
(161 for, and promote: the public safety, health, [16] approved because he is concerned about safety.
(HI convenience, comfort and prosperity and general [m He's concerned about tllC safety aspect because this
tJ IIBI welfare of the re:sidents and propeU?c; owners of the [16] Is II very congested area,
111l] city. And to enhance the qualify of e of aJJ (191 And to give you a little history, U1erc has
l2O] residents and property owners of Ule city." (201 been two prior applications. slmllar applications
{21] THE COURT: What is that section number? 1211 for rental of personal watercrafts from the same
(22] MR, ZlMMET: That is Section 35.04.We've got {221 arc:!, the same address in lhe past, in 1989 and
(23J certified copies of those secUons to provide to 123) 1990, both Were denied. And Mr. Held wlU testify
[24) you. 1241 that they were denied for safety reasons.And that
(25) And then I ~uess the other seclion that is [251 the satetv concerns have only increased since that
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AQUA WAVE RENTALS INC. v.
aEARWATER PARASAIL, INC.ET AL
Pllgo 17
'II time frame.
[21 The safety concerns have Increased for a
131 couple of reasons. One, Dunedin Pass has closed,
[~] Which means that Clearwater Pass Is becoming even
[5] more of a major thoroughfare between the
(6) Intercoastal and people who want to get om Into
(7] Un: gulf.
18] Secondly, Ulere has been ;1 new bridge that has
(ll] been built over to Sand Key.nlere used be to a
lID] draw bridge. Now there's a high standing fIXed
II II bridge. so that It can actually take more boat
[t21 lJ'affic, boats WiUl, you know, the higher masts
[t31 don't have to wait for the bridge to open, So he's
[I~I going to testify that the area is even more
[15] congested than ever, He will also'testify that
[16] there have been no other conditional use approvals
1171 granted In Ule pass area for personal watercraft
118] under the Land Development Code,
(19] His opinion is supported by sL1tisllcs Ulat he
1201 cited both In his memo that was presented to Ule
(21) MarlneAdvisory Board and also statisllcs that will
{22] be provided to you by various law enforcement
[231 agencies during this hearing.
[t~1 Those stalls tics show that pel'sonal watercraft
(251 account for 36 percent of the all vessel accidents
Pago 10
(I) in Florida, yet, they only account for roughly
121 9 percent of the total boats registered. So
(3) compare Ule number of boats that arc actually
(4) registered and the amount of them that arc personal
(5) watercraft compared to how many accidents Involved
[6] personal watercraft, and It's way out of line.
(7] Also the statistics wlll show that generally
(B] accidents Involving personal watercrafts more often
(9J result In physical Injuries. For the obvious
[to) reason,l'm sure that we could all conclude that
[t II people who arc driving personal watercrafts arc
[t21 less protected than those people who arc operating
[131 vessels,
[t~J His opinion. Mr. Held's opinion, is also
[151 supported by Ule Marine Advisory Board. And
[IGl Mr. Held will testify a little bH about the
1171 experience of those people on the Marine Advisory
lIB] Board.They recommended denlal of this conditional
119] Use applicallon.
12C) Also the record that you have indicates that
121] the Pinellas County Sherlrrs Office, which Is
(22) responsible to patrol 1I1is area by vessels, oppose
[23] the conditional use approval.
[2~] We think when the hearing Is concluded It will
(25) be, obvious tilat the Planning and Zoning Board came
Paga 19
)IINAI.IIEAIUNG
AUbJUst 5, 1998
pngo 20
[tl Mr. Zimmel kind of go lnlo some of the past, but I
[21 think there Is a poinlto be made aboutlhe 19911
(3] decision that Is relevant, that it pht)'s Oil the
(4] different factors, much dlffen:nt factors.
IS) And when you use lhat -I don't see where the
IGI relevance of Ute 1990 decision comes into play
(7] here, you know,TIle decision, you know, signing
[GI tile codc, making the ordinance on the statistlcs,l
[Ill think Is fine; slartlng to now rely on a past
(tOI decision with completely different facts and
1111 drcumstances, I don't think it Is re]evant.And I
112] don't believe H ought to be heard or that that
1131 1990 decision ought to be able to come Into the
114) record or be referenced.
ItS) THE COURT: Wen, Is It something that I
(16) should be able to refer to.And It can and should
[171 be in the record, at least for me to be able 10
[IBJ decide how relevant It Is. I will have to compare
[to; those facls to these facts ;tnd see what use
[201 Mr. Zimmet was making and gO from there.
[211 MR. ZlMMET: 111e point I'm trying to make here
[221 is Hearing Officer Conn looked at tile issue of
(23] safety and the criteria which - well, I think the
(2~1 numbers are changed. They're the same criteria
125] that wc're talking about today. And he considered
Page 21
III safety to be parI of that criteria and the basis
12l for his decision, And thal's the use I want to put
PI tilere Is really from my Inlerprelation of the
t~1 Code's standpoint.
151 THE COURT: Do you have case numbers for those
[61 cases handy?
[71 MR. ZlMMET: I actually have a certified copy
[6] from the clerk's office.
[0] THE COURT: Will It be presented today?
110] MR. ZlMMET: Yes.
[II] THE COURT: You also mentioned:1I1 '89 case.
(12] Is that also going to be presented?
(13] MR. ZlMMET: 'ThaI didn't go 10 a hearing
[14) officer, only the 1990 went to a hearing officer,
[15) THE COURT: Okay.
[161 MR. ZlMMET: And I anlidpate In this hearing
[171 that the applicant is going to atL'lck my client
[tBI based upon what his Interest is in Ihis proceeding.
[to] And we will be up.front. Obviously, one of my
[20] client's Interests is economic, just like
(2tl Mr. Conatser's Interest In pushing 10 not continue
[22] the hearing, pushing for an expedited hearing here,
(23) and making titls application as economic.
[N) But my client Is also concerned about the
125] safely of the people th:lt he rents lo,And he's
Page 22
[II to an incorrect decision because they Incorrectly
[21 interpreted Ule criteria that arc contained In
131 Section 41.033.111ey were advised by both the
[4J applicant and It appears also by the asslsL1nt city
[51 attorney present at Ule meeting, Ulat safety was
(61 not contained In the City's criteria.
m We think it is preuy obvious that safety is
[81 part of the criteria:The general purpose of the
(a] Code Includes as its Hest purpose public safety,
(10] And the standards In 41.033 lodlc-.ile that we're
(II) talking about things such as consistent WiUl
112] community welfare,We suggest that welfare
113] Indudes safety. It talks about compatibility, not
114] having a negative Impact on surrounding or adjacent
[15] uses or on community faclllties. Clearw'.iler Pass
(16) Is essentially a community facillty.Il's
tl71 someUling thaI the City maintains, a channel
[I8J through Clearwaler Pass,
[wJ nut even more than that, Utis Issue has
[201 already been decided, there was a previous decision
[211 from the 1990 appllcallon, By that time, I
('221 believe, you guys were called hearing officers and
[23] there was a hearing omcer by the name of Donald
1241 Conn. .
~ MR. SCHUETT: At this time, you know, I ]et
D & D REPORTING SERVICE (813) 468.2002 Min-U-Scriptoo
111 not the only one that's concerned ahoutlhat.As I
(21 said Mr. Held, and the Marine Advisory Board, lhe
(31 sherifrs omce, lllld a number of the neighbors and
1"1 people who live in the condominiums, and some of
151 the hotel managers who have hotels In lhe area,
161 spoke out at the Planning and Zoning Board,And I
(7J thlnk some of them arc here today hoping that they
laJ will get an opportunlty to speak to you.
(0] Basically In summary, il will be our position
(10) at the conclusion of this hearing that the Planning
[t II and Zoning noard did not have competent subslantlal
[121 evidence to support its decision that it made.
[13] 11lere was not sufficient evidence presented for it
[141 10 conclude 11lllt, dearly, public safety is nOl,
[15] again, going to be a problem with tillS condilional
[16] use approval.
[t7] And at the conclusion of thc hearing, we will
(ta] request thaI the decision of the Planning and
(191 Zoning Board be reversed,
1201 THE COURT: Opening statement from the
(211 Respondent at this time.
(22] MS. DOUGALL-SIDES: Yes, on behalf of lhe
(23) Planning and Zoning noard.TIu: decision In Ihls
('24) case of that noard has becn appealed by a rival
[25] business owner. who the record and evi!lence todin:
(6) Page 17 . Page 22
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AQUA WAVE RENTALS INC. v.
ClEARWATER PARASAIL, INC.ET AL
11INAI. IIEAltING
August 5, 1998
(tl will show 15 somewhat down the beach from the
12] applicant's proposed slte.The appellant has
13] apparently had his personal watercraft business
I~] since December 1997 :nle business Itself was
15] grandfathered in some years back, apparently, when
(6) the new Land Development Code was adopted, it \'I;IS
{7J already exisllng.At the hearing before the
(01 Planning and Zoning Doard ~
till THE CQURT: Excuse me. When was that? When
(101 was It grandfathered?
It II MS. DOUGAll-SlOES: I believe there is in the
(12J Marine Advisory Board minutes,there's mention by
II3J Harbormaster IIeld that It was in 1980.
II~] THE COURT: When did you say your
l'S] underst.1ndlng was that the current owner of the
l'B! business became the owner?
{t71 MS, DOUGALL-SIDES: December 1997,ItllInk
(ISI that Is also in the Marine Advisory Code.
(t91 THE COURT: When you say "current owner" are
[201 you referring to Aqua Wave Rentals, Inc.?
(2tl MS. DOUGALL.SIDES: Yes.The Planning and
1221 Zoning Board heard from the applicant and his
[131 counsel, and received a staff report with Ule
(2~J application, which Is of record.TIle staff report
125] at Page 4, did Cmd that the rroposed use complied
Pugo 23
Pllgo 26
[tl 'Ille IIJannlnH and 1.0nlnH Uo<ud did vute
[21 unanimously to approve this comlitlomtl \Ise.'l1le
[31 record renects the Hoard placed conditions on
(4) these to merit safety concerns. And that's In the
(5] board minutes renecllng the approval.
16J There were several condlllons,lIours of
l7J operation were 9:00 a.m. to dusk.Jet skiers were
(01 required to honor the existin~ no-wake zone and
191 would engage in Idle speed in oruer to either
1101 access the gulf or beach area. One boat or jet ski
(III wlll be available to act as a chase boat and to
[12] respond to emergl.'flcles or offcr assistance to jet
[13J skiers,The applicant will comply with state law,
114] And buo)'s would be placed to identify the beach
(ISJ startlnH arca for these crafts and the route
{16J between open water out in the gulf and thc beach
1171 starting arca,And the operation woulu be limited
1101 to four jet skis and one flats boat, What I think
II9j I heard today, the appellant Is no longer objecting
1201 to the nats boat aspect of this.
{211 Again, the Doard would state that the evidence
[22l will show the appellant is not within either the
[23] 200 foot notice area which is required by code, or
[241 the more liberal 500 foot notice area which the
[1SI city clerk actually notifies the dIfferent property
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{I] with all of the SL1ndards for approval that arc in
121 the Land Development Code, went through some
{31 discussion of each of the criteria. That planning
[41 document is thus far unrebutted In the record.
[51 TIle Planning and Zoning Board also heard from
(6] a number of objectors. who were mainly neighboring
(7J condominium owners at the Contincntal Towers which
181 is nearby the sltc,
19) 111e Doard would submit Uut the record win
110) show that the objections of the neighbors mainly
II I) were oriented toward other activities that take
112] place on thc Shephard's sitc, such as. noise from
(131 bands that play at the outdoor facilities; there
Il~1 are somc outdoor bars,There is boating traffic
(I51 which comes and goes, comcs up on the beach and
(16) people get out and go to various activities at this
1171 sitc as a whole, and that it did not specifically
IlOl address tllc proposed jet ski rental use.
(IDI TIIC Board also did receive a memo from
[201 I1arbormastcr BlIlllcJd which attached some Marine
[211 Advisory Board minutes.TIlc Board would arguc that
[221 it did consider those items. It did not continuc
(23] thc matter. It did hear the case when It had been
[24] agcml.1-cd.TIlC applicant was present. TIle
(25] appllcant did not want to continue It,The
[IJ owners.TIlls is not particularly required by the
[1] code, but we did it.
(3) 11lC Board feels the evidence wiU show the
14) appellant's interest Is solei)' nan.interested, and
IS} that he would not qualify as a person who would
{61 suffer an adverse effect to an Interest which is
l7J protected or furtllercd by the L1nd Development
[B] Code, the cnd of that code docs not further
[9] strictly economic interest property owners,
(101 111e appellant has appcaled oniy on two out of
(Ill tile six general strtndards being consistent with the
(12] community welfare standard and the compatibility
(t3) with the community welfare standard.
(14J TIlc burden Is on the appellant to show that
115] the decision of the Board could not be sustained by
116] evidence that's before the Board and before you
117} today, or that the decision departs from essential
lIS) requirements oflaw.lllc Federal Zoning District
1191 here is Resort Commercial 28, or CR 28.And
[101 Section 40.101, which I have a cerlified copy of,
{211 describes tltis district. It's a mixed multifamily
[221 residcntal hotel. It has somc restaurants and
[23] retail uses. And It is described in the Code as
(24] "Creative to provide a high density
(?5) resort/residential district with complimentary
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Pago 28
(I) appellant was not present, nor did he submit any (IJ tourists associated retail and service uses. And
121 written materials opposing the application. (OlJ what Is called outdoor commercial
[3] TIle Marine Advisory Hoard which had currently [3] recreationlentert.1inment", which this application
(4] met and considered the matter prior to Planning and 14] was for, "Is allowed only as a conditional use."
15] Zoning Board's hearing, voted to recommend denial 15] We think the evidence wliJ show that this use
{BI to tile Planning and Zoning Board on the basis that 161 is compatible willi that mlxed.use character
{7J this activity would Increase commercial boating {7J district wltich is tourists. It has hotels. It has
(BI nclivlty in Clearw.ttcr Pass and the area and affect (81 other let ski rcntal businesses including the
191 safety. 191 appellant. And, In fact, tile mere distance of the
(101 11lC evidence will rcnect that the Marine ItOI appellant's business In the very same area, argues
(1 II Advisory Board deals with marine operations and (111 that he's compatible witllthe district, he's there.
(121 regulatory matters and docs not possess the (121 I think the evidence will show that the
(13l authority to rule on conditional use applications It31 Planning and Zoning Board's decision was bascu on
(141 or zoning mallers.And their concerns were not [141 valid evidence bcforc them there was competcnt
(15) necessarily dIspositive of the Planning and Zoning (t51 subsl:mtial evidence, both in the record before the
(IBl Board's action. (16) Board and to bc used today, which would support the
(171 The codc see lion which addresses the Marine (171 Hoard's decision,
(IB] Advisory 80ard, See lion 2,199, recites that the [18) THE COURT: Opening,
(19) Marine Advisory Board shall initlale studies and [t9) MR, SCHUETT: Ycs.As I said before my name
[20] make: recommendations on marine matters of the city [20l Is Clay Schuelt,And I represent Cliff Conatser
(11) to the city commission. And to be responsive to [211 who is the applicant in this case. You always look
i22J the city commission on marine mallers referred to [22] for a theme when you Hrst hear about a case, and (
123] thc board by the city.TIlere is nothing in there [23] think therc's a few here,
124] about adviSing the Planning and Zoning Board on (24) First of all, as Mr. Zlmmet said, it is our
(25] zonln~ the land in.this mattcr. l?21 contention that the -the theme (n this case Is
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AQUA WAVE RENTALS INC. v.
al!ARWATER PARASAII., INC.ET AL
Pogo 29
FINAL ilEAIUNG
August 5, 1998
pugo 32
[11 that the appellant, Mr. Potthoff, lIoesn't want any
[2] economic competltlon.Anllthls Is purely
[31 economlc;tI.Anll I think they s:l.ill, yes, we agree
[.] H Is purely economic, but there's also safety.
IS] And there's a few things that I would like to say
16] aboUlthe safety.
[7J Number one, there's a point that
[B) Ms. Douga1t-Sldes made, which IS,H kind of runs
[Il) contrary to say that he's concerned about safety.
[101, He's running the same exact huslness In that same
[111 exact area.
[12] TIle second thing Is Mr. Polthoff 1Ild not show
113) up at the Planning and ZonIng Commission when Utis
[I.] was to be heard. I believe, when I was reading
115] through some documents, the stated reason was
(161 though, you know, I he;ud that we would probably
[171 get a delay or something along those tines, nut if
[181 his concerns were truly about safely, he would have
(19) been Ulere.
120] Let's address Ule safety. And, obviously, Ule
121] person they are bringing In now Is Mr. Held, Ule
(22] Harbormaster.The problems that -there's a few
[231 problems with this safety iSsuc:111erc's a lot of
[2.1 colle ched to you. but I think thc most Important
(25) onc Is Section 41.052, which Is the general
(I) Bo.\rlllooked at.And it's our contention that you
[21 must look at only his safcty:llley want you to
[31 ludge the safety of the pass. 1 think It's prelly
1.1 slmple,'1l1ey, as Mr, Zlmmel said as they came In,
[5] this Is an unsafe pass.
t6] And, again, It Is our contention that the
171 Planning and Zoning Doard - that's not thelr
18] decision, the safety of the pass, If that pass is
19] unsafe or if there Is too mueh activity. that's a
[101 maller for the leglslature.That's a matter for
[111 the city commissioner or the city to address,
[12] The other thing Is, they talked a lot about
[13] personal watercraft.1'ley talked a lot about
(I.) statistics. When you have those kind of
lIS] stallsllcs, it's not the Planning and Zoning Board
116] that makes up the decision regarding how that pass
117J can be run.1'ley make a decision on whether he
lIB] meets the criteria, or whether any applicant meets
[10) the criteria, and whether he's going to be safe,
[201 and that's the decislon,'llmt's what they're
[211 limited to,
[22] When you start talking about Clearwater Pass,
(23) when you st.'ut L'llking about all the things going
124) on, that is not a proper decision for the Planning
(25) and Zoning Board. In fact, r'm going to bring in
poga 30
II) standards. And it says, "TIle standards In lhis
[2] section shall apply to aU uses which arc
[31 identified in Utis dcvc10pment code as conditional
[41 use."
[6] Is U\at Ule one you.all cited before? 1 don't
[6] believe so - and these Ilre the standards that the
171 Board used.And if you go back and look at the
[8] Code, it says, "Only those uses which comply with
(9) all Ute standards contained in the section may be
110] approved dealing with conditional uses,"
111) When you look at that and you look at the
1l2J section that was cited by Mr. Zinunet, safety Is not
113] listed as a criteria. It is not specifically
(14] listed that the Planning and Zoning Board will
115] consider the safety, you know, the safety aspects.
116] Now, if that was my only argument,
117J Mr, Conatser probably shouldn't pay me any money,
118] and I shouldn't be here,
(IDJ Assuming though that you do believe that
[20J safety can be looked at, If you assume by looking
121] at the compatible surrounding with the natural
!221 environment and WiUl the other areas they've
[231 listed. It Is our argument Ulat - and we will
[2.1 present evidence today, that Ule only thing that
[25] you can be concerned with, the only thing the
paga 33
Pago 34
[11 Planning and Zoning Board when they were sitting (I} situation out in Clearwater Pass.
[2) there Wklng about safety, is whether his proposal 121 What they talked about was: I Ie has four
(3] of how he's going to run his business is going to [31 waverunners Ulat he wants to run, how he wants to
(4) be safe and is his proposal then going to Insure [41 run them not within the pass. It is important when
[S) the safety, to insure that he doesn't have [6] you see where his business will be located, to see
[6) accidents, [6] his business won't be in the pass, He's at the
[7J Furthermore, its contention is - you'll ask. 171 west end of the pass, actually. You have the
[8] just as the Planning and ZonIng Board did, when [a] bridge, the appellant's business, You have the
[9] you're looking at the safety issue, must assumc, (9) bridge here, you have Clearwater - you have the
110] that Mr. Conatser, that Clearwater ParasaU is 110] gulf out here, and lhls is the pass, it runs this
Ill) going to actin a safe manner, You can't assume Ill) way,TItc appellant Is right here. My client Is
112] that he is going to go out and violate the law or 112] right here, right near the end of the pass,TIle
113] U\at Ills people are, that is not an assumption, 113] evidencc was put forth in front of the Planning and
114] TIle reason for It is simple, That is why you have II.] Zoning Board, he would be running outslde,And as
[15] patrols out Ulere in that pass. That's why we have lIS] they saill when they looked at that Issue, his
[161 citations. If Mr. Conatser isn't going into a safe 1111) application did not burden Clearwater Pass,
{17J business, then we can use those Issues against him (17J You know, when you start talking about only
11BI to not grant him or to revoke his conditional use lIB] four wJ.verunners, how's It going to get anywhere if
[191 pernLlt. 119] It Is bad at all?
1201 Out when you look at safety, if safety is a {20J Furthermore, this is II resort area.
[211 concern, and, again,lt's not spedficaUy listed 121} Waverunners arc an important part of this type of
('22) out in any of the sections that arc talked about, [221 business,
(23) talked about conditional use, safety wasn't listed. [231 And tile bottom line Is on the safety Issue Is
124] But if you arc going to look at It,ll is with 12.1 to judge his proposal, which he will rresentto
1m contention and it's what the Planninll. and Zon!illl [251 you. I'm ~to put him ulli and he s RO!m~ to
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AQUA WAVE RENTALS INC. v.
cLEARWATER PARASAIL, INC.ET AL
FINAL nEARING
August 5, 1998
Pogo 35
Pogo 38
[I} talk to you about that,
121 'nle safety of the passls really not an Issue
131 to be decltled by the Planning and Zoning Board.
{41 '111at Is an issue that needs to be decided by thc
(SI Jcghllature.AU thcse things that Mr. Zlmmet
ISI dtes, all these things thcy talk about that
m Mr. lIeld wants to talk about, those arc issues.
[0] 1113t's stuff Ul3t should be regulated by thc city
[9] commJssloner and by the legislature, whichever that
[10] Is.
(II] With rcspect to Mr. Held, and you heard that
112] he didn't get a chancc to testify. Well, first he
(13) did get a chance to put in a memorandum, which he
(14) did, which he outlined all of his problems with
[151 this application. In addlLlon he attached the
'[16] minutes of Ule Marine Ad,'lsory Board and he also
{17] attached the statistics.
110] TIley made mention that my client for economic
(19] interests pushed forward for Ulcm to go forward, to
(201 go without Mr. Held there. Mr. Held was given
{211 plenty of opportunity to he Utere, could not be
t22J there. and then he couldn't even have hls assistant
[23] be there. TIlls 15 something they knew in advance
124] was going to be happening. And yes, he docs have
[25] economic concerns because hc wants to get out, and
III you're looking aI, l.eslle, Is the applicant's
(2] responses 10 those crlleria, becausc this memo that
PI we received Is dated May 19, 1998.
[41 THE COURT: tel's go off the rccord,
[51 [Off.the-record discussion.]
[SI TIlE COURT: Back on thc rccord. C]arlfy that,
(1J Go ahead.
[8] MR. ZIMMET: For c1arlficatlon when
(9) Ms. Dougall-Sides Indicated that the planning
[10] stafrs report had Indicated compliance with all
[1 I] the criteria referring, she was actually referring
[12] to Ute applicant's application which attaches their
(131 position as to why they believe they meet aU of
[141 the criterla.TIlc actual planning starrs
1151 memorandum dated May 19. 1998,is a two.slded
(10] document.
[17] MS, DOUGALL.SIDES: What I have is entitled
[181 Number C3. and there is a two page -
119] THE COURT: l.et's go back off the record.
(20] (Off-the-record discussion,]
[21] 11m COURT: Dack on the record.
[22] MR, ZlMMET: l1te actual staff recommendation
l23) was for a continuance of lite Item as contained in
[241 that memorandum of May 19,1998.
(25) THE COURT: All righl.Thank you for
Pago 36
Pago 39
II] that's why.
12J Dut,l guess, the main point by Mr. Held Is,
131 is all of his points that I believe he wiU raise
{41 now, were raised in front of the Doard.They had a
[51 copy of everything Ulat he did. In fact,
, {Ol Mr,)ohnson, who I work WiUl, addressed all of
(1J those issues.
[01 As far as thc Marine Advisory Board as
[S]' Ms. Dougall-Sldcs mentioned, they do not playa
[10j role In this decislon.l1ley do not playa role
(II) with respect to the Planning and Zoning Board,
112] They're just like any other private citizen. If it
(13] was the desire of the city planners or the city
[14] government for them to havc a role In thIs, then It
(151 would be written in the code.
1161 What do you have here? You have my client,
[17] who has had no trouble in the past. He is
[181 currenUy right now rUnning a parasall business out
[HII in that are:!, who has a good safety proposal-
[2ll] most importanUy, has probably thc biggest interest
(211 out of anybody to be safe, he has Ute economic
[22] Interesl.As you'll hear him talk about hls
[23] insurance policy and all U1C other things.
(24) Furthermore, he has shut down operations in thc
~st as safcty Is a major concern.
(II clarifying, Call your first witness,
12I [TI1C witness enters Ule hearing room.]
13] TIlE COURT: Would you raise your hand and be
(4] sworn. Do you solemnly swear or affirm your
IS] testimony at this hearing will be the truth, the
10] whole truth and nothing but the truth?
(1J THE WITNESS: 1 do.
[8] WILLIAM C.IIEI.D,)lt
!91 being duly sworn, was e,mmlned and testified as follows:
(101 DIRECT EXAMINATION
(In BY MR. ZlMMET:
[121 0: Could you please state your name.
(13] A: William C. Held,)r.
1141 Q: How arc you presenUy cmploycd?
115] A: Harbormaster for UlC Clly of Clearwater,
(16] Q: Can you explain to the)udge what your duties
(17] lire as Harbormaster for thc City of Clearwater?
110] A: As Harbormaster, I'm director for the Marine
[19] Department which comprises of the marina, Pier 60, the
120] Salling Center and Deach Cove.
{21] 0: How long havc you been employed as the City of
122] Clearwater lIarbormaster?
(23] A: 1 was originally hlrcd in '81, and was
[24] Assistant lIarbormaster from '81 to '8G.I've been
[25] Harbormaster slncc November 1986.
pago 37
Pago 40
[1] FinaUy, and most importantly, the City set {I] Q: And prior to becoming Assistant Harhormaster
[2] out a set of standards for him to meet in order to 121 with U1C City how were you employed?
[3] get this conditional use permit. He did it. He [31 A: I was in Ute U.S. Coast Guard,
[4] went out and met those. He went in front of a [41 Q: What kind of position did you have in the
[5] hc:!ring where there werc plenty of people who [51 Coast Guard?
[6] testified, [SI A: I was a Chief Warrant Officer. I was In for
(1J All this evidence that you're goinH to hear (1J 27 yellrs. In that position, I was in Georgia, Ships and
18] today ,vas present at that meellng,'!"hat Planning [8] Stations,ln thc Coast Guard.
19] and Zoning Board sat Utere - and not4-to.3 or [9l Q: As an Assistant Harbormaster and as
1101 whatever, they m.lde a unanimous decision Ulat he 110] lIarbormaster of the City Clearwater, is one of the areas
(11] met Ute criteria and that his operation would not (111 that your department oversecs Is the Clearwater Pass
{121 be n burden on the pass, and it should be given, 1121 area?
(131 Therefore, we ask that you do give deference (131 A: Yes.
1141 to that decision and that most importantly, they (14) Q: lias }'our department Ulrough the years and have
{151 did havc substantial and competent t.'Vldence to make 115] YOll personally been Involved In Issues of safety with
1161 that declsion.lllank you. 116] regard to not only the Clenrwater Pass but the beach
{171 MR. ZlMMET: Defore we call Ule witness, can I 117] areas on the gulf and the other walerways of the City of
(16) clarify one Wng? (18) Clearwater?
1101 THE COURT: Yes, I1DI A: Yes.
1201 MR, ZlMMET: Ms. Dougall-Sides was referring (20] Q: Is one of your job duties to provide opinions
[211 to Ute planning stafrs mcmo to the Planning and 121] to either other city staff or city boards concerning
[221 Zoning Roard.Thatls totally opposite of the memo 122] marine safety Issues?
[23] that we were given from the City that's dated May 123] A: Yes.
[24] 19, 1998. I'm just wondering now If you don't have (24) Q: lIave you had an opportunity 10 review Ule
[25] some memorandum Ulat J don't have. I think what 125] application for condlllonal use approval submitted by
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AQUA WAVE RENTALS INC. v.
Q.EARWATER PARASAIL, INC.ET AI.
FINAL I1EAIUNG
August 5, 1998
Pago 41
[tl thIs application that you are aware of?
[21 A: No.
(3) 0: Did you at that point make any recommcnd.Ulan
[4) or opinion to the Planning and Zoning Board with
[5] consideration to their consideration of this
(6] application?
[7l A: Yes, I did. I don't recall the date, I scnt
(91 a mcmo to Steve Doherty, the Planning and Zoning
[9) PermlUing Supervisor. In that memo, I had a specific
[10J recommendation based on somc statistics from a sherlrrs
[111 department, and also the recommendation from the Marine
[12l Advisory Board.
[131 0: Let me show YOll the memorandum. We have
[14] actuall}' pre-marked our exhibits, We've marked this one
(IS] as Exhibit Number 2.ls that the memorandum that you
(16] had drafled to the Planning and Zoning Board?
(11) A: Yes, it Is.
(IB) MR. ZlMMET: Do you have any objection to the
[ID] memorandum?
(20) MR. SCHUETT: No, it's alre:tdy part of the
[211 record.This was given to the - it should have
[221 already gone to !\Ir.Johnston.
[23) MR. ZlMMET: Well, I wasn't sure.
(24] MR. SCHUETT: It should have been because of
(25) the fact" go ahead.
~
{II Mr, Shephard and Mr. Conatser to allow the rental of
(21 personal wntercraft at Shephard's on Clearwater Beach?
[31 A: Yes, I have.
[41 0: I:lrst of all, what is a personal watercraft?
[5] A: A personal watercraflls It vessel thlttis
[6] under 16 feet. It's normally jet-drive powered,
[7l comprises of W2Verunners. SeaDoos, any of that type of
[BI vessel.
(9) MR. SCHUETT: Can I just say one thing - just
[10) to clarify. This Included Mr. Shephard's name, and
(11) this was flled by Clearwater Parasailln this
(12] court, and since that was a big issue in the first
[13) one, and I understand that because he's the
[t41 property attorney, but, you know, Bill Shephard's
[151 name-
[10l MR, ZlMMET: Well, he's Usted as an
111) applicant. I think it's from the application which
(18) has been made part of Ute record.
IlIl] MR. SCHUETT: That's flOe.
120] BY MR. ZlMMET:
(21) Q: Docs a personal watercraft have any brakes or
[221 braking mechanism?
[23] A: No.
(24) 0: What kind of speeds can personal watercrafts
125] reach?
Pago 42
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II) A: Well, the normal personal watercraft right now
[21 that they're selling is in the range of 50 to 60 miles
131 an hour. I've heard Utat Waverunner Is bring out a
[41 personal watercraft that will do 95 miles an hour.
[5l 0: Did you provide an opinion to the Marine
[6] Advisory Board with regard to whether this application
[7l should be approved or recommended for approval?
[8] A: What I did with the Marine Advisory Board in
[9] May at their regular meeting on May the 13th, I brought
(!O] this application and request over to the Marine Advisory
(II) Board, Ute applicant was there along with several
(12] members of the public, to one of the boat captains, who
(13] actually reviewed the request. I do this quite
(14) frequenlly with requests for wake zones or that type of
(l51 request. So I did bring this fonvard to the Marine
116] Advisory Board on May the 13th.
117] Q: Has It been your pmclice to bring to the
lIB) Marine Advisory Board similar requests for conditional
[ID) use approval like this one?
[201 A: The conditional use approval for personal
[211 watercraft inside the pass, I had been consistent on
[221 doing that,11tere was originally a request in '89,10
[23] put personal watercraft off this location, which was
(24) brought to the Marine Advisory Board.There was a
(25) request in '90, which was brought forward to the Marine
(I] MS. DOUGALL.SIDES: The Board has no
121 objection, It should be part of the packet of
(3J materials,
[41 MR. SCHUETT: TIlls is what the Board
151 considered.
[61 THE COURT: Well, I'll compare It to what I
[7J have.
[9] MR. ZlMMET: While we're stopped for a second,
[9] the minutes of the Marine Advisory Board, were they
[10) also made a part of the record, Leslie?
(11) MS. DOUGALL-SIDES: Yes, 1 believe they were.
(12] Let me check.
(13] THE COURT: 'Irus is part of the record, so
(14] exhibit two Is not necessary,!t's already in the
116) record.
1161 What else are you looking for?
117] MR. ZlMMET: The Marine Advisory Board minutes
[191 of May 13th.
[191 THE COURT: I don't see tltem.
[201 MR. ZlMMET: We have a certUied copy of those
[2tl from the city clerk.
[2~l THE COURT: I don't believe I have those. So
[23] that will be your Exhibit 1.
[24] MR. ZlMMET: Yes, sir.
_ [26] MR. CORSMF.IER: 1110se arc copies, they're not
Pago 43
~
(I] Advisory Board. And then this one here in '98. (I] certified.
(2] Q: What was the opinion that you provided to the [2] MR. ZlMMET: I do need to ask him about those
13] Marine Advisory Board, your personal opinion with regard (3] or do you have any objection to the minutes?
(4] to Utis application?' (4] MS. DOUGALL.SIDES: No objection.
(6] A: We laid all the facts out in front of the (5] THE COURT: It will be received as Appellant's
(6] Marine Advisory Board, and let the applicant present his 16] Exhibit Number 1.
[7J case to the Board, We have a very knowledgeable Marine [7l [Appellant's Exhibit Number 1, Minutes,
IB] Advisory Board made up of city commission appointed, [B) received.]
19) local residents of Clearwater. TIley all have a real [9) BY MH. ZIMMET:
[tOI heavy background in boating. They're all very fammar lID) C: Did you have an opportunity to appear
[t I) with the pass. It was brought forward to them for a {Ill personally before the Planning and Zoning lloard?
[121 recommendation which was naturally forwarded to the [121 A: On this malter, no.
[t31 Planning and Zoning Board. [t31 Q: On this maUer, no. Did you request that a
[t41 Q: Did you, yourself. make a recommendation to [t41 continuance of that Plannin~ and Zoning Board meeting be
1151 the Marine Advisory Board? [151 requested because you would not be able to be present?
116l A: At lItC time that the applicant brollght his [tOI A: Yes, I dld.That particular day that the
111) case Into the Marine Advisory Board, we discussed it. I [t71 Board was meeting, I was directed to attend a mandatory
(18) did not, as I recall, make a recommendation on it. [tBl meeting of all the department directors with the Cll)'
(19) Q: What was thc recommendation of the Marine [tD] Manager. My assist.1n1 at that tinle, Mike Hancock, was
(20) Advisory Board? [20) out of town. So I requested that It be continued until
(21) A: TIte recommendation of the Marine Advisor)' [211 the next meeting, which I believe was June the 2nd.
(22] Board was to unanimously deny the personal watercr:lft [221 C: Did you advise Mr, Potthoff that you were
[23] operation and the flats boat off of Shephard's. [23) requesting that the matter be continued?
[241 Q: Any member of the Marine Advisorr Board ha\'e [24) A: r believe he came to my office and asked :lhOlll
~51 any economic interests In elUter approva or denial of 125] It. And I'm pretty sure I told him that I had asked for
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AQUA WAVE RENTALf) INC. v.
CLEARWATER PARASAIL, INC.ET AI.
111NAL HEARING
August 5, 1998
{II It to be continued until the June 2nd meeting,
~/ Q: "ow did )'ou make yoUt request tbat the matter
(3] be continued?
(4] A: I discussed it with Steve Doherty, the central
(5J permitting supervisor, and lIskcd him that It be
[01 continued, verbally.
(71 Q: What is Mr. Doherty's role with regard to the
(S] Planning and Zoning Board I If you know?
(Il] A: Well. he's the permittlng supervisor and he's
[101 at the Planning and Zoning lloard meetings. My
[\11 Ind~cations from him were that It would be continued to
[12) theJune 2nd meeting,
[131 Q: Old you ever hear tilatthe matter was not
[1"l continued?
(IS] A: I he:trd about it after the mel~ting.
(16] 0: So the Planning and Zoning Board never had the
(17] ability to ask you questions or to hear your testimony
118] with regard to this application; is that correct?
[I;] A: That Is correct.
[2Q] 0: In your memorandum of May 18th, 1998, you
{211 recommended denial of tltls appl1cationj is this correct?
1221 A: Yes,
(23] 0: Can you tell the Judge the basis for your
(24] recommendation for denial of tillS appllcatlon?
(25) A: The recommendation on this application is
Pogo 47
PIlOO 50
111 THE COURT: I'll receive It subject to the
12/ objection 10 its relevance, and I will decide that
(3] after I receive all or Ihe evidence.
(4] MR. ZIMMET: Arc we going to molrk that as
(SI Number 2?
[01 THE COURT: It's Number 3. I'll keep your
m number,
(SJ MS. DOUGALL.SIDES: l:or the record the Board
191 would also relterale t1H~ objection to relevance at
[101 this point about the prior decision.
[111 THE COURT: Subject to both objections,
1121 BY MR. ZIMMEr:
[131 0: Since making your recommendation to the
(141 Planning and Zoning Iloard, has your opinion with regard
[151 to the recommendation of approval or disapproval or this
116] application changed? '
[17] A: No.
[181 0: Is It basically Ihe same reasons?
[10] A: Yes.
[20] Q: Have you had tile opportunity to review the
{21] conditions that the Planning and Zoning Board imposed
{22] upon this applicant In approving the application?
[231 A: I viewed the videotape on the Planning and
[2"1 Zoning Board meellng. I don't recall aU of them right
[25] omland.I haven't seen anything In writing on their
[I] consistent with the 1989, and 1990, applications for the
(2) same site. Some of the eonditions In that particular,
[31 in both of those applications, arc appl1cable today
["I under the Land Development Code. Dut here, again, I
[5] don't base my recommendation just on my decision alonc.
ISI I broughtlt forward to the Marine Advisory Board for
[7] the Board to consider it. I'm very familiar with
ISI Clearwater Pass. I've been operating In and around the
[9] pass since 1975, So our recommendation on this has been
[10] consistent with what we have done in the past, that we
(II] feel that personal watercraft operations - more
(12] personal watercraft operations inside Clearwater Pass
(13] arc a safety concern.And we base tllat under 41.033.
114] the Land Development Code, which gives the standard for
(IS] approval.
(16] 0: What Is the b.1Sls for concerns or safely?
117] A: The concerns for safety - we're looking at a
(IOJ pass right now which Is Ule main artery for boaters to
(Ill] go out into the gulf. Dunedin Pass is closed.We
[20) currenUy have 14,000 to <16,000 registered voters in
[211 Pinellas County,lthink all ofUlern try to use
[221 Clearwater Pass every SatUtd.1Y and Sunday. We've got a
[23] lot of heavy boating activity on the weekends and tile
[24] holidays, plus the fact that there Is a slrong current
[251 tllat runs through the pass. And using all of that
Page 48
Page 51
[11 minutes.
[2] Q: LeI me see If we can l4llk about tile conditions
[3] for a minute. One or the conditions, the first
(4] condition, that they were to operate 9:00 a.m.lo dusk.
[51 Is Ihat something that you see as addressing your safely
[61 concerns? '
[7] A: I think that operating from 9:00 a.m. to dusk
IS] inside tilC pass with the boating tmmc, especially on
[9J Saturdays and Sundays and holidays, I stlll feel is a
[101 safety concern.
[111 Q: 111e second condition is that- what they
1121 refer to jet skis, and maybe we should darify this, jet
(13] skis arc a type of pcrsonal watercraft?
(14) A: Yes.
[151 Q: tet's I.'llk about personal wdtcrcraft.1t says
(10l personal watercraft mustid[e through the no-wake lone.
[17) Docs this address your concerns with regard to safety?
110] A: AU vessels have to ope,dtc at an Id]e speed
(11l1 within - and, actually, It's not at idle speed lone,
[20) it's II minimum wake zone, so they would havc to opcmle
[211 without creating a wake.
[221 Q: Thc intent would be tllat tllCY would use tile
[23] no-,vake zone or minimum.wake zone to get to somc other
[24] area where they can operate the Jet skis or the personal
[251 watercraft?
Page 49
Pagll 52
111 information the Marine Advisory Board In their [11 A: Yes, I think the applicant wanted to have Ihe
[2] recommendation said that they didn't feel that litis [21 personal watercraft oper-dte from Shephard's and they
131 would be a safe operatIon for an inlet or a pass. So 13) would operate at minimum.wake speed out 10 light 6,
(4] gathering all the Information together. we made our (4] which Is the start of the wdke zone on the wesl side of
(5) recommendation for denial. (5] the pass, and then once they gct out beyond that, there
161 0: And you had indicated before Ihere was an [61 is no wake zone,
[7] application In 1989, for n similar conditional usc [7] 0: '111C third condition is that there is to be one
{8J approval and tJlal was denied by the Planning and Zoning 18) personal wUlercraft 10 act as a chase and for
(9) Board? (9) emergencies, docs Ihat address your safety concerns?
[101 A: Yes, unanimously. (10] A: That's a requirement - Ulcre are currently
[111 Q: And then there wns another application In [11) fivc oUler personal watercraft rental operations In the
[12] 19907 [121 city limits orCleanvatet and all ofUlem have chase
{13J A: Yes. 113] boals associated wJth - when a rental boalcr gelS in
(14) 0: And that one similarly was denied by the (141 trouble or needs some help or whntcver, they have a
115) Planning and Zoning Board? (IS] chase boat available.
[\01 A: Yes, unanimously. (16] Q: WlIlthllt prevent accidents from happening?
[17) 0: And that was upheld by a hearing officer? 117) A: I don't think It will.
{181 A: Yes, it W.1:i. (IB) 0: WiIJ II reduce the congestion that will be
(Ill] MR. ZlMMET: Do you wanl me to have him [191 caused by the additional four personal walercrafts If
(2OJ identify the hearing officer's decision? [201 this application Is approved?
(21) THE COURT: I don't think It's necessary. [211 A: No.
1221 MR. ZlMMET: What I have Is a certified copy {221 0: The fourth is that they must comply with state
!23) of the minutes that were maintained by the city (2J) law, Docs this address your safety concerns for this
(24] clerk as well as the decision of the hearing (241 use In the Clearwater Pass area?
J?lil officer.l1lat's been certified by the citv clerk. __ ~1 A: Weill It's a standard re~mirement from any
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AQUA WAVE RENTALS INC. v.
CLEARWATER PARASAIL, INC.ET AL
Pngo 53
I:INAL HEARING
August 5, 1998
~
II] rental operator of personal watercrafts that there ;lre
(2J state regulatiolu that come into play for them to
[31 operate, but that still doesn't in my opinion alleviate
[41 our concern.
[51 Q: And the fifth one Is that buoys must be used
[61 to identify UIC per:'iOnal watercraft area, Doell that
[71 address your safety concerns?
[81 A: Well, just gbout all of the personal
[9) watercr:lft rental operations have: a temporary buoy
110] system set up with a buoy where they rent the boat, so
III] they can come in and know specifically where Uley have
(12) to go in and out.That still docs not resolve our
113] s;uety concerns.
[14] Q: Is that area, the area that they use to
[IS] operate the personal watercraft In or just to get in and
[161 out of the area where they rent them from?
[17) A: Just to get in and out.
1181 Q: And then it says, well, the sixth condition Is
!l9] they're permitted four personal watercraft and one flats
120] boat.That obviously wouldn't address your safety
121] concerns? .
(22] A: No.
(23] Q: Have the conditions in the Clearwater Pass
[24] area changed since the applications in '89. and '90,
125) were denied?
[11 Pass to where Shephard's Is, is that a public or private
[2] beach?
(3J A: 111at's a private beach.
141 Q: And what kind of uses arc in the area from lhe
15] bridge to Shephard's?
lG] A: Boating use?
[71 Q: No. ( mean, land lIse?
l8J A: That particular area from the (Ioliday Inn
[9\ 5unspree all the way over to Shephard's,The beaches
[101 arc here, again, they're privately owned by the upland
[111 property owner,The uses right now are mainly for
112l swimming and people enjoying the beach.There arc
113] currently three commercial operations within that area.
[14] TIle Holiday Inn Sunspree has a personal watercraft
(15] rental operation.The Quality Inn has a six passenger
[13] parasall vessel.And Mr. Conat1\er has six passenger
[In Parasail vessel operating off of Shephard's.
[18] Q: I don't think you understood my question,
[101 Between Clearwater Pass and Shephard's is either hotels
[201 or condominiums?
[211 A: Yes.
(221 Q: You mentioned that Mr. Conatser has a Paras all
[23] operation. Do you see a difference between the parasalJ
(24) operation that he runs and his desire to operate
(251 personal watercraft from a safety standpoint?
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PElgn57
.,..,.....,
\
. ,.;.)
[11 ,A: Yes, there arc some conditions that have
[2] ehmged. One of the conditions is there is a stronger
[3] current in the pass right now because of the closure of
[4] Dunedin Pass and there's a stronger current running
[5] through Clearwater Pass right now. that's one condition
(61 that has changed. Another Is the fact that in '90,
[71 there was the draw bridge that was there, that has been
IB) replaced with a high level fIXed bridge about three or
(9) four years ago.
[10) Plus when the new bridge was put in, Ule
[II) channel was moved.The channel was closer to the
[12] shoreline where Shephard's was curremly located in '90,
113] now the navigational is more to the south. Having said
114] Ulat. I will sa}' a lot of the local boaters, in fact,
115) all the commercial boaters that we have at Ule marina,
116] Uley know that Ule old channel still has plenty of water
(17) In it, so they aClually run outside of the channel
[18) closer to Shephard's. But those are the conditions that
[191 have changed since '90.
[201 Q: How has the new bridge affected boat tmffic
[211 in lhat area?
[221 A: Well, one of the nicc things that's happened
[23] Is the boaters now don't have to wait for a draw bridge
(24) opening. A lot of the boaters aren't funneled right
(2sl into that particular opening, they can now operate
(I) A: Yes,l do, because a parasall boat is actually
[2] operated by Mr, Conatser or one of his captains. which
[31 Is a licensed captain by the Coast Guard Ulat can go in
[~) and pick up six passengers. And what they do is take
[51 them out Into Ule gulf or into the harbor to go ahead
[51 and fiy them.The difference tbatl SCe if you have a
[71 licensed Coast Gua:d Captain openlling a boat as opposed
[8] to someone who is, in most cases, a tourist or whatever
~] operating a vessel that they're not familiar with. So I
(10] do see a difference.
(ll] Q: Arc you familiar with Aqua Wave Rentals, my
[12] client'S business?
[13] A: Yes.
[14] Q: And they rent personal watercnlfts; is that
[151 correct?
[161 A: Yes, they do.
[17) Q: Arc you aware as to whether Aqua Wave Rentals
(IBI Personal Watercraft was approved pursuant to the City's
1191 L'md Development Code?
120l A: Yes, it W;\s.
1211 Q: Was it approved as a conditional use or was it
122] approved prior to the conditional use portion of thc
(23] Code being adopted originally?
(24] A: Originally it was approved prior to the I.:md
125] Development Code. It was approved prior to the Land
pago 55
PagD 58
II] basically aU across the pass, And here. again, a lot II] De\'elopment Code. And I don't recall whether we had
['l] of the local boaters don't stay within the navigational 12] condiUonal use prior to thc I.and Dcvelopment Code.
[3) channel, because they know there's plenty of water in 13] It's been quile a few years ago.To be quile frank, I
[4] the pass, so Uley will ride to wherever they want to, (4] don't remember.
(5] So Ulose kind of conditions have changed. 15] Q: His business WaS not approved or his use W<JS
IS) Q: Have lhose conditions Increased boating [8] not approved in accordance WiUl Ule standards that exist
m traffic in lhe are,l? [7] today; is that a fair.statement?
[8J A: The amount of registered boaters in Pinellas [al A: That's correct.
(9] County has continued to increase,) think that Ulere [91 Q: Have there been any other conditional use
(10] will be a continuing increase in boaters in this area, (10) applications for rental of personal watercmfts for the
II I) People come hele to be on the water. and to use Uleir (111 Clearwater Pass area thatltave been approved?
{121 boals and whatever.llere, again, Clearwater Pass is a (121 A: No.
1131 way to get out Into the gulf. 50 ( see it as being a (131 MR, Z1MMET: I don't have anymore questions.
[141 continuing increase in boaters in the pass. 1141 THE COURT: Cross-examination,
[151 Q: Is it the city that maintains the Clearwater 1151 Ms. Dougall.Sides.
[16) Pass area? IIG] CROSS-EXAMINATION
[17) A: The channel Is maintained b)' the Cm\SI Guard. 1171 BY MS. DOUGALL-SIDES:
[IB] 'nley m.untaln all those navigational markers, What we 118] Q: Ill, Mr. Held.
1191 do Is with the CII}', we're able to establish ordinances, 1111] A: Ill,
(20] and with npproval from the Coast Guard and mainly the (20] C: You lestified that you're the lIarbormaster; is
121] florida Marine Patrol, we set the wake lone, We [21) that correct?
1221 currently have a wake lone in Clearwater Pass, the (22J A: Yes.
(231 marina channcl,throughoutlsland Estates.And those {23J Q: Could you take a look at what I m.lrked
1241 arc all city wake zones that arc permitte\J by Ihe state, {24) Government Exhibit Number l,lInd lell me If yo II can
l2.fi1 Q: '1111$ beach nrea runl!!rut from the Clearwater _ . l~l Identify that?_
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AQUA WAVE RENTALS INC. v.
cLEARWATER PARASAIL, INC.ET AL
:~
. J
[II A: Yes, it's :I. job description for the
[2] Harbormaster. whleh by the way, I've re.wrltten.
(3) 0: The new one hasn't gone into affect though,
(4) has It?
15) A: No.
16] 0: So as far as you know Is that your current
[7] description? ,
(BI A: Yes, ills.
19) MS, DOUGALL.SIDES: I would offer that as
[101 Board Exhibit Number 1.
(III THE COURT: Without objection. llonrd's Number
(12) 1 is received.
1131 [Board's I!xhibll Number 1, ) larbormaster Job
(''') Description. received In evidence.)
{IS) BY MS. DOUGALL.SIDES:
[16) 0: Now, you testified that Mr. Canatser's
(17J apptlation came before the Marine Advisory Board. How
(IB] did that get placed on the agend.'\?
(Ill] A: I placed it on the agenda. I dlscussed it
[20] willi the Chairman. Dave Martin, and we actually set the
[21] agemb about a week before the Board meclS. We notified
1221 Mr. Conatser and other people what would be disellssed.
(23) 0: Now. do you normally agenda matters for the
(2") Board to consider?
125) A: Yes.
,...-"
''"~)
II) 0: Is that one of your functions?
121 A: Yes, ) do. Uke, ) said eartler, we get
t31 requeslS for wake zone, modifications and changes and
[41 different marine related mallers Utat come in, and we
[5] have the lloard review them.
[6] 0: Now, you mentioned you notified Mr. Conatser.
[7l Did you notify the appellant here, Mr. POllhoff, is It?
[B] A: Yes, I believe he was aware of it, yes. I'm
[9] not enctiy sure. I think he may have stopped by the '
(10] office, and [ might have told him it was going to be on
III] the Marine Advh.ory Board agenda.
(121 0: Are you the slaffliaison to the Marine
(13] Advisory Board?
11"1 A: Yes. I am.
[15) 0: As of May 1998, who would have been your
[161 immediate supervisor in city government?
(17) A: As of May 1998, my immediate supervisor is the
[IB) city manager and deputy cUy manager.
[10] 0: Are you considered a department head?
[201 A: Yes, I am,
[211 0: Were you directed by the city manager or the
[221 deputy city manager to bring tWs matter to the Marine
[23] Advisory Board?
[2"1 A: NO,I was not.
~5) 0: Were you directed by the city commission?
v
[I] A: No, I \v.\S not,
['2) 0: Did you not tell the Marine Advisory Board at
(3) its May meeting that you had not received any complaints
(4] about Mr. Conatser's, pamsall business?
IS] A: 11tat's correct.
16] 0: You do not have a planning or zoning
m background or education?
IB) A: Just a marine background, 44ycars.
(9) 0: Now, isn't it correct, the City docs have some
[101 ordinancell which I believe you have mentioned tilat
[I II regulate some boating activities?
[121 A: Yes,
(13] 0: And who enforces those regulations?
[14) A: The enforcement of our boaling related
(15) ordinances, we rely on the Illorida Marine Patrol, and
(16] the Pinellas County Sheriffs Department, and the Coast
117) Guard.
lIB) 0: So the City has turned over the enforcement of
119) the city code to those other groups?
12lJ] A: Well, what we have is, we have un agrec:ment
121] with the sheriffs office and the Horida Marine Patrol,
122J and in exchange for us providing them some dockage and
(23) some office space, that tiley In [Urn enforce our
[2"1 ordinanees witil relation to wake zones which arc: all
pSI state approved,
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FINAL HEARING
August 5. 1998
11) 0: Now, you have not made any recommendatlons,:tt
12] least, let's say in the past year, to the City
13] Commission regarding amendments to those ordinances,
141 have you?
[51 A: No, I have not.
[61 0: And you have never recommended to the City
(7) Commission that they ban jet skis from city waters or
[B] that kind of thinl;?
[9) A: Never.
110) 0: And they have not adopted such a ban, have
Ill) they?
{12J A: No.
[131 0: Can you tell us, just for the record, how far,
[1"1 from your knowledge, is it from Dunedin Pass to
[IS) Clearwater Pass by boat?
[16) A: By boat it is probably 16 miles,
(17) 0: You stated there were five, aside from
[IBI Mr. Conatser's proposed operation, there were five jet
119) ski operations in the City currently; is that correct?
12lJ) A: Yes, that is correct. TIle five arc - there's
121] three of them that actually have waiver agreements which
1221 are approved by tite city commission,They arc:
(23] Frenchy's Rockaway Grill, tile Clearwater Beach Hotel,
[24) and now the Hilton which used to be the Double Tree.
[25) Those arc three exposed to the guif. South of
[11 Clearwater Pass there's a Shemton Sand Key, and then
(2) the one at the Holiday Inn Sunspree.
13] 0: You mentioned in your testimony regarding the
[4] channel situation that boaters cross the channel from
(5) side to side, You were referring to nU boaters; were
(0) you not?
[7) A: I never said the boaters crossed the channel
18] from side to side. I said they use the channel and
191 actually opemte outside the naVigational channel that's
[101 marked,Anywhere throughout the pass the depth of water
[II) is sufficient where they ean - so they can use the
[121 whole channel.
[13] , 0: When you're referring to the volume of boating
(14l traffic, Umt includes other types of boats than just
115] personal watercmft; docs it not?
116] A: That's correct.
(17) 0: So the boating communily out there is made up
liB) of different types ofvesscJs?
119) A: Yes.
12DJ 0: Even some sailboats.
121) MS. DOUGALL-SIDES: No (urUlcr questions.
122] CROSS-EXAMINATION
123] BY MR. SCHUE".:
124] 0: Mr. Held, my name is Clay Schuetl.How you
!251 doing today, sir?
II) A: Good. How arc you?
[21 0: Good. I would like to ask you some questions.
[3] If I ask you something that sOllnds like a tricky lawyer
[41 question, pleasc, just ask me to rephmse it.
[5l MR. ZlMMET: TIlere's a witness and we had
[6] essentially invoked the rule.
m [Potential witness leaves the hearing room.]
'(n] THE COURT: No tricky questions.
[9] MR. SCHUE".: No tricky questions, All right,
(10) 'l1lanks,
III] BY MR. SCHUE".:
112] 0: The first thing you talked about - I'm going
113) to kind of jump around, not Intentional, but your
114) testimony went around it. You talked about waverunners
115] don't have brakes, correct?
116] A: Yes.
(17J 0: Doats don't have any brakes either. do they?
116) A: 'Ibat's correct.
1111] 0: You talked about waverunners can do 50 to 60
12DJ miles an hour, correct?
121) A: Yes.
(22J 0: And boats can even go faster than that,
[23J correct?
12"J A: Correct,
(25) 0: Now, your understa~ - I don't know if it
Paga 62
pago 63
Page 64
D & D REPORTING SERVICE (813) 468.2002 Min-U-Script$
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AQUA WAVE RENTALS INC. v.
ctEARWATER PARASAIL, INC.ET AI.
1~INAL HEARING
August 5t 1998
Pllgo 65
I') comes within your job description where we're going now.
12/ Your understanding Is Ole regulaUon of motor vehIcles
(3) is done by lhc sL.1tc, correcl?
[.1 A: Yes.
IS) Q: When we're talking about regulation of
(Bl vessels, you know, boals arc done by the slate, correcl?
(7l A: Yes.
(BI Q: So would you agree wllh me then thnl the
Ill] decision on whatever the proper safely requlremenls
lID) whether It be for car, a boat, or a WllverUnner Is a
[I I) decision lo be made by the state and by lhe legislature?
[12) A: By the state or the federal government.
(13] Q: Or Ute federal government. 1 hope Ute federal
[14] government doesn't come down and slarllelling us abom
[IS) waverunners. But It is a decision that should be
(16) made - or that is made by them, correct?
[17) A: Uh.hum.
lIB] Q: That's their rule?
[191 A: Yeah.
1201 Q: The Marine Advisory Board, Utey don't have any
[211 official rules wiUt respect to conditional use permits,
[22J do they?
[231 A: Their particular position is as an advisory to
[2.] the city commission.
(25) Q: But there's no where in the code where they
III afC listed as a requirement to go through, arc they?
[2) A: That's correct,
[3] Q: In a sense they're like private citizens, like
[.) me or anybody else?
IS) A: Just like members of the Planning and Zoning
[6) Board, correct.
tn Q: Well, maybe a Uule bit different. In tWs
[S) process when you me an applicallon for a conditional
[9] use permit, he Is required to go in front of the
[10] Planning and Zoning Board - the applicant is required
[I I) to go In front of the Planning and Zoning Board,
(12) correct?
{I3] A: 11\at's correct.
(14) Q: The applicant is not required to go in front
(151 of the Marine Advisory Board, correct?
1151 A: Thal's right.
117) Q: The Marine Advisory Board can give an opinion
IIBl to the Planning and Zoning Board, correct?
[HI] A: TIley can make a recommendation, yes,
(20) Q: But lhat's JUSl based - there's noUting
[211 official in the Code that says they have to one way or
(221 the: oUter?
[231 A: That's right.
1241 Q: Now. you talked about - and J'm not going to
12S) go into the job description bccause quite honestly some
PlIgo 68
[11 Key Ilrldge, Would that be a fair :1ss\lmptlon?
/2l A: Yes,
131 Q: It. moves west, correct?
[41 A: Yes.
[5) Q: And now If }'ou wcre starting from the bridge
[5] and facing west and 115 you go by the pass, the first
[7J thing YOll would see Is the Hollday Inn Sunsprcc on the
[B) rlght.hand side, I guess, thcy call1lthc Holiday
[Il) Inn-
110] A: II0liday Inn Sunspree.
111) Q: Righl.And that Is whcre, In fact,the
(f2) appellant's business is, correct?
113] A: Yes.
II.! Q: You move down, then on the rlght.hand side,
lIS} there arc hotels and condos on the right-hand side?
[16] A: Yes, sir,
117) Q: In fact,on the left.hand side I don't believc
(IBI Utere arc any businesses, I mean, there's rocks, but
[Illl there's no businesses on the left.hand side.
[2lJ1 A: Left.hand side Is Sand Key Park.
[211 Q: IUght, Sand Key Park, but therc's no
(221 businesses. Now, there's a beach that runs - what I
[231 cail a beach, there's sand that runs from the bridge aU
1241 the way out to, basically to Shephard'sj Is Utat
[25] correct?
PlIgo 66
PIlQB 69
[II A: That's correct.
[21 Q: In fact, that sand actually stops, that part
[3] of what I call the beach, actuaIiy stops right where
(4) Mr. Conalser actually runs his parasall buslncss; Is
[51 that not correct?
[51 A: 'nut's correct.
[7J Q: [n fact, past that it's just a jetty, correct?
[B] A: Right.
[9] Q: So Ulere's no beach, in fact, that's not a
[101 SWimming area in there; is it? If you don't know the
[1 II answer-
(12) A: A designated swimming area?
[13] Q: That's not a deSignated swimming area?
(14) A: That whole beach In Utere is not a designated
[IS) SWimming area,
[161 Q: Now, you t.llk abollt a wake zone that has been
(17) eXtended - Umt goes out there.
[IB] A: Uh.hum,
[10] Q: Where that wake zone - I Utink, It
[201 approximalely starts at about 50 to 75 yards from where
[211 Mr. Conatser runs his business?
[221 ,A: I would say thal's true, yes. It starts and
(23] stops at light 6.
(i!4] Q: At light 6 which is approximately, you know,
[251 lo go from Mr. Conatser'li loc:ttion out lhcre is about 50
Pllgo 67
Palla 70
(II of the things you talked about in your job aren't In lhe [11 to 75 yards, correct?
(2) job description lhemselves. [2l A: Yes.
/3J A: 'nlat's why they needed to be rewritten, 13l Q: Now, to go from the appellant's location we're
(41 Q: Well, right. And I don't want to get into 141 talking 500 yards possibly or at leasl a cOllple hundred
(5) that. You did mention thal, you know, some of your [51 yards?
(5] duties arc marine safely issues, making recommcndatlons [01 A: Several hundred yards, if you're talking abOUl
{7) to, you Imow, the Planning and Zoning Board, that's nol [7) going to the west, yes.
(Sl specifically Usted In your job description, is it? tBl Q: Going to the west, right.
(9J A: In Ute old job descrlpUon it says oUler - if (9J A: Yes.
(fa) I remember right, on the bottom portion other task... thal lID) Q: Now, that no-wake zone was recently extended;
11 II arc assigned, or something, other duties Ulat arc [I II was It not?
1121 aSSigned. I believe there's sometlting on the bottom of [121 A: Yes, it Was. We had a request from, in fact,
1'3/ It. /13) Mr. Conatser, who came into Ute Marine Advisory Board,
[14) Q: 1113l says what? 114] and asked for us to consider to have the zone extended
[15) A: Dtller tasks assigned. (15] 350 yards to the west to light 6.lIere, again, this was
1151 THE COURT: OUter related tasks as required, (15] brought in front of the Marine Advisory Doard, Iilce, I
[\7) A: Other related tasks as required. last (17) do a lot of requests. The Marine Advisory Board
118/ sentence in paragrolph 2, /1B/ endorsed Ws recommendation, and We contacted the State
119) BY MR. SCHUETT: 119) and actually mm'ed the Zone 350 }".lrds.
[20] Q: Let's talk about the wake zone. J.et's first 120] Q: But that was based on Mr. Conalser coming
['21) kind of describe the area. I don'l be1leve Mr.]ohnston (21] forward; was It not?
1221 Is familiar - all of us arc fa01U/ar wiUt Clearwater (221 A: Yes.
(23) PaSS, ) don't believe Utat the Administrative Law Judge 123) Q: And, in fact, you said they cndorsed - wasn't
[2.) is.The pass starts, I gucss, technicall at the bridge (24) there onc person on UtC Marine Advisory Board who did
1251 or nrobabl before the brld e.1.et's ust use the Sand (25) nol endorse O1ovjn~ the wake zone? ) believe it was
D & D REPORTING SERVICE (813) 468-2002 Min-U-Scriptt!l (14) Page 65 - Page 70
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AQUA WAVE RENTALS INC. v.
clEARWATER PARASAlLt INC.ET AL
111 Mr. Mc1!arl:md.
(2) A: To tell you the Lruth, 1 don't recall.
13] 0: You don't recall ,Well, that's the best
[4] answer to give. Dut it was Mr. Comllser that did come
(5] forv:ard and asked about that?
(61 A: Yes, it was.
(7) 0: Now, you've obviously, and I believe
18) Ms. Dougall-Sides asked, you've obviously dealt with
(9) Mr. Con:atscr before In the running of his parasall
('0] business; is th:at correct?
[,1! A: Yes.
It21 a: He's had no citations. You've never had a
[t31 safety problem with him running his business; is that
[t41 correct?
(t5] A: TImt's correct.
(IS) 0: One of the things - you've kind of said, let
1'7] me make sure I'm corrcct, that Clearwater Pass In making
(IB] sure it Is safe, you consider that as part of your job,
(19] correct?
(20] A: J consider it part of my job because It's
(21] within the city limits of Clearwater, and we establish
[221 the wake zones -
[231 0: I'm not going to gel into any-
[241 MR. Z1MMET: Can we let him fInish answering
[25} Ute question.
It I THE COURT: You asked him a question. You
[2] need to let him fmish his ;mswcr.
13] BY MR. SCHUETI:
14] Q: I just wanted to make sure -1 didn't want
(51 you to think I was going around lrylng to trick you or
(S) anything, So that's part of your - making sure that
(7) that pass area is safe is part of your responsibility,
[S] corrcct?
[9] A: Yes,
(10) 0: Now, one of Ule things that you - when
['11 Mr. Conatser went up for his parasall business, you
(12) said,) want to make sure that you don't open up your
(13] sails or. you know, your parachute before you get out of
114] Ute pass, right?
(IS] A: I discussed Utat with him, yes.
lIB) a: That was a big safety concern to you; was it
(17] not? '
118) A: That is a eoncern having the parasailing
119] operating inside the pass move WiOl all the oUler
120] boating activity. I know Utat we had discussed it when
(21) he originally came in with his - well, let me back up.
[22] Originally, he ~ame in and started a parasall business
[23] off a motcllocation,) believe, it was Harnden Drive,
[241 from Ulere he came into, asked about get ling conditional
1251 use approval to operate the parasail boat from
[11 Shephard's,) think in our conversations we had
[2J discussed that.
13] a: So simply then it is a concern of yours that
[4] nobody - well, wasn't it a part of the conditions-
[5] and Mr. Conatser's just obviously handed me a note.
(S) because he went through this - Ulat, actualiy, one of
(7] the conditions that you requested in front of the
IOJ Planning and Zoning Doard, because that was one of the
[9] conditions of his conditional use permit?
[10] MR. ZIMMET: Can 1 just object on the
(ll) relevancy. We're not challenging that permit
(121 appUcation.
1131 THE COURT: What is Ule relevance?
(t41 MR. SCHUETI: The relevance is, you know, if
(IS] we're t."\lking about the safety of the pass. And
(IS] Mr. Held has come in here and said that that is a
117) vcry important issue to him.And one of Ute other
(18) safety things he talked about is the parasall goIng
(19) up, and there's -
(20) THE COURT: Only because you asked him the
[21) question. My question Is If his application is
[22] about personal watercraft why are we focusing on
[23J parasails?
[241 MR, SCHUETI: ) was just going down Ulat line
(251 iust because there Is, you know, there is evidence
Pago 71
Pago 72
Pago 73
I1INAI. IIEAIUNG
August 5, 1998
Pago 74
[11 thaI ;1101 of olher people do operalc their
(2) parasall hoat hefore.1 mean, it's the opinion
(3) Ihat this sMety Issue isn't as grcal a concern,
(4) We've talked about not just w;ltcrcraft allthi5
IS! entire time, we've lalked about all the other boat..
(SI that have come In, and that the enforcement out
171 there has not been up to standards, nut I'll move
(81 on.111at'5 fine, I mean.
19] BY MR. SCHUETI:
(10) C: I would like to move on to the 1990,1 don't
[11] have the 1989, application in front of me, bUll do have
(12] the 1990,And that was- you recommended that that be
113] denied, correct?
114) A: 111at's correct. Can I say something? I'm one
(151 member of the e1t)' IItaff that makes recommendations to
1161 the Planning and Zoning Board on condllional use.Il's
[17) not like It's my recommendation only.
[18] Q:) understand. But )'ou're the onc who is here. ,
(19) So that's why Ihe questions arc being directed to YOll.
(20) Now, in Utat1990, that application wasn't the
(2t) exact same -the pl'rson applying in 1990, was applying
[22] not for the same exact things that Mr. Conatser was?
(23) A: TI1at's correct.
(24} C: In fact, he was applying for, I believe, ten
(25} waverunnerll; is that correct?
Pago 75
111 A: That's correct.
12] a: He's also applying for the use of four
(3) Catamarans, correct?
(4) A: That's correct.
[5] 0: In fact, he had never run any sort of resort
IS] busincss like this before, had he?
171 A: That's what he said at the hearing.
(B) a: He had no experience whether it being
(91 parasalls or waverunners, correct.
(IUI A: Yes,
1111 a: You mentioned that it's just unsafe to have
112) him have Ulcse four waverunners out U1ere.ls it YOllr
113] position that it is unsafe 7 days a week, 24 hours a
[104] day?
[IS] A: I think it is unsafe to expand with additional
[lS) rental boaters in ,1 pass that's hcavlly used, with a
(17) strong current, with people who aren't famlllar with
lUll personal watercraft:111ere are times where it's really
(t9] a problem and Utat':; on Saturdays and Sundays -
[20) 0: Saturd1Ys and Sundays,
[21) A: - and several holid,1)'s.
[22) a: You would agrce with me that the traffic out
1231 there on a Saturday compared to the traffic out therc on
(241 a Wednesday is extremely different?
(251 A: Yes.
Page 76
(1) a: Why isn't it safe for hinlto operate something
(2) on that day just because of the currents?
(3) A: WeU.l think we still have somc commercial
[4] activity Utere going through with boats, maybe not as
[5] heavy as it is on Saturdays and Sundays and Holidays, I
[6] know when tltis was discusscd with the Marine Advisory
(7) Board, I think, that the matter came up, what about
[8] during the week as opposed to weekends. And the main
(9) concern, and I go on record as saying thIs before,
(10) Saturday, Sundays and federal holidays.
(11) a: So that's your main concern on those days.
/121 But your concern when you talk about watercrdft and you
(l3} talk about the statistics Is just personal watercmft In
1141 gcneral,correct? Is waverunners in general, correct?
(151 A: Well, tl1e thing is Ulat 1 requested a come-ln
(IBI for commercial operations inside the pass other tl1an
117) parasalls has been this personal watereraft operation,
(IB] a: IUght. nut your thoughts on waverunners,
119] would it be fair to say, they apply to whcUter they're
(20] personally owned or whether somebody like Mr. Conatser
(211 rents them to somebody?
[22) A: Well, the personal owned personal watercraft
(23) are just like any otl1er vessel. ) mean, they arc free
(24) to use the pass, hopefully, observing the wake zone.
[25) And they can operate them. and anchor them and do
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(15) Page 71 - IJage 76
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AQUA WAVE RENTALc; INC. v.
a.nARWATER PARASAIL, INC.ET AL
J:INAL III~AmNG
August 5, 1998
Pogo 80
(IJ whatever they can.Thc oncs thal arc reRulated arc lhe
[2J renlal personal watercraft,
13] Q: And why then, I mean, Ir you're sayinj.\ the
(41 pass - why is the pass busy, is II because there's 100
[5l much activity In lhe pass?
f6) A: Well, I don't think -I can't sa)' there's too
I7l much activity, there's alot of activity, a lot of
(Sl boating activity inside the pass. And [ think by
[QI compounding It by having personal watercraft oper-Jted by
[10) people who rent them, who arc not familiar wlth-
/II) number onc,thc renter is not famiUar with the boat to
(121 be operating inside that pass wiUI a strong turrent-
[13) a: Let me ask you a question,
[14) MR. ZlMMET: Let him finish his answer. lie
[151 was not done.
1'8/ IdR. SCHUETT: I wa.~ assuming he Was done.
[17] BY MR. SCHUETT:
(IS) Q: Go ahead and finish your answer.
(19J A: 1 think it would be asking for trouble.Antl
(20] that's my own personal opinion after being here far 20
{21] plus years, I tltink by having additional personal
(221 watercraft in Utat past with a strong CUrrent and the
(23] boating activity, we're asking for trouble.
1241 a: I guess, my question then is, you said how arc
[251 these four, because that's what he's asking to bring in,
Paoo 77
111 of Clearwater, there's only been one accident In the
(21 pasl year; Is thaI not correct? In the City of
[31 Clearwater In the Clearwater Pass.
[41 A: What type of accident?
[5] a: With a Waverunner.ln fact, I'll be real
[6J clear abolltlt,11lere WllS a personally owned w;\Verunner
(7) who was In a - for lack of a beller tcrm, there wa" one
[8) Wavcrunner out there by himself, antlthat's the only
[9J accident that happened In the City; Is that 110t correct?
('OJ p.,: Within thc last year?
fl') a: Yes.
[12] A: That may be correct.
(l3J Q: Ok-1Y.
(l4J MR. SCHUETT: I have nothing further at this
lIS] lime,
118) MR. ZlMMET: Brief rcdirect.
('7) REDIRECT EXAMINATION
lIS] BY MR, ZIMMET:
[191 Q: Are YOll aware of anything in the Clly Code
[201 that provides that any staff member or any other board
IZl/ has the ability 10 wrHc, or whatever you want to caU
[22] il, to make a recommendation to the Planning and Zoning
[231 Board regarding a conditional use application? If you
[241 know.
125] A: To tell you the truth, ['m not sure I can
[I} going to make that kind of impact on thIs area In your
(2) opinion. if you have that nt.1ny already out there that
[3] are unregulated?
14) A: I mean, you're going to have four more Utat
151 arc goIng to compound the problem in the pass, (think
[81 that's four more. And here, again, some of the ones
(7J that arc privately owned that you mentioned, ['m not
(81 going to say aU of those operators have been through
reI boating safely courses or know the rulcs of the road.
[10) Uut the rental operators have not been Uuough the rules
11 II' of the road, and in most cases arc not familiar wltl\ the
112] boat or the water,
(1:11 Q: But If they gel an orientation, if that class
[141 Is setup and they give dlltt, s:Jmc type of Ullng, how
[151 arc they any less qualified than personal owners?
(16) A: Well, they do get that certification, and Uley
('7] arc talked to by the person who is running the boat. r
lIB) will tell you that the Sheraton Sand Key came in and
(lgl they :letually rccelved permission [or personal
120] watercraft renuls off their location because they'rc
1211 operating In the gulf. The difference that I see is
1221 Uus is inside a pass that has a strong current, where
123J Ulere's a lot of boaters as opposed to somebody who is
124J operating out in thc gulf, where you don't have thc
(25) strong current and you don't have the boallng activity
pago 78
Paga 8f
[11 answer that question. Can you ask that question again,
[2) please?
[3J Q: Let me try to make it simple. Arc you aware
141 of an)'thing In the City Code that says a member of the
[5l Planning and Zoning staff Is to make a recommendation to
[6] the Planning and Zoning Board on a conditional use
I7l approval under the City Code?
[BJ A: 'n\e Planning and Zoning Board staff make a
191 recommendation to the Planning and Zoning Hoard?
[10] Q: IUght.
11 II THE COURT: 111at would be a maller of law. If
(12J there is you can cite it, or you can argue that
('3] there was no such thing.
11.41 BY MR. ZIMMET:
[15] Q: I want to c1:1rlfy one thing you said that the
116J area W.1S not a designated swimming area:nlis is an
(17] area where peopJe swim?
lIS] A: Yes, Il is.
/l9J Q: And swimming 15 :I legal activity]
(20) A: Yes,
(21] Q: Your opinion with regard to safety, Is that an
(22] opinion b:lscd upon who lhe applicant is In this maller?
(23] A: No.
(241 MR. ZlMMET: I don't have any more clueslions,
[251 THE COURT: Anything else?
Paga 79
Pago 82
(IJ the pass has, (lJ MR, SCHUETT: No.
12] a: How many would you estimate - hem.' man)' (2] MR. ZlMMET: Thank you, sir.
[3] personal watercrafts arc out In the pass on a Saturllay [3J (The witness leaves the hearing room.1
I.) or Sunday? Just estimate. , [4J MR. SCHUffiT: ( just need like a two-minute
(S) A: I can't teU, [ really have no idea.An 15] recess, just to talk wlUl him bec:luse he had
(6] awful lot of them. I do know that when we t..dketl to the (6] Indicated to me -I didn't realize what time it
(7) sheriffs office about how many citations they issued (7J was, If I could just have two minutes to taJk to
[SI for the pass from AprU '97, through December '97, they [8) him. Is that going to be a problem for anybody?
[91 had Issued, If my memory serves me, it was In the amount [91 MR. ZIMMET: It's up to him.
1101 of 156 citations, 74 warnings:nley said that 80 (IOJ MR. SCHUETT: lIe has come here from a fair
1111 percent ofUtose werc to personal watercraft.11le (ltJ amount of distance and has indicated to me that he
1121 sheriffs officer that I talked to said that they could 112] had a certain amount of time to do some things,
[13] literally sit there and write tickets nil dar. Now, [13] And [ wanted to talk to him to mnke sure he Was
[14J that Isn't to say that they're all personal watercmfts, [14] still going to be here to testIfy, If not, work
[15] TIle Industry - the personal watercraft 1151 something out with the opposing side.
[16] industry has targeted florida as Ule number one target (16J THE COURT: All right.Two minutes,
[17) for personal watercrofts.[ would like to sa)', I'm nol (17J (There Was a short recess. I
{18) against personal watercraft. I'm against accidents. [ISl THE COURT: You may call your next witness,
[19) Q: Well, let's speak about those two Uungs and [1C) MR. CORSMEIER: Call Deputy David Uttlejolm.
[2OJ then I'm done. You said the tickets - do you have a [20J (The witness enters the hearing room.1
[2') break - I mt'al1, all UlOse tickels that you menlloncd, (21J TIlE COUR1':Would you raise your hand and be
[221 would it be fair to say that a majority of them go not (22J sworn. Do you solemnly swear or nfljrm your
(23] to rentals but to people who personally own them? [23l lestimony at this hearing wjIJ be the truth, rhe
124) A: Yes. [24] whole truth and nothing but the truth?
~ Q: And }'ou talked about accidents. In the City [251 THE WITNESS: I do
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AQUA WAVE RENTALS INC. v.
CLEARWATER PARASAlL, INC.ET AL
(II DAVID LITTLEJOHN
m being duly sworn, was examined and testified as follows:
(3) DIRECT EXAMINATION
[.) BY MR. CORSMEIER:
IS] Q: Could you give us your name for the record.
(0) A: David Littlejohn.
(7) Q: How are you employed?
(01 A: As a m;lrine deputy, Pinellas County Sherlrrs
[91 Office.
[10] Q: How long have you been a marine deputy?
(II] A: Just over two years.
112] Q: How long have you actually been a deputy?
[I:!] A: Deputy sheriff with Pinellas County, October
II.] will be three years. Prior to that,1 was WlUl Dunedin
liS] Pollce Deparunent for 17.
[161 Q: So once DunedIn merged, you came over?
117] A: 11U1t's correct.
110) Q: Arc you're assigned to a unit with the
(19) sherifrs office?
{20] A: Yes, 1 am.
{211 Q: What unit Is that?
!221 A: Marine Enforcement Unit.
[231 Q: You said you had been In there?
(2.1 A: Two years.
125] 'Q: Two years. As far as the marine enforcement
II) unit is concerned, is this area of patrol in Pinellas
12] County?
(3) 'A: Yes,ll Is.
[41 Q: Docs it specifically include Clearwater Pass?
[51 A: Yes, It docs,
[II] 0: Have you patrolled In that area?
[7] A: Yes, I have,
[8) 0: Do you commonl}' patrol in that area?
[9] A: Yes, I do.
110] 0: Have you had occasion to be in Clcarwater Pass
Ill) and observe the area of Shephard's on the weekend?
1121 A: Yes,l have.
[13) 0: What is Shephard's?
[14) A: Shephard's Is a bar and restllUrant with llve
[IS) music and recorded music.
[161 0: Would you say tllat It becomes congested at any
[17] time of the week?
[101 A: Friday evenings, all day Saturday and all day
[191 Sunday.
[201 Q: How about the boats? Docs it become congesled
[211 with boats?
!221 A: Yes, it docs.
[23] 0: Docs that occur on the weekends?
[24] A: Yes, It docs.
[ill Q: In your opinion docs that affect the safety of ,
II) Ule area In Clearwater Pass the numbcr of boats?
12] A: Oh, most definl1cJy, They get anchored out
(3) Ulere -I'Ve seen five and six boats deep inlo the
(4) pass.
[5J 0: Have you seen per:;;onal watercraft in that
[01 area?
[7) A: Yes, they kind of work their WllY in between
[0] the boats and go up to the beach.
[9] 0: Have you issued citations to boaters In that
(10] area?
111] A: Yes,l have.
112] 0: Have you investigated accidents?
II:!] A: Specifically, In the past, I have not had to
[I.] do any. Yes,l did one a couple of manUls ago.
(15] Q: Have you seen the use of the personal
[16) watercrafts particularly in the Clearwater Pass area?
117] A: Yes.
(IB) 0: Have you seen Ule misuse of the personal
(19) watercraft?
(20) A: Yes, I have.
[21' 0: Give us some examples of how persona]
[221 walcrcrafls were mlsused,lf you would,
[231 A: Last Sunday two people operating them were
[241 Intoxicated. 80th of those gentlemen went to jail, thcy
@ were on watercraft.l.ast vor, I dIdn't do the
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FINAL HEAIUNG
August 5, 1998
[11 accident, bllt we had somebody out there jumping wakcs,
(2] and he was struck by :mother w:werunner and broke his
(3) leg.
14] )lrequently, I get complaInts from the charter
(5) boat caplalns about waverunners lumping their w;lkes
lOI whlle they're coming back In. Not so much In the
[7) swimming areas. Most of the people have been st;lylng
[01 out of the swimming areas on the beach.
[II] Q: flow ahout Issues of speed when using those
110) personal watercrafts?
1111 A: Il seems lhat th!.:y like full throUle, pretty
(12] much as fast as it can go, the happier they arc.
(13) Q: In the area at or near Shephard's on the
[14) weekends, in your opinion is that safe to use a personal
[151 watercraft at a higher speed In that area?
[161 A: Well, definHcly not because of the congestion
(17] but It's also sUJI close to the minimum wake area, out
110] and beyond Shephard's:
lUll Q: Obviously, It's posted.
[2il) A: Well, It's In the process of it being properly
121] posted.
{22] Q: Arc you familiar wilh persona] watercrafts?
[231 A: Yes, I am,
[2.1 0: TIlls is a common question that's already been
[251 asked.TIley don't have any brakes, right?
[II A: No, they don't.
{2] Q: 111ey're a smaller size craft, right?
(3) A: That's correct.
I.) 0: How fast can they go?
15] A: I'm not sure. I tl1ink they've got competition
101 ones. nut somc of the ones we're seeing out there the
[7J 1200 CC's probably easily hit 60,60 to 65, I would
[91 guess.
[91 0: Would lhe addition of rented personal
[101 .....alercraftln lhe area In and around the arc;' of
[11] Shephard's and Clearwater Pass affect the safely nod use
112] of lhe area?
(13] A: Hard to say. It's going to Increase volume,
II.) Any time you increase Ule volume - therc at Sheph:ud's,
[15] obviously, tllc weekends, I mean, it's a very packed
lIe] area.And personally I'm surprised we don't have more
[17] people getting hurt there,
[IBI Q: Would there be a greater chance of accidents
[19) if additional personal watercrafts were being operated
[201 by Inexperienced operators?
[21] 1>.: I think any time you have Inexperiem:ed
[221 operalors you arc increasing }'our chances of accidents,
{231 Irrcgardless of where It's at. A lot of our accidents
[2.J thaI we do investigate nre Inexperienced operalors.
(2Sl 0: Have you noted in your experience whether the
(I) rented vehicles, the renled personal watercrafts,
(2) whether there's less experience for those tllal rent than
(3) tllOse that own?
[.] A: It's kind of a lwo-prong question with that.
15] You have inexperienced people 111at we run across and we
[a] stop. Obviously, If they're good boaters and good
(7J operators we don't stop them. We don't know anything
IB) about them because they're doing what tllcy'rc suppose 10
[91 be doing,
[101 The craft that we run Into problems with arc
[111 rentals as well as borrowed skis. So you have people
[121 thal- and frequently in the past, it's like, "Oh, I
[131 borrowed the ski from somebody." .Olmy.Who Is it?"
[1.1 'Well, I just met him." So the people we nre stopping
[151 - I can'ljust sa}', yes, it.s just Inexperienced rental
[161 people; II's inexperienced people In general whether
[17] they arc borrowed or renled slds.
[10] Q: Old that happcn al the Shephard's area where
[19] an individual had said that they borrowed them from a
(201 friend?
[21] A: I:requenlly, yes.
(22) 0: And they couldn't Idcntify who the friend was?
123) A: By first name, "ljuSl met the guy,. type of
12.) stuff, "Ilhlnk hIs name Is this."
@ Q: Now, the area In :md around ShephanJ's~mve
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AQUA WAVE RENTALS INC. v.
CLnARWATERPARASAIL, INC.ET AL
I1INAI. III~AIUNG
August 5, 1998
['1 you noted In your patrol of that area that there Is
[21 drinking In that area?
131 A: Most definitely.
[41 Q: And is It a concern of yours that the follcs
(s] who MC drinking at Shephard's might rent these personal
(6) watercrafts?
f7l A: That I can't tell you. My concern Is people
(a) havc been drlnking who arc going to get out on
(9] watercraft, whether it be hoats or personal watercmft.
(10) So I can't say whether It w"uld be a renl.11 boat or not.
[11] My concern Is people drinking on the water,
(12/ Q: Because you couldn't predicllhe future?
1131 A: No, absolutely not.
[141 Q: That's all I have.Thank you very much.
[151 CROSS.EXAMINATlON
116] MS. DOUGALL.SIDES:
[17) Q: Hi, Deputy, You mentioned that you had
[181 observed personal w;llercraft operating around the pass
[11l] area, correct?
['20] A: Yes, I have.
(21] Q: Now, when you observed the watercrart as
[221 opposed to actually ticketing somebody, wouldn't it be
['23] fair to say, you can't always tell whether that's :1
(24) rental watercraft or II prlvately-owned watercraft~
(25] A: Not completely correcl.TIle business that
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III Q: Were those personal owners?
(2] A: Yes, they were personal.
[3] Q: And some of the other waverunner accidents and
(4) a\1those things you see, Is il kind of hard to say?
(5) A: Arc you talking speclfically to Clearwater
(6] Pass or John's Pass?
f7l Q: Clearwater Pass.
IB] A: Clearwater Pass, the only boatinA accident I
(9] had up there was nn actual boat versus a boal.1t
[101 wasn't a personal watercraft accident.
1111 Q: nut when you talk about like wavcrunners
(12) jumping wakes, that's both personal and rental or mostl)'
[131 personal?
[141 A: Probably a mIx.
[15] Q: Probably a mix,
(16] A: Yes.
[17J Q: One thing we have taJked a lot about
[181 Shephard's, and what I want to understand 15, arc you
[19] familiar with the area that, you know, since we've been
[20] talking about Shephard's, where the appllcant would be
(21J running his business out of that Shephard's?
['221 A: No, I'm not.
['23] Q: Arc you famillar with where Clearwater
(24J Parasall runs their oper:llion?
l2S] A: Describe the boat for me, and I'll tell you.
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I1J operates there next to Ule bridge. there arc several
(2) skis there and they've got numbers on them. So when I
131 see them, I do know Uley are rentals because I know what
{41 business they come from.
{5) Q: So you can actuaJ1y Identify tbem.
[8] A: I can identify them.There's a place down on
17l Sand Key, I found his waverunner noating the other day,
(8] there's no numbers, no business, but I know the guy's
(9) ski, and 1 got it back to him. So I do recognJze some
(101 of the rental businesses.
II I] Q: And you mentioned, Ithlnk, Ule Holiday Inn
(121 Sunspree rental business~
[131 A: Yes, I think It's out of the back of Holiday
(14) Inn.
(IS] Q: Do you recall whether you stopped or given
IIBI tickets to any of those rentals?
117) A: I have not given anybody tickets, but I have
11BI stopped and talked to him about where Ule zone is, how
[191 far out to have their customers go before they start,
(20] where the minimum wake sign is. Because Ule direction
(211 they go, it's not clearly posted, So when they can
1221 resume a safe normal operation, I've talked to him about
[231 it,
[24] Q: Now, you mentioned the situation around
{2S) Shephard's.
III Q: Where there's a big red boat?
(2] A: TIle one that says - the big red boat that's
(3] got Shephard's on the side and the phone number.
f41 Q: Right.
IS) A: It operates on the gulf sJde of the rock
(6) jetty.
(7} Q: And Is Jt fair to say it operates west of
IBI Shephard's~
[91 A: Yes, it Is.
{IO) Q: . And wllcre the ingress - egress, for Jack of a
11 II better term, where he goes out Is pretty much, you know,
[121 we've talked a lot about all these boats coming in and
[ql aU this ~ It's prelly much West of that, he doesn't
[141 usually go through much of that; Is that not correct?
(tS) A: Only when it gets real packed at Shephard's
[161 there might be one or two boats over there.
[17) Q: Might be one or two boats.
[181 A: And usually waverunncrs might beach there.
[\9] Q: Right. But what we've been talking about,
(20) what they kind of asked you on direct, and we've been
[211 talking about Shephard's is, where he goes out In that
[221 area, he doesn't go through all of those people, docs
[23] he?
[24] A: No, there arc two rock jellies that come out
(251 (rom Shephard's:nlc vast malority of the boats arc
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111 A: Yes. [11 right there between the rock jetties, and where he's
[2] , Q: Are there not a number of boats or crafts [2] talking about the para sail Is actually on the west side
/3J which come up and anchor off shore there? [31 of that jetty.
(41 A: Yes,they do. (4) Q: So he wouldn't -I guess, the slmplist way
(51 Q: And Ulen the occupants go on shore and maybc (51 and I've probably asked it three times. He wouldn't
(O] go lnto the bars; Is that correct? 151 have to with the waverunners, if he ran them the same
t7l A: Most defInitely. Most definitely, [7) way he ran out his parasail business, he wouldn't have
IB} Q: And thinking about Ule composition of Ulose [B] to go through aU these people~
(91 crafts are some of them at least power boats as opposed (9) A: Not through the vast majority, maybe a few
liD) to personal watcrcmft? lID) boats on a busy weekend.
{Ill A: Power boats,About Ule only thing that I (11) ,Q: In fact, arc you familiar with sometimes on a
[12l don't see out there arc sailboats,1bey're power boats [121 busy weekend how Mr. Conatser works his parasaiJ
/13} or wavcrllnners, [13J business wlll actually layout buoys to have a safe area?
114) Q: And just to clarify. You say you have (14] A: I just recently noticed that where he's got
(151 observed people leaving, anchoring off Shephard's and llSI some big orange noats, where he's set that, that's just
(l51 going on shore and going to the bars? (lB) somc.:thJng that's recently happened,that I've noticed.
[17) A: Most defInitely. (I7) Q: Would you thInk lhat's pretty safe, you know,
/IS) MS. DOUGALL-SIDES: Nothing furUler, [101 would that might cut down safety or you don't know~
(191 CROSS-EXAMINATION (19) A: Probably anybody trying to get in there would
(201 BY MR. SCHUETT: (20] foulthclr props, It prob;lbly would keep thcm out of
{211 Q: How you dolng today~ (21) there.
[22] A: Real good. Thank you. (221 Q: Probably keeps them out, olmy.
{23] Q: Good. On Utis accident you said about the two (231 llow many waverunners would you say arc out
[241 people who were operatlng intoxJcated. (24) there on the weekend on Saturday and Sunday?
~ A: Yes. _ [gg A: Too many.:.
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AQUA WAVE RENTALS INC. v.
CLEARWATER PARASAIL, INC.ET AL
FINAL IIEAIUNG
August 5. 1998
(II Q: Too many. Hundreds?
12J A: Me you talking in the P,lst? Arc you lalklnA
[3] at Shephard's?
14) Q: I'm talking in the past, Shephard's,
(51 A: Il's hard to say:lltey're coming and going.
[61 There's rental places out on the beach.11l(~rc's rental
f7l places back around the corner, I really couldn't give'
laJ you a number.
191 Q: A lot.
1101 A: Yes,
[111 Q: But a lot is a fair thing to say?
112) A: TItere arc more power boals lhan waverunncrs.
113j Q: I guess, the real simple question COl11es down
(141 to and it was asked to you on direct, arc the addition
[151 of his boat, his waverunners, his four waverunncrs -
116] THE COURT: He already answered that; did he
(17) not?
1181 MR. SCHUETT: Okay. Well, he said it was hard
[1'11 to say, and that's what I was trying to clarify.
[201 (fyou don't want me - can I at least ask him if
[211 he -
{221 THE COURT: There's just no need for him (0
[231 repeat what he's already said. If you think
[241 there's something else, there's a reason to try to
[251 get somethlnA else from the Witness.
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Pogo. 98
[11 sworn. Do you solemnly swear or affirm yuur
[2] testimony at this hearing wlll be the truth, the
131 whole truth and nothing but the truth?
(41 THE WITNESS: I do.
[51 TERRY L NOLL
[6] being duly sworn, was examined and testified as follows:
[71 DIRECT EXAMINATION
IBl BY MR. CORSMEIER:
[9] Q: Could you give us your name for the record,
[10] A: Terry L. Noll.
(111 Q: And how is il spelled?
"2l A: Non, N.Q.t.(..
[13l Q: What Is your occupation?
[14] A: ('m a -
115] THE COURT: I'm from Tallahassce, we spell
116J that N.O.t.E.
/171 MR. CORSMEJEA: Somcllmes with:ln S on it.
[181 A: I'm an employee of the Slate of Florida
[19] Department of Environmental Protection, Division of -
[20] actually, the Bureau of Law Enforcement, more
1211 specifically, a Florida Marine Patrol Officer.
(22J BY MR. CORSMEIER:
[231 Q: How long have you been so employed?
[24] A: Approximately 16 years.
[25] Q: You arc a patrol officcr, correct?
III MR. SCHUETI: No, that's okay,
[21 I have nothing further at this time.
[31 MR. CORSMEIER: Just a couple redirect, if I
[41 coutd.
15) REDIRECT EXAMINATION
leI BY MR. CORSMEIER:
[71 Q: Would the addition of one rental personal
tal watercraft add to the volume of boats and watercraft
(lIJ there? .
(10/ A: WeU, simple matJ](:matics, yes. One will add
[111 to the volume, obviously.
[121 Q: You talked about Mr. Ponhoff, actually, you
[131 talked about Oil: whole Clearwater Pass,
[14l A: Yes.
(151 Q: Has Mr. POltllO[[ ever had any complaints
116f against his business or have you ever investigated
[171 anything related to his business?
[101 A: No, he has been cooperative every time I've
[IBI talked to him or his employees about making sure his
1201 customers go where they're suppose to go.
[2IJ Q: And the: question or comment relating to the
122) boats coming up to Shephard's on boUt personal
123] watercraft and boats.
[2"] A: Yes.
[251 Q: Shephard's is a bar. right?
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[11 A: Yes, sir.
[2] Q: Do you have another function?
[3] A: ('m now ~ ( have a collateral duty. ('m what
[4] they caU the outreach officer or publlc information
(6) officer.
[III Q: What arc your duties? Do you get paid more
[71 for that?
[8] A: No,ll's just anoUler job they give me. I'm
[9) sort of a mediator. t do the press releases every time
/101 there's a major case that We make, I'm the medial or
[111 between the press and the officers in the field doing
[12] the work, you know, boating accidents, that way Uley can
(13) do their job and the press can do their job and I'll
114) feed them the information.
/r51 Q: Going on that lheme, you give them mformalion
[16) related to the question that they ask you?
[171 A: Yes, sir.
[l1lJ Q: Is part of Ulat statistical Information
1191 regarding use of a personal watercraft and also all
/201 W:Hercraft?
[211 A: AU watercraft, yes, sir.
[22] Q: Me you familiar with personal watercrafts?
[23] A: Yes, sir.
[24] Q: In your 16 years ;lS :l marine palrol officer,
[251 have you had an occasion 10 view and give citations anE
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[11 A: Yes, it is. [1) examine personal watercrafts?
[2] Q: So people would come, you would assume, to [2] A: Yes, ( have:, and ('ve never ridden one.
(31 drink? [3] Q: Ncver ridden one, that's interesting. Have
[4) A: To drink, and party, and dancc, and have a (41 you seen in your patrol capacity, seen the use and
[51 good time. 15] misuse of personal watercraft on the water?
[61 Q: Then they wiU come back and take their boats (6] A: Yes, I have.
[71 back out, correct? [71 Q: What arc the ways that this personal
[II) A: Unfortunately, correct. [8] watercraft may be misused?
{O] Q: And that same thing would hold true if 101 A: The intentional jumping of boat wakes,
[101 somebody wanted to rent a personal watercrolft from (101 excessive speed in restricted areas, just a number of
[111 Shephard's that had come from that b:tr, correct? {Ill w'"ys, lhe erratic moves,
[12J A: Difficult one to answer, because ( would hope 1121 Q: Drinking-
[13) Olat whoever was renllng it, if somebody was intoxic.lled (131 A: Drinking and boating, yes.
[141 they wouldn't allow him to rent it. But I can't teU 11"1 Q: Are they more or less dangerous than larger
[15) you what kind of judgment somebody might have. (161 wateremft?
[161 Q: And the: parasall boat that Mr. Con.llser runs, 11111 A: The fact of their maneuverolblHty they do a
(171 It has Shephard's on the side, correct? (171 few more things that bigger boats really can't do.
118] A: 111at's correct. llBl Therefore, they account for more l1ccidents than bIgger
[10J MR. CORSMEIER: No further questions. lUll boats,
[2\l1 THE COURT: NoUtlng furlher:I1lank you. You [201 Q: What about the safety of the person or persons
[211 arc excused. (21) on the boat on Ute personal watercraft Itself?
(22) [The witness leaves the hearing room,l (221 A: Well, it's a smaller vessel. (f It collides
[231 MR. COnSMlUER: I'll go gc:i UlC next witness, 1231 with a bIgger vessel or fixed object, it's casler to be
(24] [TIle witness en letS the: hearing room.1 [24] Injured, Hut In Uleir favor, they arc required by law
lrn..l'llE COlJRT:Would you raise your hand and be l~ 10 wcar their life jacket at all times,
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AQUA WAVE RENTALS INC. v.
ClEARWATER PARASAIL, INC.ET AI.
FINAL HEARING
August 5,1998
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II} Q: How about the safety of per~onal watercraft in
12J an area that may be congested wllh larger hoats, Does
{31 it Increase or decrease safety?
[41 A: Well, again, that depends on the operators.
[51 Q: Wouid the number of boats affect safety?
[6] A: Absolutely.
(7J Q: About whether it's In tllC channel or open
(61 water?
[91 A: The channel Is going to put the uoat' closer
lID] together. As to open waters, they stin find each other
(lll and hit each other.
II:!) Q: RIght. Do you have a document or a booklet
[131 with you?
[t41 A: Yes, sir.
[t51 Q: Can you tell the AdmlnJstratlve Law Judge what
116] that Is?
[17J A: 111Js is the Deparlment's statistical book of
(10) all accidents that have been reported to the Department.
[tll) TIle Jrulrlne patrol 15 not the only agency that docs
[201 boating accident reports.You have the sheriffs
[2t) department. the City, you have a self.reporting form,
[22) and the Game and Fish Commission also do boating
[23} accidents.And it's broken down who has done what
(241 percentage of boating accidents in hcre. And these arc
[2SJ aU of Ute accidents that have been reported to the
PRgO '01
Itl IIUle under 10 percent. nut I would prefer to give the
/2/ exact percenlage on P;lge '37.
(31 A: Yes, sir. Of the lot.'ll boats lhat's 9.3
(41 percent of the registered boats In the Slate of Florida.
151 Q: Now let's turn to Page 6, again, tot.'ll number
[6] of reported accldl'nts for all watercraft for 1997, and
(7J thcse stal1stlcs go from '92, 10 '97, Ibef're graphs,
(BI thcy Includc all of these years, correct?
{Ill A: Yes, sir.
[to] Q: How many total accidents were there In '97,
[Ill reported?
(12I A: TItere Were 1251 acddc:nts.
[131 Q: Now, when you go to take Page 37, to determine
[141 the tol.'ll number of accidents which involved personal
[t5] watercraft-
(18) A: Of the 1251 accidents?
(171 Q: Yes,
1101 A: -151 oflhem or 36.1 percent for personal
[11l1 watercraft.
[20] Q: So the statistics show that 9.3 percent of the
[21J watercrafts were - total watercraft Were Jnvolved In
(22\ 31.6 percent of the accldellts?
{231 A: Yes, sir.
[241 Q: Let's talk about Injuries. Go to Page 3-1, of
(Z5] the report. What arc the total Injuries for all
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It) Slate.
[2J Q: Are you familiar Wlllt the statistics in that
,[3] book?
(4) A: Yes, sir. I've used Utem quite often,
151 Q: Let's talk about those.
[61 MR, CORSMEIER: I have an exhibit that is a
[7J copy of the version of the statistics. I'll be
[B] referring to It. (f J could, just maybe move it
(9) into evidence.
(to) MR. SCHUETT: I will be willing to stipulate.
[t I) THE COURT: Yes.
(t2) MR. CORSMEIER: We will be talking about
[13) specific statistics. II's been pre-marked as
[14) Exhlbit-
(15) MR. SC~IUETT: (don't know about
(16) Ms,Dougall.Sides.
(17J MR. CORSMEIER: ('II get you copies of il.
(18) What J would like to do Is consider that to be
(IllJ, a scpar.ue exhibit, if I could.
~ THE COURT: The Appellant's A.
(211 MR. ZlMMET: I thJnk excerpts of these were
[22] attached to Mr. Held's memo.
(23J THE COURT: That's what I remember seeing.
(24) 'l11erc may be some more to this, I'll receive it as
[25] an additional exhJbit, wJthout objection,
II) watercraft?
(ZI A: For all watercraft 75-1,
l3] 0: Now go to Page 38, what arc the totaJs? The
[4] reason I'm excerpting Is bccausc, I believe, it's harder
(5) to go through each page, and it's about a 6o-page
(61 rcport, Isn't It?
(7) A: Yes, sir.
18) 0: Okay.
(Ill A: Personal watercraft recreational accidents for
(10) '97. werc 451.
[\1) Q: Now, according to U1C st,1tistics, what
(12) percenmge of all injuries from boating accidents
1131 involve personal watercraft? Is it approximately
[141 50 percent, close to 60 percent, If you look at the
(IS] statistics?
(16] A: Let me sec.
(\7] Q: Uyou look at the injury statistics on Page
(IBI 38, It's actuaUy 367, you said 451,1 bellevc,
lllll A: Your personal watcrcraft,recrcational ,t51
[20] accidents; there arc 357 injuries, yes.
(21) Q: Now, If you look on Page -11, which is the last
122) page of my exhibit, and you can look In YOllr book-
(23) shows the most common types of accidents. What's the
(24) most common type on the very top of the page?
125) A: Collision with other vessels.
Pogo 103
Pago 106
111 ExhlbltA. 11] Q: Now, you've been a marJne patrol officer for
(2) [Appellant's ExilibitA, Statistics, received.j 12] you said 16 ycars, docs your pcrsonal experience purport
PI MR. CORSMElER:And I believe that Mr. Held /3) with U1CSC sl;lllstJcs I1mt we arc t:Jllting abollt roughly?
[41 obtained his statistics from the internet, which I [41 A: Yes, sir.
[5] believe tracks the same report, it's JUSI out of (5) Q: Now, have you had occasion to personally
[6] the computer. [61 observe the area in and around CleanV'.lter Pass near
[7J BY MR. CORSMEIER: [7J Shephard's on thc weekends?
IS) Q: Let's turn 10 the stnt1sUcs, If we could, on ISI A: Yes, sir, I have.A few ycar.~ ago, but yes.
(II] Page 6, of the report, !L's part of the exhJbit. What {Ill sir.
[10) Js the totaJ number of watercrafts regIstered in Florida [tOI Q: On the weekends have you noted any congestion
[I \]' as of 1997? [1 II in that area?
[12) A: For '97, there's 755,278 registered vessels in [t21 A: Yes, sir.
/'3) the State of HoridJ. That number docs not Include aU /13] 0: llave you noted die number of boalS that arc In
(141 of the boats that arc brought Into the Slate from our (14J and around that area?
(16) guests. (\6) A: Yes, sir, there arc scveral boats In thc area.
(16) Q: 1110se arc registered by FJorlda residents. (IB) 0: Have you noticed personal watercrafls?
(17J A: Yes, (17J A: Yes, sir,
[/6/ 0: So those .'Ire registerctJ in the State of 118) 0: In your opinion, wouJd the addlUon of
[191 Florida? (111] personal watercrafts, rented personaJ watercrafts In
[201 A: Dy registered individuals, yes, sir. [20] that area, In and around that area, affeclthe safcly of
[211 Q: And the total number of personal W.ltercmfts (21] the pass?
[22\ registered in Florida, personal watercraft, look at Page [221 A: Any Hme you put any type of boat in that
(23) 34. /23) arc;!, or any area llke that,anothcr bo;llls another
(24J A: Total personal watercraft 70,606. [24) part of the congestion.
l~ Q: What percs~c 37, explains It's a ~l Q: What about your persomll eXQcrlcnce with
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AQUA WAVE RENTALS INC. v.
ctEARWATER PARASAIL, INC.ET AL
FINAL HEARING
AugustS, 1998
Pogo 107
(II Inhcrcntl}' dangerous. Il's how il is used, you know,
[21 The comparison that I've heard used several limes Is,
(3) you know, we have the laws that say you can and c:m't do
14] this, hut people do it. But the best comparison Is a
[5] Corvette is made to run 150 miles an hour.We don't
[S] allow that:nlere arc about 350 officers state.wide for
m marine patrol to enforce these laws.
[al a: So if somebody is trained, then they should be
[G] :\ble to use a personal watercraft, correct?
{10] A: As long as they meet the age requirements.
Ill] And if even one followed the guidelines, accidents would
[t~] be greatly reduced.
[t3] a: And you wouldn't have a job.
[t4] A: r know, it's job security.
[t5] a: Your job security would go down. You talked
[161 about when somebody buys a personal watercraft, they get
(171 a video, right?
(181 A: Yes, sir.
(101 a: Doesn't necessarily mean they watch it though?
(20] A: Absolutely.
[211 a: If I just go buy one, they'll give me a video,
[221 but I don't have to go through :IIlY other course; is that
[23] correct?
[24] A: Not at your age, no, sir. ,
[25] a: Not at my age. But, on the other hand, if
[tl rented versus owned personal watercraft? Or owned
[2] watercraft,is it more of a chance that those would be
[3] experienced or inexperienced watercraft operators?
(4) A: Privately owned, :llllong as It's the owner,
(5] when they buy a personal watercraft from a dealer, they
(6] gel n traIning ftlm and so on.And, in fact, that film
(7) Is now avallable to anybody who wants to buy it.'nle
(01 person who borrowsll or rents one, atlenst when they
[01 rent one, under new law that has come out, they're
[to] supposed to get some hands-on training.
[HI a: But currently is there any hands-on training?
(12) A: No, that's new. It just came out.
(13) a: So it would really depend on the oper.Uor as
(14] to whether there would be any hands-on training, there's
(15] no legal requirement of any by the owner to the renter?
(161 A: No,
[t7) a: And I don't know if we made this clear. but
[tAl would there be more of a chance of injury in ;1Il accident
[t9] with a personal watercraft because of the size, there's
[20] less protection for the users?
r~l] A: A fair comparison would be a car versus a
('22) motorcycle. A power boat versus a personal watercraft.
(23] a: And there's a fair amount of hig boats in the
[24] area?
a A: Dig boats ~re everywhere,
Pago 108
[II Q: TItat's aUI have.'l11ank you.
{2] CROSS.EXAMINATlON
[31 BY MS. DOUGALL-SIDES:
[41 a: Officer.lsn't it correct tllatthere arc some
(Sl Florida Statute Provisions regulating the operation of
[6] Ute personal watercraft?
l7J A: Yes, ma'am.
[B] a: And don't Florida statutcs prohibit weaving
(9] through congested vessel tmmc?
{I 0) A: Yes, ma'am,
It 11 a: And jumping Ute wakes of another vessel
(121 unreasonably or unnecessarily close to such other
[t31 vessel?
[141 A: Absolutely.
[tSl Q: Or when visibility around the other vessels is
[161 obstructed, jumping wakes.
[17) > A: Yes, ma'am.
[18] a: And nobody has prohJbited swerving at the last
[19] pos5ible moment to avoid collision.
[20] A: You're talking about Paragraph 4.
[21] a: 111at'5 correct.
[22) A: I've used it once or twice.
[23] a: And do the statutes also prohibit persons
(24) under 14. '
1251 A: No one under the age of 1,' may oremte a
[t] somebody was renting them and you said the law is now
[21 going to require, getting ready to require that they do
[31 give them a course, right?
[41 A: They give them some hands-on experience,
[51 explain that when you let off the Utrottle you have no
[6] steering, that this is how you steer the vessel.
m a: So there will at least be some training?
(6] A: There will be some training,
(9] a: And then, obviously,like any other law, the
[to] opemtor. the renter can go above that and give oul
[11] more; can he not?
[12] A: That would be greatly recommended and maybe
(131 even reduce his liability.
(141 a: Right, because there's a financial interest
(151 Utat he has?
(161 A: Yes, sir.
1171 a: So your only concern is the people that
{18] operate it?
119] A: Yes, sir.
[201 a: And would it be fair to say that the people
[21] who rent Utem are anymore dangerous than people that
[22] don't rent them and own them; Is that correct?
[23) A: If you're asking an opinion,l don't know what
[24] it is about personal watercraft, but you get on the
[25] vessel, and I've seen it done, I've seen officers do it,
Page 109
III personal watercraft:Iltere Is :LIsa the beller education [t) but in controlled areas where there is no other access,
(21 law that requires anyone born since September 30, 1980, [21 where we were learning famlllarity wiUt -I don't know
(3) to show proof that they've taken and passed the better [31 if it's something that's absorbed through the hand or
(4) education course to operate any type ofvesllcl, ten [.1 something you sit on.
151 horsepower or greater, [Sl a: 1 used to be a tanker; it's a power thing,
lei a: So that covers any type of vessel? [6] A: It Is, okay. 1 think the sm.lIlest vessel now
[7) A: Any type ofvesscl, [7] has 80,lIorsepower, they're now up to 120 horsepower on
[8] a: Including personal watercraft? (8) a 9.foot boat.
[9] A: Yes, ma'am, (OJ Q: But your concern is making sure lhat whoever
110) a: Docs that mean the younger members of society [to] gets on and off of there -
(11] will have to take that course to operate a personal [t I] A: - docs so in a reasonable and prudent maller.
(12] watercraft? (t2] a: In a reasonable and prudent matter.As the
113] A: Anyone will have to. ny the year 2001, that [t3] law requires.
(14) law is going to increase one year for ,,'Very year until [t4] A: That's il.
(IS] the year 2,001. or at that time you're either going to [16] Q: And you can'l say that whether it's a rental
(te) have be 22 years of age to operate a boat, or you're [t8) or somebody owns it, you can'l honestly say who Is going
It7) going to have take a boater's education course by law. 1171 to opemte more safely.
(t81 Docs lhat mean everyone wUI? 1'8} A: Or how they're going to operate.
ItOI MS. DOUGAll.SIOES: No further questions.' (101 Statistically, I think Ule rented l'et skis have a higher
[201 CROSS-EXAMINATlON [201 percentage of accidents over tIe owners, but I'm not
[211 BY MR. SCHUETT: (211 sure. I'll look it up.
[22] a: Just a couple of questions. I know Utis first (221 Q: Okay.
(23} one's going to sound kind of out of there. Should we (23] A: This book as was said carries a lot of
[24) ban:LI1 personal waterer-1ft? [24] different information. Not rented is 81 percent.
~S] A: No. It's !lot Ute watercraft itself that's ~N Rented is...!.2.ru:.rcent. Now, the problem that carrie:!
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Pogo 110
Poge 111
Page 112
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FINAL HEAIUNG
August 5, 1998
~ .-.. . .- --,
p'ago 11':1 I -. -' - -, . Pogo 11 G
[II conskleratlons.And also In the beginning, I worked
[2] with thc Hoard of Zoning Adjustment anu Planning
[3] Commission In county.
["] Defenued the zoning ordinance In Pasco Count}',
151 defended the subdivisIon ordinance, both of which havc
161 just been adopted wl1h the Second District Court of
{7! Appeal.
lB] J went Into private practice in 1982.1 call
[II] myself a local govcrnmcnt or law attorney like
[10] Mr. Zlmmet, and primarily reprcscnt cllents beforc
111J zoning and planning and boards of Ulat nature, other
112] than in the City of Clearwater where I sit on the
113) Planning and Zoning Board,
[1"1 For the City, ) voluntcered in two ways. I
[ISI was chairman of the Charter Review Commission of the
[IB] City in 1991, which is every five years was a periodic
[17) review of the City Charter.
[IBJ And, then. I've been on -I'm not sure
[IDJ whether I'Ve been on the loning board here a ycar and a
[20] half or two years, but I think it's a year and a half.
(21) And I'm now thc vicc chairman of the Planning and Zoning
{22J Hoard,
{231 Q: Thank you.A lot of testimony has come
[241 forward today about pcrsonal watercrafts and about the
[25] Cleanvater Pass. Could you kind of explain what you
AQUA WAVE RENTALS INC. v.
CLEARWATER PARA5AIL, INC.El' AL
(II with thl!, you have a jet ski.) borrow it from you. I
[21 didn't pay you money for it. You know, thc rental
[3] statistic.wise shows that therc's fcwer, butthcrc's
[4J fewer rental businesses than people that privately own
(5J them.
16] Q:) understand.TIle reason wh}', obviously, I'm
{7! asking Is because I have someone who wants to rent
181 rental boalS. So when we're talking about other
[91 stntisties - I understnnd whcre you're coming from with
[10] your job. '
[111 A: Yes.
[121 MR. SCHUETT: I have nothing further.
[13J THE COURT: Any redirect?
114J MR. CORSMEIER: No, sir.
115] nlank you, officer.
[101 THE COURT: You may be excused.
(17) {The witness Icaves the hearing room.]
[IBI TIlE COURT: Cau your next witness.
[19] [The witness enters the hearing room.]
{20] THE COURT:Would you raise your hand and be
{211 sworn. Do you solcmnly swear or affirm your
122] testimony at this hearing will be the truth, the
{23J whole truth and noUling but the truUl?
(241 THE WiTNESS: ) do
(25] GERALD FIGURSKI, ESQUIRE
paga 114
[1] being duly sworn. was examined and testified as foUows:
(2J DIRECT EXAMINATION
(3] BY MR. SCHUETT:
14] Q: How you doing there, Mr. Figurski?
15) A: Good, sir.
IOJ Q: Good. I take it you've already given YOllr
(7) full name to the court reporter,
18) A: Yes, sir.
191 Q: Could you please lct the Administrative Law
(101 Judge know a little bit about your background. In fact,
{II} why you have to leave early today.
1121 A: I have to leave today bccause I'm
[131 President.clect of the Clearwater Dar Association, and
[141 there's a meeting at four o'clock that I'm supposed to
[15] chair in the absence of the president, who is on
[\6] vacation, I'm hoping that Mr. Zimmet will be nice to mc
[17] so Ulat I can vacate the prenUses quickly,
[16J Q: Give us somc of your professional background.
Illl] A: I'm an auorney.I've got a bachelors and a
{20] masters from Kent State, in Ohio In 1966 and 1969.1
121] taught for Kent State for five years, My degrees were
122J in political science and hisloryj masters In political
l231 science. I've taught American National Government, and
(241 St:lle Government courses, things of Ulat nature. I
[25] dccided to go to law school primarily because of Kent
Pago 115
[1] Slate. It was the nrst year I taught for Kent Ulat I
[2] went to Ule University of Akron. I graduated In 197'1.
[3] My masters was - thc primary emphasis in my mastcrs
14J program was planning, studied under a guy name Dr,}1m
15] Coak at Kent Stnte at Evan Research Center, who prior to
(6) coming to Kent had been executive director of the
(7J PWladelphia Regional Planning Commission.
IB] My rust year of practiec,) practiced in
ID) Mason, OWo, Star County, OWo,1n the location of the
1101 Pro Football HaU of Fame. I was a police prosecutor
{I II and assistant city solicitor. So, during the rust year
{121 that I pmcticed, I was working for the City of Mason,
(131 Ohio.
[141 1 came to Florida In Septcmber of 1975. I was
[151 an assistant county attorne)' for PlneUas County. Among
[16] my primary responsIbilities werc working with planning
[17] and zoning. And ) also served as the attorney for the
[IBI board of zoning adjustment, which is U1C kind of board
1111J I'm reaUy sitting on now as a citizen.
120] 1 become Pasco County Attorney in 1978, held
121J that position until August of 1982.When 1 startcd
{221 there, there was me and one asslstant,the office
{23] subsequently grew. Dut In the very beginning I sat -
[24] well, aU the way through those four years, I sat with
J251 the Board of County Commissioners on all their zonin~
Page 117
[1] believe is the Planning and Zoning Hoard's decision
[21 making autllOrlly of what factors - not just the factors
[3! within the stntute, but what their purpose is?
["I MR. Z1MMET: I'm going to objcct. I think the
151 purpose of UlC stntute is estnblishcd by code not
IBI by what Mr. Flgursklthinks their purpose is.
{7! THE COURT: It would seem to be a mailer of
[8] law,
(Il] BY MR. SCHUETT:
[10] Q: With respect to this decision that came
[11] forward, obviously, did you sit through the hearing?
[12J A: Yes, sir.
[13J Q: Was all of the evidence Ulat pcrsonal
114] ,vatercran was dangerous, wns that all presented to
115] you.aU?
Illl) MR. ZIMMET: I'm going to object to the
117] question. First of all, it's leading. Second of
II III all, how do we know if all of the evidence thaI was
lID) considered dangerous and was presented?
120] THE COURT: lIe wouldn't.
[211 BY MR. SCHUETT:
[221 Q: Well, was the evidence bcfore you about the
[23] danger of personal watercraft?
[24J A: Yes.
[2S] Q: What diu you feel, when you personally
pago 118
[1) listened to that? What was the response? What werc thc
121 factors in your mint! when you were analyzing this
131 situation and the evidence presented before you?
141 A: Speaking for myself. what had been presented
151 was a leller from the Harbormastcr, Mr. Held, which we
161 actually took a recess in order to review. And then
{7! there was some discussion and no one appeared on behalf
[a] of tile Harbormaster.lle ,vas notthere.l)e was not able
(Il] to be there. And I guess the Assistant l-Iarbormaster
(IO) also could not be there.
III] So what we had 111 front of us was his letter,
[12] along thcn with copIes of information that rehlled to
[131 citations and warnings that had been issued by various
[14] law enforcement officials In and nround that arca In lhe
[15] harbor.
[16J The citizcns who appe;ucd also mised the
[17) Issue of the danger of persollal watercrafts,And,1
[lBJ guess, thc issue, at least from my perspective that W;UI
[Ill] before us, was in de;l1ing Witll a condition;t1 use in some
[20) areas called a special exccpUon,Thcre arc, you know,
[211 a spccial exception or conditional use, w]dch Is what
[221 the City of Clearwater calls it, which says, b:lsically,
1231 that If this conditional use for this activity of
1241 personal watercmft is a permitted use if certain
l~~ conditions arc met.
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AQUA \VAVE RENTALS INC. v.
CLEARWATER PARASAII., INC.ET AL
Paoo 119
II) So the challenge to me as a member of that
12] board 15 to look at the conditions that arc set forth In
(3J the ordinance, and go through them and dctcrmine whether
(4J each one of those arc met.
IS) The st.1nda.rd, as I understand it, that we arc
[6] to follow is whether or not - where docs Ute
(1J substantial competent evidence lle,And in this
[Bl particular case after listening to all of the evidence
[91 that was presented by Mr.Johnson and by his client, as
ItO) well as by the citizcns, and in reviewing the materials
Ill] that Mr, Held had drafted and sent through the st.1ff to
112] us, that secmed clearly that the substantial competent
(13] evidence was on the side of granting Ule conditional
114] use.
lIS] Q: Did you consider safety?
lIS) A: Did I personally consider It? Yes. Jfyou
117) look at Ute tape, the audiotape or videotape, we also
lIB] looked at the minutes. It was an Issue Ulat we
119) discussed. Mr.Johnson on behalf of the applicant made
[201 the point that safety was not a factor. And I carried
[211 on a little bit of an academic discussion wiUt ltim as to
/22J whether or not safety was included.
123) With aU zoning, it's all based on the healUt,
[0l.41 safety and welfare of the public, and Utat's tile
[0l.5] overriding conccrn.And there is a prior condition that
{II mentions the word "welfare." So, if you take aU of
[2) that, you know, if you can look at it from that
[3] perspective.l kept saying, "Mr. Johnson, I think
[41 safety may very well be an clement." But I wasn't there
[5) as a lawyer.11lat's something for the lawyers to argue
[BI out. I try not to do that when I sit there. I did
(1J consider it. And came to the conclusion that the
[e) addition of four waverunners or jet skis and a flats
[Il] boat that would carry three individuals was olmy within
Il0J the context of what was going on.
[I II MR. SCHUETT: I have nothing furUlcr.
[12) DIRECT EXAMINATION
(13) BY MS. DOUGALL-SIDES:
[14) Q: Mr. Figurski, did you consider whether the
115) proposed use was compatible with the surrounding land
[IS) used?
[17) A: Yes.
[IBI C: What was your conclusion in that regard?
[191 A: The conclusion was Ulatlt was.
120) Q: Why Is that?
1000t] A: You're basicalJy dealing wiUt a beach
1221 community, You're right there on the water, TIlat's
123J what you expect to have therc,There is an existing
(l!4) waverunner or jet ski operation there.111crc's two
(25J parasai1 operations, It's a pubUc area,11tat's what
Page 120
FINAL HEAIUNG
AugustS, 1998
Page 122
I1l CROSS-EXAMINATION
[21 BY MR. ZIMMET:
13/ C: Mr. Figurski, :lctllall)~ rou can only spc:lk for
14J yourself, right?
15) A: Yes, sir. the minutes arc the best evidence.
(SI Q: I low mnny members of the Planning and Zoning
m Board arc there?
IB] A: Therc arc seven.
19J Q: So therc's six othcr people that voled?
[101 A: Yes.
[1 II C: Actually, you weren't Inside their heads, and
[IOl.l other than what they may have spoke and said something,
(I3J you don't know what the oUlers were thinking.
[141 A: No, r do not. And, again, the best evidence
[151 is the mlnutcs of the mceting.
[ISl Q: Would you agrce with me th:ll Mr.Johnson
(17) advised Ule Board that safely was not an issue for them
[IBI to consider?
[191 A: That was his posllion, yes. He said it was
[201 not one of the llsted items In Ute general conditions or
[0l.11 supplement.11 conditions In the ordinance.
122J Q; Isn't it true, that he told the Board that
[:!3J they couldn't even consider safely?
[0l.41 A: Tim Johnson says a lot oflhlngs. He did say
1000Sl that also.
Page 123
II) C: Isn't it also true, that the assist.'!nt city
12J attorney was at the meeting and indicated that safety
(31 was not one of tile criteria in the City Code?
[4) A: I would ask the hearing officer to rely on Ule
[51 minutes of the meeting. I somewhere remember
16] Ms. Dougall.Sides referencing the fact that safety may
(1J very well be a consideration. My memory is Ulat she
(BI made that comment:nlat was after I wns making some
[91 comments and arguing with Mr.Joimson about wheUler or
[10] not safety can be a consideration within a broad degree
II I] of health, safety and welfnre.
[121 Q: You would rely upon the tape of the meeting as
[131 to what they were advised by the nssistnnt slate
[1~1 attorney?
[15) A: Yes, sir, ( might add to that, I can't tell
116] what was in the mind of everybody. nut Just in terms of
(In listening to Utc discussion, snfety was thrown around,
IlBI And I don't believe anybody on that Board truly believed
[191 that this would cause snfety problems,
12D) Q: Do you OWn a boat?
1000l] A: No, sir,
120l.J C: Have you ever owned n personal watercraft?
123J A: No, sir. My In.law's h:l\'e, but I have not.
(l!4J C: Do you know how fast a personal wntercraft can
!3.~U~o ?
pago 121 Paga 124
II] you expect to see.l1tere's condos in the area, I know,
10l.] but my basic attitude is that it's clearly compatible.
13J Morc important than anyUting ehic, the land
(4) use designation says it's compatible. The lonIng that's
(5] in the area says it is compatible, and looking at it as
(6] a physical matter, it is compatible.
(1J Q: You mentioned some members of tite public had
IBI appeared. Do you recall residents of Continental Towers
[Il] appearing before you?
IIOJ A: I'm not sure which one it was.ll was .fOWest
It I] or West .fa. But, yes, there was a group of individuals
IIOl.J there from the condos?
113) Q: Did you as a board member consider their
[141 input7
115) A: Yes.
116] Q: What was their conclusion wlUt regard to Ule
117) their comments?
liB] A: To a cerL'!in extent, I think somewhat ofa lay
(HI) opinion, but more Important r iust think that the
[2Ol evidence that they presented was not of a nature that
[O!l) would cause me to conclude Ulnt tile application should
fo!Ol.] not be granted. I think clearly substantial competent
123] evidence whJch is the standard in Ulese kinds of mallers
(24) waS on the side of lIlC applicant.
[0l.5) MS. DOUGALL-SIDES: Nothins: further.
II] A: No.
10l.] C: You're not nn expert in boating safety, nre
13] you?
(4) A; No, sir.
[5] Q: When 'was the last time you were in Clearwater
[6] Pass on a boat?
(1J A: Probably a good 10 or 15 yenrs ago, when my
[8] brother.in-Iaw got a boat stuck on a sand bar somewhere
(fIJ mar's near that pass.
[10] Q: Now, you made n comment Utat tile zoning and
[111 land use say this 15 compatible, this USe Is compatible
[12] with this area, correct, Is that what you snld?
[I3l A: Yes.
(14) Q: But yet the code m:lkcs it a conditional use?
115) A: Yes, sir.
IlSI Q: And makes compatibility one of the criteria to
[171 be considered by the Planning and Zoning Board; is that
[IBI correct?
(19) A: Yes,
12IJ] Q: Arc you telling us that you take from the
1000I] zoning code and tile bnd Use designation, that YOll arc
[0l.2J obligated to find that the conditional use is
(23) compatible? .
(24J A: No. WIJal,'m saying is that, you know, ills
@ set wiUtin that catc~orv.And it's sayins: thnt if YOII
D & D REPORTING SERVICE (813) 468-2002 Min-U-Script!)
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AQUA WAVE RENTALS INC. v.
cr.F.ARWA11!R PARASAILt INC.l~T AI.
FINAL HEAlUNG
August 5t 1998
pago 128
PIIgn 125
IlJ ,10.'101 through 40.106, which is the Zoning District
121 I~esort Commercl;lI 28 Zoning Provisions. Finally,
PI from the CondItional Use Chapter,41.021 through
1~1 41.053.
[51 And I would direct your attention to three
[61 secllons contained in the Standards for Approv:tl,
[7) that's in Section 41.033, Section 41.052, :tnd
[8] Secllon 41.053(21),
~] THE COURT: 1 wlll t.'lke official recognilion
(10] of those records.
Ill] MR. ZlMMET: Do we have an exhibit number for
112] that, or how do you want us to do that?
1'3) THE COURT: ('m just officially rccognlzlng
('41 those provlslons.And the record will reflectth:tt
[IS) they have been presented to me, certified copies
[161 have been presented, they bear their own
[17) identification.
[16] 'MR. ZlMMET: We may just refer to them when we
(19) do our writlen brleras wrlnell summaries by
[20] section, right?
(21J THE COURT: Correct.
(22) MR. CORSMEIER: We're ready with the next
(231 witness.Judge, we have some pholographs that he's
l2~1 going to identify. I'll just give copies to
[251 counsel.
II) meet Ulese condlllon!!, If YOll meet the condlllol\!1 Ihal
(2] arc set fmtll In the ordlllance, Ihlll cOlldltlon:t1 use I!I
[3) a permlUed use In that district.
[41 So, you know, when ( Ihlnk ahmll
[51 eomp:1tibllity, I think about the f;Ict by the cUy
[61 commIssion that (mid tlmtthl!! arcO! Is I;lnd zoned,
[7J land.use zoned for rellortllnnd commerci:d recreatlumtl
[8] :1ctivlty.The zone category 1!Ii thlll.
(9) And ) looked At those: condItions to see If -
110) I'm not saying It Is autonmllc.I'm just saying Umt
(II) the l:1w says that that use can nlln the,'c, Urou meet
II?] those conditions.
('3] Q: In other word!!, the bOllom line Is what the
(14) code Is indicating that this mlY he compatible, this may
['5] be permitted thc:re:, If the PI:1Oolng nnd Zoning nO:lrd
['61 reviewing tlU5 criteria, and this Judge In the appellale
[17) process provided b}' the: Code agrecs with lhe Ph10nlng
(181 and Zoning Hoard's decision?
(Illl A: Yes. Whnt I'm really sayIng, Ahm, It is
(20] something morc than lust going In and getting a brand
(21) new zoning for a piece: of propert}'. It Is saying these:
122] arc arell permitted uses:1l1ese arc the condllional
123] uses. And Ifthelle st:md.1rds arc met, It becomes a
124] permitted use within that district.
. a-MR. ZlMMET: I don't have :anymure questions.
Page 126
PQge 129
[II THE COURT: Any redirect?
[2] MR. SCHUETT: No redlrcct.'l1mnk YOll very
[3] much, Mr. FigurskI.
(~I [The witnc:ss le;WCll the: hearing room.J
(5) Mlt ZIMMIIT:Wc have the two llectlons of lhe
(6) Code that we had, I don'l know If you considered
[7J them us exhlbllll or what.
(8] THE COURT: Ilhink that what )'ve done, I've
(D) officially recognized them as a way to gct them In
['OJ front of me.
[111 MR. ZlMMET: Wet'Ie gOI certified copies of
[' 21 those.
[131 THE COURT: Ms. Dougnll.Sldes may also ha\'c.
[1~1 Arc you llubmllling a set of certified caples,
[1&1 :1150?
[161 MS. DOUGALL.SIDES: Yes, I am,
[171 MR, ZlMMET: Of the Code:?
[181 MS. DOUGALL.SIDES: Some sections of II.
[1111 Which do }'OU have?
[201 MR. ZlMMET: '111e ones we havc :Ire 35.(H and
[211 41.033,
(221 MS, DOUGALL.SIDES: I don't have 35.0,1.
[231 THE COURT: If }'OU want 10 we can do that at
12~1 thlllllmc, or you can Just list off whnt you want
(2!iJ me to ofnclalJy recognize ;lnd 5ubmlt them, ;lnd I
[11 THE COURT: Would you raise your hand and he
[2) sworn, Do you solemnly swear or affirm your
[31 testimony at this hearing will be the truth, the
[4) whole uuth and nOlhing but the truth?
[51 THE WITNESS: 1 do.
[6] ROBERT G. POTTHOFF
[7J being duly sworn, was examined and teslilied as follows:
(0] DIRECT EXAMINATION
(91 BY MR. CORSME1ER:
lID] Q: Could you give us you full name for the
[1'1 record.
[121 A: Robert G. Potthoff.
[131 Q: Where do you reside, Mr, Potthoff? 111e county
[t41 is fine,
[15] A: Pinellas County,
[16] Q: Do you currently own a business named Aqua
[171 Wave Rentals?
118] A: TIlat is correct.
119) Q: What Is the nature of the busincss?
(21)] A: Ills a waverunner rental of persona)
121) watercraft.
1221 Q: Prior to owning that rental business, did you
(23J inquire as to obtaining n condilional use permit to
(24J operate personal walercraft?
(25) A: Yes, sir.
Pago 127
Page 130
(I] will take Ihem now., [11 Q: When would that have been?
121 MR. CORSMEIER: We've pre-marked them as [2) A: TIut would have been in June of '97.
(3J Hxhlhlt 2,110, [31 Q: Who did you inquIre to?
I~J MR. ZlMMET: Is thai one part of yours? 1 can [41 A: Mr. Held, Hill Held, the Harbormaster.
(51 submit It ;all part of yours or however you want.1l [5] Q: Did you nctually go to the lJarbormaster's
(81 doesn't m;lllcr to me :IS long as you hnve them [6] office?
[7J available, [7) A: Ycs, sir.
[81 THE COURT: Ilor the record, the parties arc [II] Q: What happened when }'oU wcnt Ulerd
[UI agreeing to submit to certain excerpts from the [0) A:) was told at the office there Ulat- well,
[101 Code for my official rcco~nltinn.And If you would (10) Mr,Held said, as long as he was In office that there
[Ill 1I111lhem lor the record. 1'1) would never be another wavcrunncr operation In the pass,
[121 MS, DOUGALL.SIDES: Secllnn 2.068, St:1ff (12) Q: When was thaI? I don't know if we gal the
1131 Memberll and Other Hxponenlial Members. Section (13) date, the approximate date.
(I~] 2,196 through 2.199, Marine Advisory Board, (I~] A: That W:1S approximately arollnd June 15th,
(15] Section 33'<lOl ,Authority of City to Regulate ('5] middle of June.
IIG) W:llerwlIYll,AmJ 33.002, DeOnltlon:lllollc arc both [16J Q: Of what year?
(17) onthes;Imcpllge,Seclion33.051 10 33.121,whlch 1'7) A: 1997,
(ISJ :lre the rellllllltnry porlionll of the walerways and ('B] Q: Based on that, did you npply for n conditional
1101 vellllels cha(llcr,And, 1 Ruess, I did have 35.04, . I'lll use permit in Clearwater to operate a personnl
[201 Purpolle!l uf I.nllt! J)evelopmcnt Code. And on the same (20) watercraft business?
[211 page, 35,OS, Objectlvetl. Sectlon 35.11, [2'1 A: No, sir.
[221 DcOnlllons, 36.033, Planning lUll! ZOlllng Hoard, [221 Q: How did you obtain your current business?
f~1 36,036, Hearing Omcer,And on the llame page, [23] A:) sent letters out to all the owners of
12~) 36,065, Appealll. Sectlon 3(;.081 UlrollHh on 36.082, (24) wavcrunner rentals and Inquired about buying one oul.
P.~Lrtlhtlc:ltLon omQtlcc lln,~ MalJlng of NoUcc, [g?L Q: When did you purchase the business?
D & 0 Rl!IJQU11NG SEllVlCI! (813) 468-2002 Min.U.Script0 (24) Page 125 - Page 130
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1\QUA WAVE RENTALS INC. v.
CLEARWA'fER PARASAIL. INC.BT AL
IIINAL IIEARlNG
August 5, 1998
Pago 134
[tl A: I purchascd Aqua Wave Rental~ In November of
[21 1997, November 3rd.
[~J Q: For purposes of the record and also (or the
[41 Administrative L1W Judge, could }'OU &Ivc 115 the location
[51 of you I' business In relation to the pass and also In
[61 rclallon to Shephard's?
[71 A: Olay, I'm cast of Shephard's by about 300 10
lBJ JjOO yards, I would approximate. I'm in between the J,tulf
[Ill and the IntercoSlal, and I am right next to the Sand Key
1101 Bridge.
I11I Q: How many personal watercrafts do you rent?
]121 A: Four,
1131 Q: You're close to thc Clearwater area at Sand
(141 Key Bridge?
(15] A: Yes, sir. I am about 200 feet from the Sand
[16] Key Bridge.
1171 Q: When you arc renting your personal watercraft,
1161 where in relation to the pass do you direct the
{IGI operator, the renters to go?
(201 A: We send all of our customers in the
(211 intercoastal in an area wherc Utere 15 no traffic.
l22/ There Me channel markers out there wJlCrc the main
123] traffic flow goes, as far as the boats, they have to
(24) stay in there, otherwise, Utey'1J run aground. Dutthe
{2S] waverunners you can run In three feet of water, Even at
Pogo 1:1 1
[tl Q: You have I' chaser fflr !H1fet}. purposes llnd :1lso
[21 fur thnt f(~aMlIl~
I~I A: \'c~,
I~I Q: I lave YOIl ever luulnlt)' c()ll1plj\int~, to your
ISI kllflWlcdlte, nhout your hll~lne!'l~, yuur pcrsnmll watcrct'afl
lOI hmlnc!'l:l~
[71 A: No.
181 0: Y(llI've hecn rultllillJt Ihal Illl:lincs!'l since
Illl Novemher of 1997; 1!llh:lll'nrreeI1
[101 A: Th~'II!l curfeel,
[111 0: I>u YOIl rC1l1 ((I :lII}'OltC Ih;,1 comes up to you and
It2j ~I!lk!l }'Oll In ft'Il1 n fl('rMlnoll w:Uereraf.?
{t~1 A: NO,I dn nol.
[1~1 Q: Ilow dn YOII determine how to relit to un
11S1 IlIdh'ldunlnT not1 Wh.U crllerla dll you use? It ma}' be
(101 LI form,
111) A: If lhe flcr!l(llt has heen drlnklnn - I mean,
[tOI I've )md cmtOll1eu come up with n beer cup In their hand
[till anti wnnt to reltt,nnd we tol:t1ly refusc Ulem thcn.lf I
[2Ol C:lO :Imellit. If I com ~ec it In their eyes or thcy're
[211 staAAcrln~. I would basically do II an}' way that a
1221 polkc ornecr would do H,You Just have to look for
[231 it, and we rcfu~e them,
[241 0: And you have refused individuals who have been
[2S] drlnkln.sL.__.
(tl low Ude you can still run out there where other boats
{2J can't. So there Is no traffic out there at all.
13] Q: And that's toward or awny from Shephard's?
(4) A: No, that is cast of It, away from it.
IS) Q: Directly away from ill
[61 A: Dircclly away from It.
m Q: That would be to the left, if you're looking
(B) out to the pass from your business?
IllJ A: It would be to the left.
PO) 0: That's where Sand Key Bridge Is?
Ill] A: Undern.::ath the bridge and over into the
(l2) intercoastal.'
[13] Q: lfyou're looking out from your business,
[I~] Shephard's is on the right?
115} A: That's correct.
116) Q: What's directly next to your business on the
117] right side towards Shephard's, :lte there condominiums?
(18) A: Yes, there Is the 440 West or the Continental
(Ill) Towers.
/20] Q: TIley go in a row there In between you and
{2tl Shephard's?
(22j A: Yes, there is U1C nest Western - first,
(23) there's a Holiday Inn, nest Western, and then we have
124) thc Continental Towers, QualHy, thcn Econo, and then
125/ ShcpJurd's.
Pago 132
Pago 135
[tl A: Yes, sir,
[21 Q: What about if YOll determine that - well,let
131 me ask youthls,Arc there any other criteria that YOll
(4) lIse for an Individual, such as, age or anything else?
IS) A: Yes, you have to be 16 years of age to rent a
[6] wavcrunner, and with our insurance polley that is with a
m parent's slgnature.You h:lve to be 18 years old to
[B) rent. ,
19] Q: Do you insure that that occurs, that the
IIOJ identificallon Is properly provided?
1111 A: Oh, yes:nley provide me with their driving
112) licenses, boating certificates, boat driving license.
113) Q: What amount of insurance do you have?
(14) A: I have a $5 million policy.
lIS] Q: Now, when you decide to rent to an individual,
(18] what, if anything, do you do as far as education or
(17] explanation regarding the use of the watercraft?
118) A: We have an orientation on the beach. And our
(Ill) orientation always starts with - we make sure they know
(20] where the markers arc at, which Mr. Held was talking
[211 about the no-wake zone,We point out the markers one at
(22] a time to make sure everyone undcrst.1nds where they arc
(23) at, and we say from this point to that point is a
124) no-wake zone,
/251 Q: Do you tell them how to usc the personnl
Pogo t33
Pogo 136
[tl C: And you already stated the area that you (11 watercraft?
[2] direct your renters to go Is not a congested area. [2] A: Oh, yes. That's my first part of my
[3) A: NO,Itls not congested. [3] orientation. I can go through the orientation, if you
(4J Q: Does It become congested on the weekends? [4/ like.
[51 A: No, sir. Not even on holidays or weekends, [51 0: No.
[6] Q: If you direct them to the right, would U,at be [6] A: But we go through - It's about a IS-minutc
(7) a congested area? ' m orientation. And then we go down to the water, and we
(8) A: Oh, YI:S, customers ask me If they could go - [8] put them on Ute boat, and we show them how to operatc
[91 especially on weekends, I ha\'c customcrs come by, and (gi the machine,
[10] ask and 1 say absolutely not on Ule weekends at all, [101 0: Lel me move on.
III) just for the traffic at Shephard's, [III . A: Okay.
(12) 0: Do you monitor the location - I'm sorry, I [121 Q: Did you h:IVC an occasion to learn that
113) didn't mean to cut you off, [131 Mr. Conatser appIlr.d for a conditional use permil for
[t41 A: It Is not safe at aff 10 ride thai way, {14J the use o( personal watercraft?
[t51 Q: Do you monitor your watercraft to make sure (IS] A: Yes.
[t6l that thosc crafts stay In the direction you have lient 116] 0: When did you fmd out that the application had
(t7] them? [I7J been made?
118] A: Yes, [181 A: When did I fmd out that the application had
{IGI Q: Have you had occasion to direct Indlvkluals flU/ been made?
(2ol back tu the location you had sent them? 120) Q: In relation to the hearing that was hcld~
[211 A: Oh, yes, we have to go out and get them. If 121) A: It was probably two weeks prior to It.
[22) the}' have gone out that way, we go get them and bring 122] 0: After you learned that, what did you dO,if
(23) them back. (23) anything?
[241 Q: How do you go gee them? f2~/ A: After I learned about it,l went to see
@il A: On a chasc,r. ~. lIe1d.
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AQUA \VAVE RENTALS INC. v.
CLEARWATER PARASAIL, INC.ET AL
11lNAL HEAIUNG
August 5, 1998
"ngo 140
(II Q: What happened when you saw Mr. Held?
121 A: I talked to Mr.lleld about It, He said there
(3] :was going to be a Marine Advisory meeting.
141 Q: Marine Advisory Board meeting?
(6} A: Yes, I mean, a Marine Advisory Doard meeting,
181 that's correct.
(7J Q: Old you attend that meeling?
(B) A: Yell, sir, I did,
(9) Q: Old you speak at that meeting?
[10J A: Yes.
[II) Q: Old you object to the conditional use at Ulat
112) time?
113] A: Yes. I objected because I told them It was an
1141 unsafe area. And the}' were working out of the busiest
[IS} bar, I can say It's Ule only bar in Clearwater, I
[161 guess, where you can pull your boats up to and anchor.
117) 1 guess, you could go on the gulf, but you would have to
lIB] wade in, becaus~ you couldn't bring your boat in that
[19) c1ose.l1lere are some bars on the gulf.
[201 Q: h that the only inland bar that you can pull
[211 your boat up?
(22J A: Yes, in Clearwater.
1231 Q: What did Ule Marine Advisory Doard do, if you
[241 know? Did they recommend denial?
(25) A: They unanimously voted denial, yes.
Pago 137
III weekend and take some photographs?
[21 A: Yes, sir, ( did.
[3] Q: Would you lake a look;lt the photogrophs that
(4) arc In front of you, If you would, just take a look at
(5] that, it's a composite exhibit for the rccord. )t's a
[61 7.page composite. (fyou would look at each page of
(7J that and indicate whether you took that photograph or
(e] the image.
(9) A: Yes, I did,
[10) Q: When did you take those photographs?
[1 II A: I took those Sunday, last Sunday, which would
[12] have been -
{131 Q: August 2nd?
[141 A: Yes, sir.
[151 Q: What time was it?
[161 A: It was approximately four o'clock - 1:00 to
(17) 5:00.
[161 Q: What was the weaUler like at Utat time?
[191 A: It had just got done raining. We had a pretty
[201 big storm come through Sunday.
[211 Q: So this was just after the storm had ended?
{22] A: Yes, sir.
[231 Q: Arc these photographs current, accurate
(241 depictions of that area of Shephard's at the time that
~you took them?
pago 138
Pllgo 141
[II Q: Old you go to the Planning and Zoning Board
[2l meeting on May 19, 1998?
[3] A: No, I did not.
[..] Q: Why not?
(5) A: Mr, Held had informed me Ulat he had sent a
[01 leuer, a memo, to the commission or whatever, and it
{7J would bcJune 2nd, to show up then.
[81 C: Did Mr. Held indicate whether he asked that
[9] tile meeting be continued?
/10) A: Yes.
[III Q: Did he tell you that he had asked that?
[121 'A: Yes, he said it would be continued.
[131 Q: Would you have gone to the meeting on May
[1"1 19th, If you had known that the hearing on the
1151 conditional use was 80ing to be considered on that day?
[161 A: Oh, yes, dcfmltely.
(17) Q: So the reason you didn't go was because Dill
[16] Held had indicated to you that he felt it would be
119) continued?
/201 A: Yes, sir.
[211 Q: You would have objected to the gran ling of
[22] that conditional use at that time?
('23) A: Ycs,
[24] Q: Arc you aware of others that have objected to
/25) lhSJLrnnUng of tJJis conditional use?
[1J A: Yes.
[21 Q: Let's talk about the photogmphs. What does
[31 the first page show,just briefly, where was that taken
[4] in relation to Shephard's and your place of business?
[5] A: The firM photo that we're looking at here.
[61 Q: Before you Identify them, let me ask you this
(7J follow-up question on your last st:ltement.Was there
[a] more or less of a crowd after the storm than bcfore the
[9] storm?
liD) A: There was less ofa crowd after the storm,
[111 Q: Go ahe:ad,Take a look at the photographs.
[121 A: The top photo here, this Is, I would be taking
(13) the picture cast.
(14] Q: Toward your business?
'16) A: Toward my business; that's correct.
(161 MR, SCHUETT: It's kind of hard for us follow
[171 exactly. If you don't mind, if I could look on
[18] with him, and if I could bring my client also
(19] because he: knows the area bener Umn I.
120) MR, CORSMEIER: He can look at Ulem when he
['lI) testifies.
[221 MR. SCHUETT: Yes. Thank you,
[231 BY MR, CORSMEIER:
[241 Q: What docs thaI show?
!2S) A: 'Ibis Is where the Shephard's back yard Tiki
'J
Pago 139
Pago 142
[I) A: Yes. [I) bar Is at.l1lere'slike It Utile grass hut there on lhe
[21 Q: Who arc Uley? [21 right.11lat Is where they have live music at the right
(3) A: Oh,there's Guy right here from Hcono Lodge, [31 there. And theTiki bar is up here where the yellow
(4] We have Calvin with Parasai1 Clly. 14/ 5lgn's at.
(5] Q: Where is he located? (5] Q: 111at shows the beach arca around the bar, and
{61 A: He Is at the QuaUty Inn, lie runs out of (0] that's exacUy towards the liuleTlki bar area?
l7J Ulere.11mt is between me and Shephard's:Jbere was a f7l A: Yes.
[01 list of people at the Continental Towers that had made It (0) Q: And then Ule bollom photo, What docs that
[9J petition against It. [91 show? Is that stralghl down the beach?
(10] Q: Old you latcr learn that hearing - the (10) A: Yes, straight down the beach.
111] meeting had been held and the conditional use permit had (11] Q: 111at's Clearwater - the Sand Key Bridge on
(12) been granted by the Planning and Zoning Board? (12) the right side.
(13) A: Yes,l found out the next day through a friend (13) A: 'Olls is thc Sand Key Brldge,11lerc's thc
1'4) of mine. [1"1 Conlincntal'Ibwers, the Quality Inn,
(IS] Q: You Indicated how far you arc from Shephard's. (15] Q: Second page. More areas of Shephard's. Is
116] Have you had occasion to observe Shephard's, not only in (Ia] that looking westbound?
(17l your business, but also have rou gone down to the beach (m A: That is looking westbound,111C top photo
1'0j and obscrved the business at Shephard's and the area (IB) would be looking west.
(19] around lherd (191 Q: And how about in (hc bottom photo?
(20) A: Oh, yes, [201 A: The bottom photo Is a picture of Shephard's
(21) Q: Is It a bar? [211 back yard,Tiki bar, and night club.TIley'vc got lIkc '
J22I A: It's a bar, restaurant, nlght club. [221 on Monday,Tuesday,Wednesday,Thursday, Friday,
(23) Q: Have you observed it on the: weekends? [23] Saturday and Sunday, they've got drink specials and
[241 A: Oh, defmitely, yes, (24) something goIng on every day therc and every night.
125] Q: Old you have: an occasion to Jl,0 there this past (25) Q: Look as this second paJl,c of photographs.
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AQUA WAVE RENTALS INC. v.
CLEARWATER PARAS AIl., INC.ET AL
~
Pllgo 143
II] Where Is the proposed comlitlonal use by Mr. Conatser In
[2] rclalion to that photograph? Is It straight ahead or
(3] behind It?
[4] A: It's behind Il.
(5} Q: Let's look at the next picture. What 15 this
15} area?
(7) A: This area right here Is this fence Is like the
IBI dividing line between from Shephard's and Econo Lodge.
(91 Q: So the Econo Lodge's property ends at that
(10] fence, and beyond U,atis the Shephard's property?
111) A: 'n,at's correct.
(12) Q: 15 It the same for the picture right
113] underneaU1?
[141 A: Yes.
[151 C: Next page, same thing, Is that U,e property?
[IB} A: Yes,it Is,
(17) Q: Arc those boats In front of Shephard's right
118] U,ere?
I Ill) A: Yes, U,ose arc boalS, watercrafts, Like, I
[2OJ said there was a storm, and aU these folks stayed
1211 through the storm.
[221 Q: Same with U,e bottom page, The bottom photo
[23] on that page.
['24) A: Yes.
(25) C: Next page depicts Shephard's, and the beach
Pago 144
,\:;
. ,./
" I
II) near Shephard's?
(2) A: Yes.
131 C: Which way is that facing?
(41 A: l1us Is facing SOUU"
[5] C: Both oflhem.
[B) A: Both of these arc facing south.1113t is the
(7) pass, and there's a jetty on the other side,
(B) C: How about the next photo?
(9} A: The back page?
110) Q: One more, after two more pages,
\ Ill) A: Okay. ,
) [12) Q: You're still looking at the bollom of that
.........It
1131 photo-
(14) A: Yes.
115) Q: - docs that show boats that arc in front of
(lBI Shephard's?
(17) A: Yes. Boats, people in the waler, drinking,
11BI Q: Old you observe individuals drinking on the
[191 beach area?
[2tll A: Oh, yes,
[211 C: Did they move from the Shephard's area into
(22) the Econo Lodge's property?
['23) A: Yes.'Inere were some of them that had drinks
['24) In U,eir hands and were going back and forth,
@) Q: Is the last picture in your packet -look at
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Pogo 145
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(I] the very last photograph,
(2) A: 111e one with the single photo?
(3) Q: Ycs, that's the second to last one.
(4) A: Yes, sir, these folks were -
[51 C: Did you observe those individuals? Is th:1t
IBI U,e property line between Shephard's and the Econo
[7) Lodge?
[B) A: Yes, sir,
[9] Q: So you observed individuals drinking while
(10) U1cy're walking on the beach?
[II] A: Going back and forU1, going across the !lne,
(12) yes, sir.
(13] MR, CORSMEIER: Judge, they've been
[14] identificd, so I ask to move them Into evidence.
115} MR. SCHUETT: No objection.
(16) MS. DOUGALL.SIDES: No objection.
[m THE COURT: Do they have a number?
(IB) MR. CORSMEIER: Yes, sir, they arc Number 4.
(191 THE COURT: Received Number 4.
(201 'Appellant's Exhibit No.4, Photos, received. I
(211 BY MR, CORSMEIER:
[22] Q: Now, you ftled an appeal of the granting of
[23) the conditional use by the Planning and Zoning Board to
[24] Mr. Conatser?
[O!5] A: Yes,) did.
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Pago 146
II] C: Why did you file this :Ipptal?
12] A: I filed this "ppeal becallse I felt that it
13] was - well, a couple of reasons, One, of them Is for
[41 economic realions, just to start with, you know. I mean,
{51 I have n business there and I have an Interest in It.
l61 And my mostlrnportant rC:1son Is the safety issue, We do
[7J take our jobs very seriously where we work at and with
[BJ what we do. We have a very good orientation. We take
[9] pride in what we do. We do orientate people very well.
110] And we don't want to see - we have people come by that
(II] want to get on these things drinking, and we have to
{121 stand up 10 them and tell them no. I mean, therc's a
1131 lot of people that w'.mt to do It and It's not a safe
[141 operation at all.
[151 Q: In your opinion, would additional personal
[16] watercrafts decrease safety in that area?
(17) A: Oh, definitely.
(16] Q: Mfcct safety?
Illl) A: One jct ski can put - I mean, I've got four
[20] jet skis and there's days I rent 50 rides out. I mean,
I2IJ that's a lot of traffic.
{22] C: Arc you aware of anyone else that would !lke
[231 to have conditional use for a personal watercraft?
[241 A: There's been a [at of people who have tried.
[251 C: Even the individual next to you, the parasall
Pogo 147
[I] operator?
['2] A: Yes, sir.
(3] Q: Has he indicated that to you?
I.] A: Yes. Calvin of Parasall City, he has tried,
15] and he was turned down, too.
(51 C: lias he indicated he still wishes to have one?
(7) A: Oh, yes.
[Bl Q: Now, as far as rental of your personal
[G] watercraft, would you say that the greater percentage of
[10] individuals U1at you rent to are tourists or those
Ill] individu:ils arc not from the Clearw'.lter area?
112) A: Yes, that's correct. Most of my clients -
113] we're at the Holiday Inn, It's a family hotel, like the
114] Econo Lodge and the Quality, they're family orientated
1151 businesses, this brings a lot of tourists and their
[16) families.
(17) , MR, CORSMEIER: That's aliI have.111ank you.
[lBI CROSS.EXAMINATlON
[lGl BY MS. DOUGALL.slDES:
[20] C: Mr. Potthoff, could you Jook at the document
[211 that is marked Government Exhibit Number 2, which is a
1221 portion of the zoning outlets for the area, Docs that
(23) contain the property that you opemte your business out
(24) of?
1'!5] A: Yes, ma'am.
Pago '48
II) Q: Could you mark an X or indicate in some manner
12) where your business is located?
PI A: I'm circling it for you.
(4) Q: Do you have a beach area that you use?
151 A: Yes, we have a beach area.
(61 MS. DOUGALL-SIDES: I would offer this :IS
(7) Board's Exhibit Number 2.
lBl THE COURT: Any objection?
[e) MR, ZlMMET: No.Are we going to call them
[10} Board or City or Government? You filled them out
Ill] there.
[12] THE COURT: It's Government Exhibit,
(13) MS. DOUGALL-SIDES: I don't have labels for
114] Board Exhibit so the labels say Government Exhibit.
(15) THE COURT: (don't think the Hoard is
(16) actually a party.
117) BY MS. DOUGALL-SIDES:
118] C: Now, you arc not the property owner of the
111l] properly; is that correct?
12il] A: That's correct.
(211 C: Do you have a leasc of the beach area?
(22) A: Yes, I have a lease with the Holiday Inn.
['231 Q: How long have you had Ute lc:asc?
[241 A: I've had it since November of '97?
[251 C: Old your business receive a notice of the
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AQUA WAVE RENTALS INC. v.
CLEARWATER PARASAIL, INC.ET AI.
11INAL HHAlUNG
August 5,1998
Pogo 152
(I) Planning lUld Zoning Board hearing in thl!! Inatter?
[2) A: No, I dId not,
(31 Q: 00 you know If lIle property owner received a
[~I notice?
[5] A: No, I do not.
(6) Q: And you did not submit :my written comments to
171 the Planning and Zoning Board; correct?
[Bl A: 'Olat's correct. ,
[Il] Q: From your knowledge, how long has a per:mnal
110] watercraft rental business been operating at that
Ill] location. If you know?
112] A: Well, it started off -like Mr. Held said
[13] that license was Issued around 1980. But as far as
11~1 watercraft,l mean,lt was nrst rental of ski boats
[IS] there,And then they went to stand.ups, which was jet
[Ill] skis, That's where tIu: jet ski term carne from.111cy
f17J were Just stmd-ups,11te sit down models came In the
118) late '80's,
II~ Q: When you s:ty "ski boats" Is IJlat a waler ski?
[2OJ A: That's power boats, just smaU Iitlle power
{21] boats Is what they started off with there.
1221 Q: When you refer to "Ute license," would Ihat be
(23) the occupation license?
{2') A: Yes.
~S] Q: So as far as you know has it been a continuous
Pogo 149
111 wcntllown ami, basically, like -I don't know the best
121 way to orientate this. Usln~ Government Exhibit Number
13] 2, sir, if you don't mind iff L1ke that from YOll for n
1(1 seconll, You're all lite way down by lhe bridge, correct,
[51 by the Sand Key Urillge?
[61 A: Yes,
(7] Q: In facl, I work out at top there, so I know '
tal exactly where you arc. Now, you, basically, tell your
191 people that they dun't go down the entire pass to go out
[101 to the gulf, they just ~o out to the em) of the
1111 intercoastal water?
1.2) A: There is an exception on extremely low tllIe.
[131 Q: IUghl. ,
1141 A: We do senll people In the gulf, but not on
liS] Fridays, Saturdays or Sundays -
[.6] Q: IUght, I mean -
117] A: - because we don't allow It.
lIB] Q: Sorry about that. I didn't mean to cut you
119] off. Mr. Potthoff, please, If I do,l have a bad habit,
1201 and I'm working on It, If I do,
{21] But your general practice is when that pass Is
1221 busy, you send them out towards - you send them Into
(23] the intercoastal waterway?
12(] A: I would say 99.5 percent of Ute time they all
125] go out in the Intercoastal.
Il] operation of various types of vessels since 19801
l2J A: That's what I heard, yes, as far as I know.
(:I] Q: Now, is your operation seasonal or year round?
[(} A: My operation Is year round.
[5) Q: Docs business nuctuale somewhat willl the
(6] different seasons?
l7J A: Well, El Nino this year, it hurt us. Yes,
18] around january or February llslows down a nule bit.
IIlJ Qi Then docs it pick back up in?
/10] A: It Sbrts picking up in March, yes.
Ill] Q: IfI understand your counsel's comment, )'OU
[.21 arc now dropping your objection to the flats boat
{13] operation: is that correct?
[1'J A: That's correct.
11SJ Q: Your appeal is jusl regarding the jet skis or
{IS] the personal watercraft?
{17] A: Yes.
[18] Q: You mentioned cuslOmers from Shephard's
(19) walking over to Econo I.odge or transyersing different
/2flJ properties?
{21] A: Yes.
{22] Q: That's been your observation?
[23] A: Yes.
{241 Q: Now, wouldn't the public be able to walk at
[25] le:ast bc:1ow the rnJd to high tide line from one property
paga 150
Paga 153
(II Q: Now, they still have to go through some
(2) traffic out that way, correct?
13] A: Yes, there's some traffic.
I'] Q: Now, arc you familiar with where Mr. Conatser
IS] Is planning on running his business?
(0] A: Yes.
[7J Q: Now, you said you were about 200 feet from -
(8] I guess - I don't remember the exact feet. nut it was
19] 200 feet from?
110) A: TIle Sand Key Brillge,
1111 Q: From tile Sand Key Bridge.
112] A: Yes, approximately.
{13] Q: Approximately,And arc you familiar-I
[1(] didn't hear the answer, arc you familiar with where
IISJ Mr. Conatser is going to run his business?
116] A: Yes.
117] Q: Would it be fair to say lhat he's going to be
110] approximately 75 yards from 1I1e end of the no.wake zone?
[19] A: I would say that's approximate.
120) Q: RighI.
[211 A: Maybe a little more.
122] Q: IUght, abo\ltthe same dlstance,And I'm not
{23] asking you here for speculation, but to try to
{24] understand your rationale. If I told you that
[25] Mr. Conatser was planning on just having those people,
Pogo 151
Pago 154
[1) to lUlOUter along the beach? 111 escorting them straight out, and, going just - not back
[21 A: Yes, they can go back and forllt, (2] towards your area, not "cross tow.lrds Shephard's, but
[31 Q: So there's no physical or legal barrier 1I1at 13] just having them go out into the gulf, would that bc
[(] you know of for the public walking up and down the [4J somewhat similar to what you do by sending your people
IS] beach? [5) to the intercoastal?
16] A: Not that [ know of, [61 A: As far as - how do you mean "similar"?
m MS. DOUGALL-SIDES: No further questions. l7J Q: Well, similar - it's my understanding that
[BJ CROSS-EXAMINATION [0] Ule reason why you don't want them to go out to the gulf
[9] BV MR. SCHUEIT: 191 is because of that pass and because Shephard's Is so
110] Q: How arc you doing, Mr. Potthof17 (10J crowded and that lI\e whole Clearwater Pass is crowded?
1111 A: Fine. (II] A: That's correct.
1121 Q: Good.You said 1I1at Shephard's Is a bar. (12) Q: Is that a fair summary?
(13) It's also a hotel; is it not? [131 A: That's correct.
[I~I A: That's correct. [1(1 Q: So, therefore, you send them tIle other way,
115] Q: So it is a hotel. [15] you send U\em to lhe intercoastal?
(16] A: Yes. [16] A: That's correct. We don't have to deal with
1171 Q: You said that you had to have $3 million In [17] Shephard's.
(16) insurance coverage? [18] Q: IUghl.You don't havc to deal with
{IDI A: I've got $5 millIon, (19/ Shephard's? Now, }'ou'rc familiar with where
120] Q: $5 million, 120] Mr, Conatser's business is going to be run from?
~1' A: Yes, sir. {21] A: Yes, he's in between the large dangerous rocks
(22) Q: Does the Holiday Inn require that you have $5 [22] that arc right, where he's going to bring let skis in,
!23] million? [231 Q: Objection to U\e referencc of "large dangerous
(2(' A: 1l0lJday Inn requires It. 12~1 rocks," lundersWld.
~ Q: The nrst thins:! I would like to do Is, vou.all l251 A: And there's sOI~hotos about U\:I1.
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AQUA WAVE RENTALS INC. v.
ctEARWATER PARASAII.., INC.ET AI.
[t] 0: We'll get to that also. Now, )'ou were hcre
[2] when Deputy IlIghtower was testifying, right?
(3) A: 111at" correct,
(.) MR. ZlMMET: I.lulejohn or Noll?
151 MR, SCHUE1T: 1.ItUejohn.
IBI BY MR, SCHUE".:
(7J 0: Dasic:dly, the point Is that where he's
(B) running IUs business and Mr. Conatser is running a
[9] business, to get Ulem out In the gulf, which Is what his
(10) plan Is, that he would not have to go through Shephard's
[t t) or anything like that, were you here to hear lhat?
It21 A: Through Shephard's? You mean, just the gu1l1
[131 I mean, in the pass. You're talking aboul the pass.As
[141 far as Shephard's, you don't go through Shephard's,
[ISl 0: I understand.
[16) A: All the boats arc in front and back all around
[171 Shephard's in the pass,111ey arc anchored out there,
[IB) a: 111e boal area 'hat he would be going lhrough
[Ig] would not be out in front of Shephard's though,
[20] A: He's right behind Shephard's.
, [21} a: Olmy, th:tt would probably be casier with Ule
t22I pictures, and I'U get to that.
(23) Holiday Inn also has a bar; doesn't It?
(24) A: They have a Tiki bar.
[2S} a: Tiki bar,
[II A: Yes.
(2] a: And pcople can come up and buy drinks,
(3) correct?
I") A: Yes, they have hot dogs, hamburgers, soda.
{5) a: And people also can buy alcohol, can't they?
[B] A: 111at's corrcct.
{7] a: You do have boats that dock oUl in front of
[8] your location; do you nOl?
[a] A: To the side of U5.
[10] a: Because you have a buoy system?
[t t] A: We have anchors set up out there wilh buoys on
[12J Ulem, Ihat's correct?
[t3) a: Which is whal Mr, Conatser would also do in
1141 front oUtis business. But to the side of that, you do
[IS) have boats out in front of you?
1161 A: Ycs, we have a hundred foot - we spread our
(171 buoys out a hundred feet, because lhat's about how much
{181 you nced to get four waverunners in there. See when
{Ia] boats come through, you get big IUgh waves and stuff.
{20] And that was my comment about the rocks, because it's
{211 unsafe, because with thc waves coming in crashing-
122] Q: There's no wavcs In Ulat area.
123] A: But you still gct waves from the boat lraffic,
[24) and It's the gulf, you get swells coming in.
~ a: I don't know how to do this with the pictures,
FINAI.IIEAIUNG
August 5, 1998
Pilgn 155
Pogo 158
[II where hc would he running hl~ hUslne~s to the wesl.
[2] A: 1'0 the west
13] a: 1111~ pIcture right here, the next pIcture on
14) the next pagc on Ihe top, docs not show Mr. Conatscr's
IS] location, docs it?
(6) A: No, it docs nolo
m Q: In fact, Mr, Conalser's local!on 15 on thc
[61 olher side of this picture; Is It not?
[9] A: It 15 on the olher ~idc.
[10] Q: It's on the olhcr side. Isn't there a Iittlc
[lI] area where they can walk past there with beer on the
112) other side before you get to his location?
113] A: That I don't know ahout.
II"] a: You don't know.
lIS] A: No.
II6J a: Let's go to the ncxt - but with respect 10
[171 lids top picture, that Is not actually a picture of lhe
[181 area where he would be running his business out of, is
[191 it?
[201 A: No, it's not.
(211 a: And the picture on lhe bottom, is that a
[22] picture of the area that he would be running his
[23) business out of, is il?
(24] A: No,
[25] a: Flipping to the next page, 100k4!g at this.
Paga 156
Paga 159
[I] Now, you say that litis 15 - lhe top picture is the
I2J entrance to Shephard's; is that correct?
131 A: Yes.
[41 a: And tllat would be the cast.side entrance,
[S) wouidn't it?
[61 A: EaSl side.
m a: And Mr. Conatser is going to run his business
[alan the west side; would he not?
[9] A: 111e west side.
[10] a: So lhis docs nol picture any area where
(Ill Mr. Conalser will be running his business?
112] A: No, you can't see It through here.
IIa] a: And lIlIs area right here on the nexl picture
II.] down below, Ulat is also not pictured in an arca where
lIS] he would be running his business, docs it?
[IG) A: No, not there.
[I1l a: This picture right here, the top picture on
[18) lIle next thing, where is lhat a plclure from?
[101 A: From the cast side.
[201 a: From the easl side. Is that a picture there
[211 where he would be running his business?
[22) A: Yes, you might be abie to get a piece of it
[231 right there.
[2"1 a: It would be off to the way right.
~ A: Yes.
pago 157
Pago 160
[t] because of the fact that I want 10 point out a few [I] 0: nut you're not exactly sure if it actuaUy is
[2] things on these pictures. I guess, I'll just try. Let [21 a picce?
13] me get a copy. (3J A: I would say thaI's probably a part of il, yes.
["] MR. SCHUETT: And I will ask Mr.Johnston - [4] 0: 1be piclure down below is that from the same
[5] the Judge that he foUow along. (5] location?
[B) Do you have a copy of those pictures? I know 16] A: Yes.
m you handed them around. I've got papers all over m a: Next picture -
[81 the area - I'm used to having a 101 of area to 18] A: 'lbat might have showed his business over there
[91 spread out all around. 19J where It was run al.
[IC] BY MR. SCHUE1T: (ICJ a: Do you actually see his boat or his business
{I II a: I'm going to show you Exhibil4, of the first II I] lhere:?
(121 page, and Uus is obviously a copy.And that lop /12) A: Yes, it would be rlghl on lhe other sidc of
[131 piClure on the top, there's not, lItat area docs not [131 lhat rock,
[14) picture whcrc Mr. Conatser will be running his business [14) 0: It's on the side of the rock?
[t5] out of, docs it? [151 A: Yes,
116] A: No, it docs not. [lBI a: Okay.
[t71 a: This picture on the bottom does not picture [I1l A: No, his boat wasn'tlhere tlle day I came by,
[18] lIle area where Mr. Conatser will be running his business [181 0: 111e next picture on the next side:111at's a
119} out of, docs it? [101 picture of -I guess, the little girl up front. What
(20) A: Well, actually, I've never heard where hc's [201 is the other picture 017
(211 going to run the buslncss, Right where IUs parasaiJ [211 A: Just pcople on lhc beach.
1221 boat is at? Is that whcre you're going to put It at? [221 a: What area?
[23] a: No. [23] A: 11tis is the cast sidc.
[2.1 A: No, it Is not. [2'1 0: And, again, that's not going to be a picture
~l a: In fact, they're both pointing to the cast, l251 of U1C arca whcre Mr. Conatser is Roing to be run_nJng
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v
AQUA WAVE RENTALS INC. v.
clEARWATER PARASAIL, INC.ET At
111NAL III~AIUNG
August 5, 1998
Pogu 161
1'11\10164
[11 MR. SCHUETT: I would like to argue that,
I'll Mr. Putlhoff on the other side during his testimony
13] on direct, he made reference to the fact that there
I.] wa~ a bar. he made reference to how his business
IS] ran, nnd tried to make rderences to how Shephard's
16J and nil this. AmI I think I've just shown that
(7) there Isn't any differences. So I think It's a
[BI very fair question to ask, why Cllfrs business
[91 would have any more of an Impact on that area than
[101 his business docs? I Utlnk that's a very fair
(III question. It's what he's testllied to.
(12) THE COURT: Arc }'ou conceding that the
1\31 applicant's business 15 s:,fe?
II"] MR. CORSMEIER: I don't know yet, he doesn't
115] have it yet. So I wouldn't concede thaI. Our
{IB] client has testified 10 his procedures that he uses
[17} for operating hls business.
[IBI THE COURT: I will overrule the objection.
[191 MR. SCHUETT: So you want him to answer the
[201 question?
['211 THE COURT: Yes.
[22l
(23]
124]
(25]
[II his business out, of, Is It?
I'll A: Here It 15.
(3] Q: Where you're IndlcaUng Is that way off to the
1.1 left?
(5) A: Yes.
[81 Q: And thaI'S over by the end of the building on
[7J the Ieft.hand side?
[81 A: Ves.
[lll Q: And this fmal picture Is also.
ItO] A: It's off to the cast side here.
Ill) Q: Dut, again, not a picture of the area, not an
112) actual picture of where he 15 going to be running his
(t3] busmess from, is It.
(I.] A: No.
l'S] Q: And would it be safe to aSSllme with the last
[16) three pictures that's the same Instead of going one by
[17) one through them? These are not pictures of the area
[181 where he's going to be running his business out of?
[191 A: Ves, that is the area where he runs Ids
('lO1 busmess out of, I would say.
I'lll Q: Well, we can do tillS -
122] A: Okay.
(23) Q: Where he's going to actually have his area,
['2"] where he's going to let his W.lverunners go out, Is that
(2S] pictured In that area?
BY MR. SCHUETT:
Q: Would you please answer the question.
A: Please ask me the question again.
Q: I'm sorry. I'm a Unle tired today.
Pago 162
pago 165
[II A: TIlls picture, no.
[21 Q: Is it pIctured in any of these pictures of
(3) this area?
[4) A: I did show you some places where there was.
(5] Q: Where you tilOught he was going to be in an
[B] area?
[7J A: Ves, that was part of his area,
fB] Q: But Ulese arc fM away plclures unlike up close
, (9] pictures of h1s area?
(10] So, except for the one or two references you
{II] made to far away references, there's no actual pictures
(12] in here of where Mr. Conatser Is gomg to run h1s
(13] busmess from, Is there?
II"] A: Actual pictures.There was piclures of where
1151 he could run his business out of - there's parIS of It
lIB) on there.
(17) Q: ('U go through tilem with Mr. Conatser.
[lBI So, ba:;icaUy, you run your waverunners by a
[1111 hotel?
[201 A: Behind the Holiday (nn Sunsprce.
[211 Q: And if Mr. Conatser, If he S!)t his permit, he
[22l would be running h1s by :1 hotel? Shephard's Is a hotel?
[23] A: Ves.
[2.] Q: Holida}' Inn has a bar?
125] A: A TIki bar, correct.
(I] THE COURT: Ask h1m Ihe question one more time
[2) agAm, please,
[3) BY MR. SCHUETT:
['I Q: How 15 his business going to have any more of
[51 an Impact than yours docs in that area?
[61 A: As far as <.lrmklng? Is that what you're
(7) talking about impact?
[81 Q: No, My understanding from whal your counsel
[II] argued on open, was Utat you thought that having
110] Mr. Conatser was going to have an Impact on the safety
Iltl of the area.
112) A: That's correct.
(13] Q: My question 10 you Is, how Is his going to
{14] have any more of an impact on the safety of Ute area
{IS] than yours will?
[16] A: Anymore boals in that area Is going 10 be
[17J unsafe, anymore. It Is already, already, an unsafe
[lB[ area. It's very unsafe, There's people out there
[19[ swimm1ng from Holiday Inn aU Ule way up to the Itamada,
[201 r mean, all the way up. People swim along there. And
[211 any more rental companies In that area wlll be unsafe.
[221 Q: So you're saying one more boat? I'm just
[231 asking-
[2.1 MR. CORSMEIER: Asked and answered.
(25] BY MR. SCHUETT:
pago 163
Pogo 166
II] Q: And Shephard's has a bar. 11) 'Q: How arc you gomg to Insure that other boats
12J A: That's correct. 12] and oUter personal watercraft don't come in there and
13) Q: Vou dlrecl your customers to st:ty oul of going 13] make it any more unsafe:?
(.) down - 14] A: How am I going to Insure in
{S) THE COURT: Excuse me, but you don't need to 15] Q: That's the concern.
(61 repeat everythlng he testifies to. IB] A: l'Uleave that up to Mr. Held; he's the
(7) MR. SCHUETT: Okay, [7J lIarbormaster.
(8) BY MR. SCHUETT: IB] MR. SCHUETT: I have no furtiler questions.
(Ol Q: Vou run four waverunners? 19] THE COURT: Redirect.
[101 A: Ves, sir. [10] MR. CORSMEIER: Just a couplc,Judge.
[111 Q: I guess the simp list quesl10n 15 how Is your [1l] REDIRECT EXAMINATION
[121 operation any safer Ulan his operation? [12) BY MR. CORSMEIER:
[131 A: To Ute pomt - [13] Q: Mr, Schuett asked you aboutthel'lkI bar at
[141 MR. CORSMEIER: I just object. I don't know [1.] Ute Holiday Inn.
(IS) that thaI's actually an Issue for you to consider [IS] A: Ves.
(16] whether his operation is safer or not. Thc (16[ Q: What's the size of thaI?
[t7) questions that we've raised and we've presented to (17) A: The Tiki bar itself is approximately 9 fOOL by
(Ill] you Is wheUlcr the addil10nal personal watercraft [181 15 feet.
119] should raise safety concerns, not whelher his [191 Q: What Is lotal number of people Ihat can sit
1201 operation would be safer than Ius operation. ('lO1 there?
12\) THE COURT: So you don't feel that's an Issue? ['211 A: I think they have Iike:l dozen bar stools and
(22) MR. CORSMEIER: Rlght.Whether his - the [221 four maybe live lables,
(231 various operations will be safer than the other f231 Q: How big Is that In rclatlon to Shephard's?
[241 one. I don't think that's an issue before you (2.1 A: Where the band plays at Shephard's you can set
~] today. ' 125] theTlkl bar on lhat.
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AQUA WAVE RENTALS INC. v.
CLEARWATER PARASAIL, INC.ET AL
I1INAI. I1EAIUNG
August 5, 1998
Pagn 170
paga 167
II] A: I'm a boat captain. r own LI parasall company
[2] out of Shephard's 1~1Roon Uesort.llease property
13J from - I lease an area from Shephard's, I'm affiliated
14] with Shephard's, Ile;lse just like the other gentleman
IS) docs.
161 a: On that piece of property, if you could kind
(71 of explain to the Judge where your relation is to that
[01 piece of property to Shephard's?
[B] A: I'm at the far west end of Shephard's on
[10] Shephard's property. )'m in their parking lot,
Ill) baslcally.11ley have the Tiki bar,111ey have a large
112] walkway.Then they have the parking loLAnd then
113] would come my business after that.
Pi] a: So you're at the far end?
[IS) A: I'm as far west as YOll can get on that
[101 property. I'm at least 200 feet from going into the bar
[17) area, even getting dose.
[IBI Q: Could you explain kind of your - for lack of
[IB] a better term, your marine or your water background.
[?O] A: [carry a 100Ton License. I worked out of
(21) New Orleans, ran crew boats. Been running private boats
122] for quite a Jew years. [ was a commercial divcr.
123] Basically, that's It.
124] a: When you t.'dk about 100 Ton License, kind of
125] expJain that to the Judge, [ didn't undcrst.1nd It at
II) Q: And what is the general-ii's Holiday Inn
121 there that's got the Tiki bar, correct?
PI A: 1113t'5 correct.
141 a: When you rent at your location, do you h:1Ve
15] occasion - docs anyone, do you ever see an}'onc come
[6] from theTlkl bar and try to rent a watercraft,lfyou
[7) do, what would }'ou do?
[8] A: I can't really see them.11lcy come down the
(9] sbirs to me. Once they get there, if somebody comes up
110] and they have a beer In their hand, they arc delinltely
(II] refused. And just like I said before, we look at their
(121 eyes, and we can smell it. It's obvlous,And we do
(13) refuse them,
1141 a: These photographs that you -I'm not going to
[IS] make you go through them again, believe me. But the
[16] maximum Jength of that you were away from the location
(17) that Mr. Conatser':; parasail operates from, what's the
lIB] farthest away that you stood in t.1king these
(19] photographs?
(20) A: Ten fcet,10 fect to 20 feet from where he has
(21) h15 business.
1221 Q: How about whcn you took the photograph of the
1231 photo from the line between the Econo Lodge and
1241 Shephard's, where is that In relation to his business?
(25] A: I would say that where I took that photo from
Po.go 168
Pogo 171
[11 the cast side where the: fence was at to his business was
[2] probably 200 feet approximate.
(3] MR. CORSMEIER: That's aU I have.TImnk you.
(4] MR. SCHUETf: Judge, I only have one question.
[5] Since the pictures arc a major issue, and sincc he
[6J did say ten feet, I'd really like to be able to ask
[7) which picture was ten feet from his location',
lB] that's a major point to me. I didn't object to it.
(OJ But I'd like to see: which one it Is.
(101 THE WITNESS: 111e bottom one right herc.
(I II MR. SCHUE:TI: Can I ask just two questions
1121 based on that?
(131 THE COURT: Yes.
[141 RECROSS.EXAMINATION
[15] BY MR. SCHUETf:
[16] Q: That bOllom one right there was ten feet from
[17) his property.
[10) A: Right here.
[19] Q: So was YOllr back to his property when you were
[20] taking that picture?
[211 A: Yes.
[22] MR. SCHUETf: TIlat's all I have.
[23] MR. CORSMEIER: When you say "property" you're
[24] t:t1king about Ule location of his parasall
[2S] business? Is Ulat what you mean by that?
II] first
(2) A: A 100Ton license means I can run a ship up to
131 one hundred tons, Like any of these gambling boats, r
141 can run them.TIlere's certain sizes.
[51 Q: Docs your wife also help you in this field?
[0] A: My wifc helps me. She works as a paralegal
[7) for the Trial Division of Nationwide in tilC claims
[0] department, so shc's very familiar with Insurance,
[9] liability, et cetera.
lID] Q: Now, you said - how long, again, have you
11 I] been running litis pamsail business?
112] A: This is our second year in business.
113] a: What. is your safety record?
114] A: We've had no complaints thus far. Knock on
[15} wood.
[16) a: Knock on wood. Have you received any
[17) citations?
[101 A: No citations,
[IBI a: We talked a mile bit earlier and Mr, Held
[20] told me about the wake zone. Will you explain to the
[211 Judge why you went to them on the wake zone?
[22] A: They were aU talking about safety, Jimmy, a
[23] friend of mine here, partner, we were looking at that
[24) scvcr.l1 times, and Ulese boats, even U1C bigger fishing
(25] boats will come in at a very high speed,And they had
Pogo 169
Pag~ 172
[1] MR. SCHUETf: Right. His back was to where he (I] to stop or slow down, past, right past your place,
(2] was going to run Ule: parasall business. l2J MR.jASMIN: JUght past Ule QuaUty Inn, not
(3] THE COURT: Anything further? Any further [3J quite, almost.
[iJ evidence from Ule appellant? (4J A: Anyway they had to slow down at that point.
(5] MR. CORSMEIER: NO,judge, I would just like IS) So they werc coming at a very fast speed. So I just
(0) to look to make sure we don't want to present an)' (OJ thought for safety, because there arc a lot of boats
l7J more exhibits, if not we'll rest.We'll rest. [7) that anchor at a certain part of Shephard's and the
161 THE COURT: As I understand the City has no IS) Quality Inn, and the Holiday Inn.And they do anchor,
(9J witnesses to call. But there is one more witness. IBI and these boats get pushed around, and people could get
(IOJ MR, SCHUETf: One more witness. (10) caught between Ule boats,
I111 [Off-Ule-record discussion. I (II) I went to tell Mr. Shephard, "Mr, Shephard, it
{121 111E COUR1':Would you raise your hand and be [121 would not hurt to move this thing further out." I said.
113] sworn, Do you solemnly swear or affirm your {l31 Most places I'Ve ever been out of New Orleans,
[141 tesUmoll}' at this hearing wlll be the truth, the [141 Mississippi, California, anywhere I'Ve ever heen, ['ve
[15] whole trUUl and nothing but the truth? [151 Seen mosl- the end of the jClly is where the no w;lke
[161 THE WITNESS: [do, sir. [101 slarts. I mean,lt doesn't start in thc middle of a
[17) CLIFTON H. CONATSER [171 channel.1t usually starts at the very beginning where
[18] being duly sworn, was examined and testified as follows: [181 thc rocks start.They did agree to move it out 350 feet
[10] DIRECT EXAMINATION [19] or 350 }':\rds, I believe, it was, which takes another
[20] BY MR, SCHUETT: 1201 minute and a half at a thousand rpm's to get to that
[21] Q: Would you please stale your fulJ name for the [211 point. [ don't know why It wasn't done before, years
[22] record. [22] aso.
[23] A: CUff Conatser, c.O.N.A.T.S-E-R. [23] BY MR. SCHUETf:
[2i] Q: Cliff, what do you currentIy do right now? [24] Q: 111at minute and a half, kind of relate that to
~J What Is your business? [25] us.
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AQUA WAVE RENTALS INC. v.
CLEARWATER PARASAlL, INC.ET AI.
rago 173
111 A: Il takes a minute ami n half to gct from the
12l old one to Ule new one at a thousand rpm's, which means
(3) It's such liltlc time.The complaint was the bigger
[41 fishermen, they had to waste time. A minute and a half
[&1 in a day is not going to hurl.And that was the blAAcst
(61 complalnt.l wanted it moved out furUler, butthcy wcnt
(7] as far as they would go with it.
(6] Q: l.el'S move on to the waverunner and
(9] everybody's been l."\lking about safet)'.
(10) TIle Judge upholds the decision of the Planning
(II) and Zoning noard,You get your permit. Walk him
(12) through the safety. I mean, that's what everybody's
1131 bringing up here. Walk him Unough what you're going to
[141 do.
[15] A: Well, basically, I wiU do the same thing as
[16) the gentleman here docs. I will inform them on certain
(17) things that Ulcy've got to know on running Ihe actual
(16] jet ski or waverunner, I should say. I will put them
(19] basically through a little, some kind of course that I'm
!2OJ still in the middle of devising, because we haven't got
[211 started yet, because of the delay. We arc putling a
[22) lItlle,like, small little - what you would call a
[23] booklct or pamphlet together, they'll have to read and
(24) initial.
~ We arc going to have the wavier ~ which here
rago 174
III I've got a copy of, which I would mUler not put into
t4!] evidence, because I wouldn't want my competition getting
[3) a hold of it. It's bnsicnlly the rules and regulations
[4) the}' have to follow when Uley're on the waverunner,
[5] which docs say they cannot jump wakes.They cannot be
[6) 500 feet within ~ if they're within 500 feet they have
(7] to be in idle speed of any land or any mass:nlCY
[8] cannot get any closer than 200 feet next to another
(9] vessel or we willtermlnate their remaining time and
(10] keep their monies. They cannot get any closer than 100
(II] feet of another jet ski, even to chit-chat.
('21 We've got some very, very stringent rules laid
(13) down that they have to follow. And we arc going to give
[141 them - seeing's how I'm a boat captain, having been
1151 doing this for quite a while,l ;\m going to give them a
[16] basic rules of the road type of c1nss, which will be
[17] information they'U know on certain things which they
[18] should do and they shouldn't do and they're aUowed to
[101 do and not allowed to do.
[20] Q: You mentioned to me earlier that - well, do
[21) you remember when the deputy W;\S up here talking about
[22] Ulat course WiUl waverunners, do you remember that?
123] A: Yes,
(24) Q: You mentioned that you're in the process -
125} would you explain to U\e jud~
PDgD 175
[1) A: I'm in the process of sending away for that.
[2) I will be able to give Ulat test. Il's Ule boater's
(3) safety card. I've contacted Tallahassee. I've gollen
[4] Ule paperwork back and now it's a maller of sending my
[S] application back, to be able to give that certification.
[6] Q: As far as your understanding of the rules for
[7] running a W:lverunner business, arc you required to
(8] actually give Ulat?
(91 A: No.1 don't have to. I can't let them
(lO) operate it at a certain age without it, but I don't have
[I II to give it.
[121 Q: Let's lalk about Shephard's. Everybody's
ll31 talked about the alcohol and it seems to be a concern.
[141 Let's first talk about the alcohol and how you're going
(15] to deal with that,
[16] A: I'm going to deal with it UIe same as I deal
('7] WiUl my parasail busine5s. No one is going to get on my
(18) boat drunk, in any way, shape, or form intoxicated; it's
(19] my license; It's my insurance.
(20) I mean, you know, everybody's talking about
[211 Shephard's. I don't know what the big deal Is, We're
[221 looking here at the waverunners, not Shephard's, J am
[23] not Shephard's.Ju5t because people drink at Shephard's
[24) doesn't mean they're going to go waverunning. Most of
l251 those people who arc drinkiRJ~ there stav to themselves
FINAl. IIEAIUNG
August 5, 1998
PIl\)O 17G
[lion boats and waverunners.They don't wanl my
(2) waverunner.I'm gelling touriSls from the hOlels lIfOund
[3] the surrounding area, across the streel, the Ramada Inn,
[4] just like he draws people from,The Hconn Lodge, I'Ve
(5) had people from the Econo Lodge go par.lsalling with me.
(6) So, I'm saying It's all the hotels I'll be
(7] draining from, I'm not gelling t!le pcople that Jt{> to
181 that bnr.l1le people that go to that bar, go to drink,
(9] dance and whatever else they do:l1ley're not there to
[10) go ride on my wavcrunners necessarily, If they were
[11) there and they wanted to go on a waverunner, they
[12] wouldn't be allowed drunk, just like he wouldn't allow
(13] Ihcm, or anybody else would allow them. It's specific
[14] of my business and liability.
[16) Q: TIle second issue that hns been brought up
(161 about Shephard's Is, is there's a big crowd out in front
[17] of Shephard's, tons of boats and all thal. Would you
[18] explain to the judge how you're planning on dealing with
[19) that?
[20] A: He's talking about not let ling his pcople go
[21] down U\at way Friday, Saturday and Sunday, Well, I can
(22] understand thaI. I really can. But where I will be
(23) located, I wilt be at the west end of all that. What
[241 he's calling a mess or totally dangerous or totlllly
(251 unsnfe; I wllJ be at the west end of that, I will be
pago 177
(1) laking out Ule other way. I will be doing just the same
[2] thing he's doing. lIe's going the opposite way of alt
(3] that traffic. I'm going the opposite way of that
[4] tmmc.
(5] I hate to bicker, but I don't believe that
(61 anybody cnn control that boat traffic in there. One
(7] more boat -I mean, I don't know who is going to be
(0] able to stop one more bOllt coming in, Once more boats
(Il] coming In, five more boats coming ill.
[10] Q: We have kind of handled the on the beach
[11] stuff. What is going to be your controlled mechanism
[121 once they start?
[13] A: We arc going to have a full time person. I
[14) have four, full-time people now with my pamsail, which
(16] I'm over staffed. nut I will have probably tltree or
1161 four people just for the jet skis. I'll be working
(17] different hours.l11ey won't be working the whole day,
liB] nut we will have a person actually that wiil be
ll9] monitoring those people a hundred percent of the time.
(20) I won't be slUing on the beach like a lot of companies
[21] do.l1lere will be somebody outlhere running around on
[22] that actual chase boal.l1ley won't be just siuing
[23] Ihere waiting for an emergency to happen; they will be
[24] out on It:nley will be monitoring these people on the
~et skis - the waverunners,
rago 178
(I) Q: Now the ingress, the area to go from your
[21 location out to where they arc allowed to use them, do
(3) YOll plan on using any marking system or anything like
[41 that?
(5) A: I have to - the City, one of the requirements
[6] from the City, was to m:lrk an area so they could come in
I7l and out, so Uley knew their nrea.And that is an idle
l61 speed zone, so Uley have to go slow. So they just come
{9] right in, pull up, we take it away from them, and Ihey
[10) go about Uleir day.
[11) Q: 11\e area that you're going to be operating out
[12] of is that an area where Ulere's swimmers?
[13] A: Very few. WIllIt I've done is -I've,
[14] actually, made for the swimmers of Sheph:ud's, because
[15] it is a resort, it is also a hotel, :md the boat is on
[16J the othcr side where I'll be. I've actually made a
(17} liule swimming area so Ihey could swim. 1 put buoys
(18) out so that people can go out there and swim without
(191 being worried aboUlthe boats, like you said anchoring
(20) boats and jet skis. And I've been chasing the people
(211 awny. and it has been working.
[221 Q: Now, let's tnlk about insumncc. ( menn, what
(23] kind oflnsurancc arc you going to have to cnrry?
(24) A: I have 10 carry a million dollar policy. I'm
12S1 not reCluired - Yilu only have to do aj300,OOO insurance
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AQUA WAVE RENTALS INC. v.
O.EARWATER PARA5A1L, INC,ET AL
II] policy. When t looked into going to the 1I01ld:1Y Inn for
[2] tile parasaU, they request tint you have $5 million.
131 There is no other option. It's not th:tl you arc
141 requIred to have It, but the Holiday Inn requires It.
{51 So what I'm required to have Is $300,000 by the City, I
[61 belJeve, $100,000. $300,000,1 believe, It was. nut
[7J I'Ve got a mUlion daUar coverage polley. I'm not
[6] required by Shepherd's to have any more.
[9] Q: What happens if It getll real crJ.zy out there,
[10] CIlff,1 mean, we've heard thatU's bad out there.
Ill] Have you ever shut down the operation?
112] A: I've shut down my parasail operation when il's
113] too rough. I closed down one holiday weekend because
114] tllere was just too many boats out there. I lust closcd
1151 it down. 1 didn't want people out when It's not safe.
1161 Q: You'l'e giving up money.
117] A: Well, I would give up my business if someone
(161 gets hurt too bad.
[19] MR. SCHUETT: I don't have anything further at
[20] thIs lime;
[211 MS. DOUGALL-SIDES: I just have one or two'
[22] questions.
123]
[24]
[25]
DIRECT EXAMINATION
BY MS. DOUGALL-SIDES:
Q: Mr. Conatser, are you aware of any changes
[I] that occurred, let's say since 1990, to the channel
[2] location In Clearwater Pass?
[3] A: The channel has been moved probably 50 to 75
I.] yards or even furUler over to the - would be the south
IS) side of the channe1.The channel used to run right by
(6) Shephard's, right by Holiday Inn, right by everything,
l7J That's when the old bridge was there.111e bridge was
161 moved - or redone, which arc pretty big pilings there
191 to go through when you go in the intercoastal, but
1101 anyway, the bridge has been moved and the channel has
{III been moved down.
(12] Q: Was the channel aetullUy redredged, do you
[13) know?
[141 A: No, there was just plenty of water in there
[15] because of currents going in.
[16] Q: So the markings of the channel were moved. Is
[\7] what you're saying?
(18] A: The m:ukings have been moved anti made It so
(19] that -the bridge tender doesn't have to be there
[20) anymore, which made it a lot safer, keeps the trJffic
(21) going at a steady pace. It doesn't get backed up like
(22] it used to. I used to be in the channel when it had
(23) that, and it got very, very hectic.
124] Q: So is it fair to say the channel Is more
i2S) toward the middle of the pass?
II) A: Yes, the channel now is in Ule middle of the
121 pass.
(3] Q: When you mentioned the bridge tender, was
(4) there a change of the bridge from a drolw bridge 10 a six
151 spall bridge?
(61 A: It's a six span bridge now.
l7J Q: So it docs not open and dose?
161 A: NO,111C traffic is not slowed down like it
191 used to be. Years ago - when I used to work on the
(101 Crown Empress, going through that old bridge let me tell
[111 you was a job.
[121 Q: So in your opinion 15 there a dlffercnce from
[131 the old draw bridge to the new six span?
[141 A: Yes, there's more area to go through.The
(lSI traffic is able to go at a steady pace now, without
[161 having to back up - the bigger boats have to back up,
[17] and get in the way.
[181 MS, DOUGALL.SIDES: Notlting further.
[191 MR. CORSMEIER: Just a few, Your Honor.
[2Ol CROSS-EXAMINATION
[211 BY MR. CORSMEIER:
[22] Q: Following up on Ulat question.Are you
[23) planning on sending anybody through past, through all
[24] the boats -
[25] A: To the intercoastal.
PagD 170
pago 180
Pago 1 B1
FINAl. IIEAlUNG
August 5, 1998
PallO 182
II] Q: - to the Intcrcoastnl?
121 A: No.
131 Q: So you're not Aolng to semI people through
(41 that conge5led nrca past Shephard's to opemtc the
[51 personal watercrafH
[61 A: No.And there's two reasons why, One re:lson
[7] Is, when the water Aets too shallow In the interco:lslal,
[II) it's dangerous.lf:1 person falls off, they can break
[9] their neck, If It's too shallow. And eYen in high tide
110) there's still many places in that channel In that
Ill] Inlerconstal which I won't even parasaitln there,
112J bcc:1use If someone falls, J don't know where they're
113) going land. But there's some very shallow SpOIS in that
{141 intereoaslal,lf a person docs not know exactly where
[151 they are, they can fall orf amI still break a leg,
[161 Q: But your parasail boat draws a lot more watcr
[17] than a personal watercraft, correct?
[16] A: If someone fnlls off the jet ski, they're
(19] going to draw some water to him.
['20] Q: Yes or no?
[21] A: Yes, it does.
122] Q: Now, you applied for this conditional use
123] because you wanted to make money, right? Let's be
12-4] honest.
['25)' A: Yes, sir.
Page 183
{II Q: You wanted to make a profit on this, right?
121 A: Yes.
[3l Q: And because of that interest, you asked for
[4] this hearing to be expedited or your attorney did,
[5] right?
[6] A: Yes, sir.
[7] Q: And your parJ.saU boat, you just talked about
(6] that, that's an operation that you've got perroisslon to
[9] do, right?
110] A: Yes, I do.
Ill) Q: You've already got that.]ust like
(12) Mr, Potthoff has his use permit and that is Ule pcrsonnl
1131 watercraft.
[141 A: Well, I've got something to add to that
[151 though.
[161 Q: Well, yes or no?
[17] A: Yes.
[18] Q: What do you need to add?
[\9) A: Well, the Holld1Y Inn also has parasalllng
[20] rights, they have water-skiing rights.
[21) Q: I'm talking about Mr. Potthoff,
[22] A: Okay. I'm just leuing you know,l mean, what
(23] my hotel's got and what Uleir hotel has got.
[24] Q: So you already have an existing use that
~ou've got permiSSion to use like Mr, Potthon?
Pogo 184
11] A: Yes,
[1] Q: But you don't have permission - or you didn't
[3] have permission until the Planning and Zoning Board
(-4] agreed to give you the conditional use permit?
IS) A: IUght. I had to go through the proper
16] channels for thal.
[71 Q: And these four personal watercrafts you ~ent
161 they will increase the nllmber of boats or personal
191 watercrafts in the Clearwater Pass area in front of
{IOI Shephard's, correct?
{III A: A new car Increases traffic.
(121 Q: You're going to send these folks, if, in fact,
[131 you were to receive this conditional use, you were
[\41 planning on sending these folks out to the gulf,
[151 correct?
[161 A: Yes, sir.
[17] Q: Outside of your vision, correct?
[181 A: Like I said, we will have somebody out there
[19] monitoring it. Outside of my vision, probably because
[20] J'll be on the parasail boat, running the parasail boat.
[211 Q: Are you going to have somebody out on the
[22] chase bont monitoring everybody all the time?
[23] A: Yes,
[24) Q: l1lat's something you plan on doing?
[25] A: Yes, sir.
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AQUA WAVE RENTALS INC. v.
CLEARWATER PARASAIL, INC,ET AL
FINAL HEARING
August 5, 1998
~....________________.__...----.----"-+_ _____...........-.--____ _~r......,._~____ .-_
Pogo 168
paga 185
II) Q: But It won't be you?
121 A: I'll be obviously out there running the
PI parasall boat. It might be me at Urnes, when I get
[4) another captnln to run my parasail boat.
[51 a: You're a licensed captain, right?
[II] A: Yes.
[7] a: But the person Ulat's going to operate that
IB] chase boat, lr It's not you, it's most likely not going
19] to be a licensed captain?
[10) A: [don't know that. One of lhe people who
[11) works for me, too, is getting his license. So [ can't
[121 say thal.1ltey will be informed prope'rly how to run
1131 them and what they need to know.
1141 a: Do you agree that there arc a lot of personal
(151 watercraft that arc used In the area In front of
1111] Shephard's, on the weekends especially?
117] A: I agree there's watercraft being used all
II B) over.
(ID] a: No.Arc there in front of Shephard's many and
(20) numerous personal watercraft used and ridden in the area
[21) In front of Shephard's?
[221 A: Well, yes, they go by going to different
[Zll places.They go home, TIley go wherever they're going.
(24] They go by there all the time.
(25) a: And you agree that that gets pretty congested
II) watercraft-
(21 A: '1l1at could not necessarily be In front of
PI Shephard's. It could be In front of the Hcono I.odge fur
[41 as far as ) know,
[5] a: Now, you said you closed your parasall
[6] operation because there were too many boats?
(7] A: Well, it was just too much traffic, ) just
IB] didn't wunt to bother with it.
19] Q: So at that time it seemed too congested to
[10) actually operate your purasall operation, right?
[II) A: It wasn't too congested.) just didn't feci
[121 like running the parasail operation tilat day.
[13] Q: So now your position is that it wasn't too
114] congested, you just didn't feelUke running it?
115) A: I'm saying that whem:ver I feel that there's
1111) too much traffic anywhere, or there's too much of
117] anything that is going to be unsafe with boaters out
liB] there that just got their boat for the first day, I'm
(19) out in Ule middle of the gulf and it's a busy holiday
[201 weekend, ('ve got somebody up in the air dangling a
[211 thousand feet, a thousand feet from the boat, and I've
[221 got to make a turn and this guy doesn't know what he's
[23] doing; he's not paying attention, or hc's drunk. No,
[24] I'm not going to be operaUng.
(25] a: But you're not going to rent to the people
Paga186
Poga189
II] on the weekends, right?
(2) A: No more Ulan anywhere else.
PJ a: Anywhere e(se?11lere arc other places that
(41 become more congested?
[51 A: Any channel, under the bridgc, any
[II] intercoastal, any intercoastal waterway gets congested
[7] on the weekend. If you're going from Belleair Bridge to
[8] the Courtney Campbell C.111SeWa}', you're going to go
[9] through a lot of boat traffic.
I1DJ Q: Would you agree Ulat the area where
11 I] Mr. Potthoff rents his personal watercraft is a lot less
112] congested than the area you W.lntto run them, correct?
113] A: I would say the area ('m renting from Is not
(l4] more congested than his, because I will not be where
115] he's taking pichlres of and you're showing my location.
[IB] Q: Yes or no?
(17) A: So, in other words, no.
lIB] Q: No.You don't agree that it's much more
[191 congested in your area where you're going to run them?
[201 A: No, (don't.
[211 Q: And the location that you asked for permission
[221 in the application, th;\1's Ule Shephard's property,
[23] right?
(24] A: Yes,
~] a: You're going to rent Ulem off of Shephard's
11] that arc drunk, right?
(2J A: No, sir. I said somebody else, It might have
(3] been you on the boat that was drinking, I didn't know,
(4) Q: Or you?
151 A: Or me,
[III a: Whoever?
[7] A: Yes.
[B] MR. CORSMEIER: I Utink that's going to be it,
[9] Judge.1bank you.
{ID] THE COURT: Redirect.
Ill] REDIRECT EXAMINATION
112] BY MR. SCHUETf:
113] Q: TIlose pictures that were brought in, did you
[14] have a chance to look at this picture that Mr. Potthoff
(IS] put in?
116[ A: Yes.
[17) a: Arc any of those pictures actual pictures of
[lBI your locution?
[t91 A: No, not a one.
[20i Q: Could you explain -
[21) A: Well, I say not my locution, that is in front
[22] of Shephard's which is Ule property) work off of.
[23] Q: Explain the difference - why you looked over'
(24] at me when Ulose pictures came in and said, 'That's not
(25) relevant"?
Puga 187
Poga 100
II] property? II] A: Becuuse right directly in front of Shephard's
(2) A: Yes, sir. 12] there's a whole lot of boats that anchor therc, I do not
13J Q: And there's noUling from keeping you from 13] disagree WiU, it, Where I'm located, on thc west end of
14] running them anywhere on ti,at property, correct? I 14] that, U,ere might be a few here and there. In facl, you
IS] m~, you don't have to rent them on your - IS] heard the marine officer say it earlier, the marIne
[II] A: Designated area. IBJ officer, whichever one It was. where I'm located we do
[7] Q: - designated area. You can rent them [7] not have anchorage.Il's rlgbt in front of the place
IB) anywhere, right, on the property? (B] and it stays there all day long. TIley just park their
["I A: No, I have to In my designated area. [9J boat, anchor It, and they're there all day long.1ltis
(10) a: According to Shephard's? 110) goes from all the way to where that jeUy ends, where my
[1 II A: Well, no, ( couldn't run them in the parking [11) business starts, it goes all the way down. It goes in
[121 lot. What would they do with them? I have to rent them 1121 fronl of Ileana Lodge. Quullty Inn and ever}1hing else,
[13) in the water where ('ll be located. [131 I mean, it's not just Shephard's.
[141 a: Which Is right adjacent to this, I've got a [14) Q: So there is a jetty that actually separates
[151 photograph that I actually didn't put in:nds is an [151 where all those pictures are showing-
[t61 area in front of Shephard s - [tBI A: (f they take them from where I'll be, right.
[171 A: It still doesn't show my location. (171 MR, SCHUETT: 'Ill:lnk you. Nothing further,
liB] a: Right. But it's preUy close, right? [IBI MR. CORSME1ER: Can ( ask him another
(Ill] A: No, sir. [19] question.
(;!O) Q: Jl's not more than 50 feet away. [20] THE COURT: Go ahead.
121] A: There's a rock jetty blocking Ulis off from [21) RECROSS.EXAMINATION
122) ull Ulc5e boats, all these jet skis. How do I know this (22) BY MR. CORSMEIER:
(23) is Shephard's :ilde or Ule other side or the Quality Inn (23] Q: 'l1le jeUY that you're discussing, docs it jet
(241 or the Ecano Lodge? 124] out into thc pass1
~ Q: nUl y~ha! there arc personal ~ A: 1t.R~ut maybe. about 20 .25 yards into the
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AQUA WAVE RENfALS INC. v.
cLEARWATER PARASAIL, INC.ET AL
FINAL III~AIUNG
August 5, 1.998
Pogo 194
Pogo 191
II] IGovernment's Exhlbil No. ~,Arnd;\vlt,
121 received,)
13] 11 II! COUUl':That concludes the evidence In the
[4} case, '
[5} MS, DOUGALL.SIDES: Yes, sir.
[61 MR, SCHUETT: 111 there an}' rebuttal?
I7l THE COURT: Doell that conclude the evidence In
[8] the case?
[DI MR. CORSMEIER: '111at's righl. Nothing further
(101 from the appellant.
[II] THE COURT: My final order Is due within 45
[12] days from tmL1Y; Is that correct?
[13] MR, CORSMEIER: Can 1 ask you a quesllon,llle
[14] notice that was sent out by the City indIcated that
[IS) those Interested parties may speak. We have a
[161 couple of people I think that were Interested In
(17) speaking, from the public. Irwe could just maybe
IIBI on the record ask them Iflhey want to make a
119] statement, that's just what the notice said, and I
120] didn't want to have a problem with that notice
[21} later on.
122] THE COURT: Well, I think there's a question
[23] In my mind whether the notice ill proper.l.et me
[24] look at the code provision.
(25) MS, DOUGALl-SIDES: In 36.065(4)(8), it says
{I} pass.
[2} Q: And then on the other side of the pass Into
13] the west of lIlere, what Is out that way?
[4] A: Nothing, just the sea walls going along from
[5} the hotc:1s,Are you talking about going west from where
[61 I'll be?
{7) Q: Yes,
IS) A: It's sea wall.
191 Q: Arc you stm In the pass, but you're beyond
[10] Shephard's.
[III A: I'm about maybe - I'm not really - when you
[12} say lite: pass, the pass Is considered inside lIlose
[13] channel markers. I'm In the pass, but I'm not in the
[14] channel. I'm In the pass maybe 50 or 75 yards away, but
U5} I've got mainly - how can I answer this question - 200
I1G) to 300 yards to get out of the channel altogether, 75
117) yards to get away from lite building side.
lIB) Q: I think we clarified how far Utis jetty goes
(191 out. Docs anything prevent somebody lIlat you renlto,
[20] if you were allowed to do it, from going around lIlat
[21] jetty and joln1ng or having someone else come around
[22J lIterc and smack one of your vessels?
[23] A: What prevents them is one of my vessels do It,
[24J they arc going to lose lIldr money and their lime on the
(25J let ski. No, it doesn't prevent anybody from getllng
Pogo 192
Pogo 195
[I) hit underneath the bridge. It doesn't prevent anybody
121 from - get one from his location to the Intercoastal
(3) hitting the bridge. I can't stop an accident.
(41 Q: You agree that aU the personal watercraft
151 congestion is toward your end, rather than Sand Key?
10] A: No, I don't.
{7) C: You don't?
(6) A: It's all over. It's In the Intercoast.ll.
19) (('s in tile water. I mean, It's everywhere.
[lD) C: So there's more personal watercraft on the
[11} Sand Key side of Clearwater Pass then there is on the
[12] Shephard's side?
[13} A: Arc you saying those that arc parked or
[14} docked?
[IS) C: All around.
(161 A: Sir, they're everywhere. How might] say
117) there's more in one area and not tile other. At one
I1BI given lime there may 30 in this area, and anolller given
1191 time there's 40 in Utis area; how do I determine that?
(20] I don't know. If you Wllnt to say, do people puU up on
1211 jet skis in front of my place or Shephard's or in front
(22) of his place, or anyUting elfie, therc's probably more
[23] tilat do In front of Shephard's, but they're not In my
(24] location.
(25) C: nut you can't pn:vcnt titose people from
Page 19B
(I) drinking and using their personal watercraft? 11J do with it? It's going to shift the traffic and
[2] A: NO,l can't prevent you from drInking and I~] the boats that arc anchored there further down the
pJ driving a car. 13] line causing some more congestion and cl1Using
[4) Q: Don't bring me into this. Let the record 14J problems with the swimmers on lIle beach,
[5] reflect, I'm making a joke. . IS] I've been a manager of the Eeono Lodge for six
(6) MR, CORSMEIER: Thank you, very much. I don't (6] years. I've been fighting the boats back there for
{7) havc anything further. (7) lIle last six years on anchoring back there. I
[S) MR, SCHUETT: No further questions, (B) cannot get any help from anybody to designate II
(9) THE COURT: No oUler evidence from the 19j swimming area. So my cliental when the}' go out
[10) applicant. [101 swimming, they have to wade through the boats, wade
Ill) MR. SCHUE1T: No other evidence. [111 through the anchors. I'Ve already had one client
1121 MS. DOUGALL-SIDES: 111e City has one other [121 sent to tlle hospital because he stepped on an
113] exhibit, which we mentioned before, that being the [131 anchor,And some of these boat operators :1ou jet
114] city clerk's office affidavit of mailing noUces [141 skis and personal craft operators arc cocky, and
lIS} for the surroundIng nelghbors,Aml atuched to [151 they will push the cliental out of the way, and
(16] that is the noUce of the Planning and Zoning Hoard [IGI tell Ulem, you know, ''We c.m anchor here:l1lis is
(17) hearing, some notes, a porllon of plat map showing (17) not your property,"11lat's correct. Mr property
[16] the circle they draw, and property appraiser's lIB] ends at the high waler tide line.
[19} printout and a list of the actual recipients of the 119] Dutl cannot provide a good service for my
(20) noUce. (20) c1lental.And if what we're doing by allowing this
(21) MR. CORSMEIER: We already got a copy of that 121} man to operate behind Shephard's, and taking a part
(221 somewhere in this st.1ck. 122] of Shephard's back yard and operating his busIness,
(231 MS. DOUGALL-SlOES: Yes, 123] all that's going to do Is shift the boats a IItUe
[241 THE COURT: ltccelved as Government's Exhibit (24] further down, and make H even harder for the
(251 Number 3. l2sLfllental of the Econo l.Q!!Jte and the Qualltv Inn to.
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AQUA WAVE RENTALS INC. v.
clEARWATER PARASAIL, INC,ET At
(II use the be:lch, which i~ my property, which I pay
[2J l.ues on. And I don't even get a chance to let my
{3J cllcnral use U on the wcckcnd5.
(4J And It affects me bccause a lot of people will
IS) walk down, come into the parking 10l, or drive to
[61 the p;trklng 10t,Iook at the crowd UUll'S back
[7J there, look at all Ule boats that arc anchored, <
{SJ come up to the front desk, cancel Utcir reservation
00 and go somewhere else, Docs thal affect me? Docs
[101 that arrect my property? Yes, It docs. And that's
[III my concern. Any time you arc going to allow to
[12] have more recrc;lUonal in the back of Shephard's
{13} it's going to affcct the two properties next door
[I~} to it.
[151 I'm basically tired oflt.And I've been
[161 fighting It for six years,And I haven't gotten
[171 any help from the City, from the Coast Guard, from
lIB) the sheriff, who patrols the water, from the marine
[I;J patrol.
(20) I can't designate a place for my clients to
[:211 swim on my beach. And I have some photographs also
[22l that I brought, if you want to look at, and they're
[231 number::d. Do you want to look at those?
('241 I'm on my property looking at Shephard's.
[25J ThIs is Sheph:1l'd's. ThIs Js the Tiki bar that they
Pogo 1117
(IJ have in tlle back. And I'm going to show you, these
(21 :1I'e all tJte boats that :1I'e parked In back.
131 nus fence was put there In 1994, because I
[41 gave the pollee department, the Clearwater Pollee
[5l DeparUnent a room on the ruth floor to do a sting
IG) operation on Shephard's.And tItey were - don't be
In laughing at mc.
16J MR. CONATSER: [ thought tJlnt was funny,
(llJ MR. JASMIN: The drug and :lIcohol agents were
lID) there.And if you wnnl10 look back at the record,
Ill) they arrcsted four peoplc for serving underage.
11:2] And that's how that fence got tJlere because thcy
113] cannot cross WitJl a beer from that side of the
114] fence, because I don't have an alcohol lIcense.
1151 That's how that fence got there. But you can sec
[16] :ill the boats in tile back, sir.And if hc's
(11) operating from this side tllcR that means hc's going
[16] to push the boats a IiltJe furthcr back.
[19] That's all [ have to say,
1:20] THE COURT: Thank you, sir,
[211 Anybody else?
[221 MR. MARTENS: David Martens, 425 Lotus Pass,
(23) Clearwater. I am speaking as a mcmber of the
['Z4] public:::. ( have been boating in Clearwater Harbor
[:25] for 51 years, I've seen a I~t of changes. I have
Pogo 198
Paga 109
(fINAl. HEARING
August 5~ 1998
PllgO 200
II) thl~ afternoon:l1ml's aliI have to say.
(2] THE COURT: 11mt concludes the evidence In the
/3J ca!le. I bcJJeve the /lnal order Is due within 15
[4] days from today.
(5) MS. DOUGALL.SIDES: That's correct.
(6] THE COURT: My !iuggestlon Is that the parties
I7l be required to file any proposed final order they
/81 want filed wllhln 15 d.1YS of today,
[11] IOff.the-record dlscussion,1
(lO] TilE COtntT:l11C parties will have 15 days from
(II] loday's datc to me any proposed final orders,
{12J And my final order will be filed within 45 days
1131 [rom totlay.lllcre is a transcript being ordered by
114] the City, that will not affect those time frames.
liS] MR. CORSME[ER: Docs the 15th day end on a
(16] weekend.
(17) THE COURT: If it docs, It goes to the next
!lB) workday.
(19) And unless the parties wish to make an
{20] addition to the written summations, an oral closing
['Z1] summation, that would conclude the proceedings for
(2:2] today.
/231 MR. CORSMEJEA: J'm not In favor of dojng an
(24) oral and a wrlnen. So if we're going to do a
{25] wrlttc=n, I don't have any I?roblem not giVing an
(I] oral closing.
[2l MR. SCHUETT: You caught me little bH off
13) guard. I wa!i prepared to do an oral. I gucss, we
[4] can obviously do a written. I don't know.
IS] THE COURT: You're c=ntltJc=d to make an oml
(6] summation, if you wish to.
m MR. CORSMEIER: WclJ,lfyou dO,1 might,
tal THE COURT: AJtJlough, I think I'Ve probably
lD) heard your argument already in your opc=ning
lID) statc=ment.
(II] MR. CORSMEIER: Oh, yes, the same Witll our
[121 side.
[131 MR. SCHUETT: Well, on that note, you know,
[141 mom didn't raise too dumb of an individual. I'll
lIS) put it down In writing.
1161 MR. CORSME[ER: Can I ask a question relatcd
[11/ to the prior order that we've submItted that you
[161 Were going to consider. Should we address that in
[191 the proposed order?
[:20l THE COURT: Yes, you can address those things,
[211 MR. CORSMEIER: In the proposed order?
{22j THE COURT: Correct.1'itcre's an issue as to
[:231 its relevance which you can address also.
[24} MR. CORSMEIER: Right.
I~ THE COURT: One other item. You nc=ed to make
II] copies o[lhat tape and provide It.
12l MR. SCHUETT: I'll send a copy oVer there.
13] THE COURT: That wm conclude tod:lY'S
(4) proceedings.
IS} IHearing concluded.]
(5)
11]
[B]
[9]
110]
[III
112]
(13)
114)
lIS)
[lBI
[11)
[161
[19l
[20]
1:21)
1:221
[231
[241
/25)
[11 seen the pass increase tremendously.The pass is
[2] not only an asset to Clearwater in aHowlng boats
[3) access to a safe h...rbor, and home ownc=rs :IIong tile
(4/ bay, and Clearwater, and south and north access to
151 the gulf, which is a major liability from the
{al standpoint of the tremc=ndously strong currents that
f7I exist, particularly tike a full moon, whIch comes
[81 up in tJuee days, the current running anywhere from
laJ four to six knots. I've also seen the boat traffic
1101 because of the popul:ltlon increase, just get
{l1! unbelievable, particularly on weekends.
11:21 TIlcreforc, my feeling from Ule standpoint of
(131 personal watercraft, which I consider to be a
1.4/ person operntJng a high speed w;Uer.borne
(IS] motorcyclc without brakes, to be l'ust another
116] accident waiting to happen in a h ghly congested
(11/ location.
IIBI And,therefore, I am against having thc
/Ill) conditional use permit jssued or approved.
1201 Also, I will speak now as a member of the
1:211 Marine^dvisory Board. I am UIC Chairman. Dill
[22l Held referred to this carlier, We voted unanimous
[231 in our feclings that no further personal watercraft
(24/ licenses should be issued in the Clcanvater Pass
~5l area.And thal has been covered In detail earlier
D &: D REPORTING SERVICE (813) 468-2002 Min-U-Script1D
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AQUA WAVE RENTALS INC. v.
CLEARWATER PARASAIL, INC.ET AL
Page 203
CERTIFICATE OF COURT REPORTER
II)
(2)
\31
[41 STATE OF FLORIDA
[51 COUNTY OF PINEUAS ,
(6J
(7J .
(8) I, CEIGE AMES, COURT REPORTER lor tho Stdh
Judicial Circuit ollhe Slate 01 Florida.
(9)
00 HEREBY CERTIFY that 1 was authorized ID, .
(10] and did report the proceedings and evldonce In this
horelnbefore.lIlyled COUB9, as lllated In lho cap110n
, (II) allaChod, and that the preceding tmnscr~1 allachod
. hereto Is a lrue, accum1e and correct computerized
(12) ,tmnsc~tlon of my report 01 the procoedings had at
laid session. '
(13)
, I FURTHER CERTIFY lhat I am not employed by or
(14) related to the partlos to this maner nor Interested In
the outcome ot this action. '
(t5],
, IN WITNESS WHEREOF, I have hereunto set my
, (15] hand and seal In ClolllWlltor, Plnenas County. Florida,
, this 13th day ot August, 1998. '
1171 ' ,
\' (18) ,
119)
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Celge Amos, Court Reporter
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(21) "
(22J
1231
(241
1251
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D '& D REPoItnNG SERVJ;CE (813) 468-2002 Min-U-Script<<!
FINAI~ HEARING
August 5, 1998,
"
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(37) Page 203 . Page 203
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AQUA WAVE RENTALS INC. v.
CLEARWATER PARASAIL, INC.ET AL
$
$100,000179:6
$3151:17
$300tOOO 178:25; 179:5,
6
$5135:14: 151:19,20,22;
179:2
1
1 45:23; 46:6, 7: 58:24;
59: 10, 12, 13
10104:1; 124:7; 167:20
100170:20,2'1; 171:2;
174:10
120112:7
120087:7
125110'1:12,16
13th 42:9, 16;45:18
14108:24,25
15124:7; 166:18:200:8,
10
15-mlnute 136:6
150 110:5
15679:10
15th 130:14; 200:15
1641:6; 62:16; 98:24;
99:24; 106:2; 135:5
1783:15
18 135:7
18th ,J7:20
1911:11; 37:24; 38:3,15,
24: 112:25; 138:2
1966 114:20
1969] 14:20
1974115:?
197548:9; 115:14
1978 115:20
1980109:2; 149:13;
150:1
1982115:21; 116:8
1986 39:25
198916:22;'(8:1;49:7;
74:11
198023:13
199016:23; 19:21; 20:2,
6,13; 21:14; 48:1; 49:12;
74:10,12,20,21; 180:1
1994116:16; 198:3
199723:4,17: 103: 11;
104:6; 130:17; ]31:2;
134:9
199811:11; 37:24; 38:3,
15,24;47:20;60:15,17;
138:2
19th 138:14
2
244:15; 50:5;67:]8;
127:3; 147:21; 148:7;
152:3
2,001109:15
2.068 ]27:12
2,196127:1'1
2.19925:18; 127:14
2033:3; 77:20; 167:20;
190:25
20026:23; 131:15; 153:7,
9; 168:2; 170:16; 174:8;
191:15
2001 109: 13
22 109:16
2475: J3
25190;25
27 40:7
2827:19.19; 128:2
2nd 46:2[;.17:1,12:
138:7; 140:13
3
350:6; 193:25; 191:1
30109:2: 192:18
30013]:7; 191:16
31.6 101:22
33.001 127: 15
33.002127:16
33.051127:17
33.121127:17
34 103:23; 104:24
35.0413:12,22; 126:20, '
22; 127:19
35.05 127:21
35.11127:21
35070:15,19; 110:6;
]72:18, ]9
357 105:20
36 17:25
36.033127:22
36.036 J 27:23
36.0656:17; 14:15;
127:24
36.065(2 1-1:1
36.065(4)(8194:25
36.065(614:]8
36.081 127:24
36.082127:24
36.1104:18
367105:18
37103:25; 104:2, 13
38 105:3, 18
3rd 131:2
4
4 12: IS, 15; 23:25;
108:20; 145:18,19,20;
157: 11
4-to-337:9
40121:10,11; 192:19
40.401 27:20; 128:1
40.406 128: 1
400131:8
41 105:21
41.021 128:3
41,033 12:7; ] 9:3, !O;
18:13: 126:21; 128:7
41.052 29:25; 128:7
41.053128:4
41.053(21 128:8
425 198:22
44 61 :8
44,000 018:20
440132:18
45194:11; 200:3,12
451 104:18; 105:10, 18,
19
46,00048:20
4:00 140:16
5
5042:2;64:19;69:20,25:
105:14; 1-16:20; 180:3;
187:20; 191:1-1
5008:2: 26:24; 70:1;
17,i:6,6
51 198:25
5:00140;17
6
6 12: 15, 18; 52:3; 69:2:',
24; 70:15: 103:9: 104:5
6039:19:42:2;64:19;
87:7,7; 105:1-1
GO-page 105:5
61911:14
65 87:7
7
7 75: 13
7-page 140:6
70,606 103:24
7479:10
7569:20; 70:1: 153:18;
'180:3; 191: l'i, 16
754 105:2
7551278 103: 12
8
aD 79; 10; 112:7
80's l-i9:18
01 39:23,24; 112:24
86 39:24
89 21: 11; 12:22; 53:2-i
D & D REPORTING SERVICE (813) 468-2002Min.U.Sc..ipt<Hl
9
918:2; 166:17
9-foo' 112:8
9.3 10'i:3, 20
9042:25; 53:24; 54:6,12,
19
92 104:7
9542:4
9779:8,8; 103:12: 104:7,
10; 105:10; 130:2: 148:24
9843:1
98-2685 ;: 12
99.5 152:24
9:0026:7: 51 :4, 7
A
a.m 26:7; 51 :4, 7
ability 47:17; 80:21
able 20:13, 16,17:.16:15;
55:19; 110:9; 118:8;
150:24; 159:22; 168:6:
175:2,5; 177:8: 181:15
above 111:10
absence 114:15
absolutely 89;13; 101:6;
108:14; 110;20; 133:10
absorbed 112:3
academic 119;21
access 26:10; 112:1:
199;3,4
accident 80: 1,4,9: 86:1;
91:23;92:8,10; 101:20;
107:18; 192:3; 199:16
accidents 17:25; 18:5,8;
31:6; 52:16;79:J8,25;
85:12; 87:18,22,23: 92:3;
99:12; 100:18; 101:18,23,
24,25; 101:6, 10,12,14,
16, 22; 105:9, 12, 20, 23:
110:11; 112:20
accord 195:2
accordance 58:6
according 105:11;
187: 10
account 17:25; 18:1;
100: 18
accurate 140:23
across 55; 1; 88:5;
145:11: 154:2; 176:3
act 26:11;31:11; 52:8
action 25:16
activities 24:11, 16;
61:11
activity 25:7,8; 32:9;
0:18:23; 72;20; 76:'i; 77:5, 7,
7,8,23;78:25: 81:19;
118:23; 125:8
actual 38:14, 22; 92:9;
j 161:12; 162:11,14;
173:17; 177:22; 189:17;
193:19
IIINAL III!ARlNG
August 5, 1998
actually 6:5; 10:1:6; 17:11:
18:3; 21 :7: 26:2'): 31 :7;
38:11;42:J3;44:14;
51:19: 51:17; 57:1: 59:20:
62:21; 63:9; 69:2,3,4:
7(}: 19; 73:6; 78: 19; 83: 12:
89:22; 90:5; 94:2,13:
96: 12; 98;20; 105: 18:
118:6; 122:3,11; 130:5;
148:16; 157:20; 158:17;
160:1,10; 161:23; 163:15;
175:8; 177:18; 178:14,16;
180:12; 187:15; 188:10:
190:1,1
add 96:'8, 10; 123: 15;
183:14,18
addition 35:15; 87:9;
95:14; 96:7; 106: 18;
120:8; 200:20
additional 7:23; J 3:8;
52:19;75: 15;77:21;
87:19: 102:25; 146:15;
163: 18
address 6:20,21; 16:22;
24:18; 29:20; 32:11;
51:17; 52:9, 23; 53:7, 20:
201:18,20,23
addressed 36:6
addresses 25:17
addressing 51:5
adJacent 12:22; 19: 14;
187: 14
adjustment 115:18;
116:2
Administrative 5:11,14,
15;67:23; 101:15; 111:9:
131:4
adopted 23:6: ')7:23;
62:10; 116:6
advance 35:23
adverse 7:5,9; 1<1:3; 27:6
advise -16:22
advised 9:21: 19:3;
122:17; 123:13
advising 25:21
Advisory 17:21; 18:15,
17; 22:2; 23:12,18; 2-1:21;
25:3,11,18,19;35:16;
36:8; 12:6. 8,10,16.18,
24; .i3:1, 3,6, 8,15,17,20,
21,24;44:12;45:9,17;
48:6: 19:1; 59:17; 60: II,
13, 23; 61 : 2: 65:20, 23:
66:15,17; 70:13,16.17,
21;76:6; 127:14; 137:3,4,
5,23; 199:21
affect 14:3; 25:8; 59:3;
84:25;87:11; WI:;;
106;20: 116:18: 197:9. 10,
13; 200:14
affected 54:20
affects 197:4
affidavit 7:25; 193:11:
194:1
affiliated 170:3
affirm 39:4; 82:22; 98: J;
113:21; 129:2; 169;13
(1) $100,000 - affirm
AQUA WAVE RENTALS INC. v. I:INAL IIEAlUNG
CLEARWATER PARASAILt INC.El' AL August 5t 1998
afternoon 200:1 amendments 62:3 applicant's 23:2; 38: 1, l,j2:';,6; 113:6,7; 1,11:19, aUorney 19:5; 33:6;
Again 10;18; 22;)5; American 111;23 12; 16,j:13 21; 116:16; )17:11,22; 41:11; IH:19; 115:15, 17,
~ 26:21; 31 :21; 32:6; 18:.1; Among 115:15 application 11:11,12; 118:1,5,21; 154:2; 20; 116:9; 123:2, l,j; 183:"
55:1,12; 56:10;70:15: amount 18:4; 55:8; 79:9; 12:6,12; 18:19; 19:21; 155: 18; 156:22; 157:8,8, attorneys 5:18
78:6; 8): 1; 101:4; 10":5; 82:11,12; 107:23; 135:13 21:23; 23:2.1; 25:2; 28:3; 13, 18; 158: II, 18, 22; audIotape 119: 17
122:1<f; 160:24; 161:11; analyzing 118:2 33:21; 31: 16; 35:15: 159:10,13,14; 160:22,25; August 115:21; 140:13
164:24; 165:2; 167:15; 38: 12; 10:25; .H:17; 42:6, 161:Il,17, 19,23,25;
171:10 anchor 76:25; 91 :3: 10; 13:4; 4-1:1, 6; 47: 18, 162:3,6,7,9; Hi-l:9: authorIty 2S:13; 117:2:
against 31:17;79:18, 18; 137: 16; 172:7. K; 190:2,9; 21,21,25; 19:7, 11; 50: 16, 165:5,11,11,16,18,21; 127: 15
96:16; 139:9; 195:15; 196:13,16 22; 52:20; 59: 17; 66:8; 170:3, 17; 176:3; 178: 1,6, automatic 125:10
199:18 nnchorago ] 90:7 73:12,2]; 7-':11, 20; 7,11, ]2,17; 181:11; available 15:23; 26: 11;
age 108:25; 109:16; anchored 85:2; 155:17; 80:23: 121:21; 136:16, 18; 182:1.181:9; 185:15,20; 52:15; 107:7; 127:7
110:10,24,25; 135:4,5; 196:2; 197:7 175:5; 186:22 186:10,12,13,19; 187:6, avoid 108:19
175:10 anchoring 91: 15; applications 16:20,20; 7,9,16; 192:17,18,19; aware 11:15;44:1;57:17;
agencies 17:23 178:19; 196:7 25:13;.18:1,3; 53:24; 196:9; 199:25 60:8; 80:19; 81:3; 138:24;
, anchors 156:11; 196:11 58:10 areas 30:22;40:10,17; 146:22; 179:25
agency 101:19 answered 95:16; 165:24 applied 136:13; 182:22 86:7,8; 100:10; 112:1; away 132:3,4,5,6;
agenda 59:18, 19,21,23; answering 71:24 apply 30:2;76:19; 130:18 118:20; 112:15 162:8, 11; 167: 16,18;
60:11 argue 24:21;81:12:
agenda-ed 24:21 anticipate ]6:14; 21:16 applying 74;21,21,21; 175:1; 178:9,21; 187:20;
anybOdy 36: 2]; 66:1; 75:2 120:5; 161:1 191:11,17
agents 198:9 appointed 43:8 argued 165:9 awtu179:6
ago 5,(:9; 58:3;85:14; 82:8;90:17;94:19: 107:7;
106:8; 124:7; 172:22; 123:]8; 176:13; 177:6; appraiser's 193:18 argues 28:10
181:9 181:23; 191:25; 192:1; appropriate 12:3 arguing 123:9 B
agree 29:3; 65:8; 75:22; 195:8; ]96:8; 198:21 approval 11:8; 12:5; argument 30:16,23;
122:16; 172:18; 185:14, anymore 58:13; 111:21; 18:23; 22:16; 24:1; 26:5; 201:9 bachelors 114:19
17,25; 186:10,18; 187:25; 125:25; 165:16, 17; 10:25; 42:7,19,20; -13:25; arguments 33:7 back 9:2; 23:5; 30:7;
192:-1 180:20 48: 15; 19:8; 50: 15; 55:20; around 48:8;64:13, 14;
agreed 9:23: 181:4 anyone 109:2, 13; 72:25; 81 :7; 128:6 72:5; 87: 10; 88:25; 89: 1 8; 33:20;38:6,19,21;72:21;
agreeing 127:9 134:11; 146:22; 167:5, 5 approvals 17: 16 90:24; 95:7; 106:6, 1-1, 20; 86:6; 90:9, 13; 95:7; 97:6,
Anyway 172:-1; 180:10 approve 26:2 108:15; 118:14; 123:17; 7; 133:20,23; 141:25;
agreement 61 :20 anywhere 31:18; 63: 10; approved 11 :2, 10; 130: 14; 139: 19; 142:5; 112:21; 111:9,24; 115: 11;
""""j agreements 62:21 172:14; 186:2,3; 187:4,8; 12:11; 16:16;30:10;42:7; 149: 13; 150:8; 155: 16; 150:9; 151:2; 154:1;
agrees 125:17 188: 16; 199:8 52:20; 57:18, 21, 22, 24, 157:7,9; 172:9; 176:2; 155:16; 168:19; 169:1;
"'~"1~1'" aground 131:24 apparently 23:3,5 25; 58:5, G, 11; 61 :25; 177:21; 191:20,21; 175:.1,5; 181:16,16;
ahead 8:20; 38:7; 44:25; 62:22; 199:19 192:15; 195:23 195:-i; 196:6,7,22; 197:6,
appeal 6: 15,18; 7:3, 20; 12; 198:1,2,10,16,18
57:5;77:18; 141:11; 11:1,6; 12:10,15; 14:17; approving 50:22 arrange 9: 11 backed 180:21
143:2; 190:20 116:7; 145:22; 146:1, 2; approximate 130:13; arrested 198:11 background 13:10; 61 :7,
air 188:20 150:15 131:8; 153:19; 168:2 artery 18:18
Akron 115:2 appealed 22:24; 27:10 approximately 69:20, article 195:2 8; 114: 10,18; 170:19
Alan 5:20; 125: 19 Appeals 127:24 24;98:24; 105:13; 130:14; asIde 62:17 bad 34: 19; 152: 19;
140:16; 153:12, 13, 18; 179:10, 18
alcohol 156:5; 175:13, appear 46:10 166:17 aspect 16:17; 26:20 ban 62:7, 10; 109:24
14; 198:9, 14 appearance 5:19 April 79:8 aspects 30: 15 band 166:24
alleviate 53:3 appeared 118:7,16; Aqua 5:6, 22; 10:20,24; asset 199:2 bands 24:13
allow 11:3,8;41:1;97:14; 121:8 23:20; 57;11, 17; 129:16; assIgned 5:15;67:11,12, bar 84:14; 96:25; 97:11;
110:6; 152:17; 176:12,13; appearing 121:9 131 :1 15;83:18 114:13; 124:8; 137: 15, 15,
197:11 appears 19:4 area6:15;7:1l; 11:17, assistance 26: 12 20; 139:21,22; 142:1,3,5,
allowed 10:9; 28:4; Appellant 5:6;9:15; 10:2, 21; 12:20; 13:9; 14:8; Assistant 16:2; 19:4; 6,21; 151:12; 155:23,21,
174:18,19; 176:12; 178:2; 21; 23:2; 25:1; 26:19,22; 15: 19; 16: 18,22; 17:1,(, 35:22; 39:24; 40:1,9; 25; 162:2<1, 25; 163: 1;
191:20 27:10,14; 28:9; 29:1; 17; 18:22; 22:5; 25:8; 46:19; 115:11, 15,22; 164:4; 166:13, 17,21,25;
allowing 13:8; 196:20; 34:11;60:7; 169:4; 194:10 26:10,15,17,23,24; 118:9; 123:1, 13 167:2,6; 170:11,16;
199:2 appellant's 27:4; 28: 10; 28:10; 29: 11; 3,1:20; associated 28: 1; 52: 13 176:8,8; 197:25
almost 172:3 34 :8; 46: 5, 7; 68:] 2; 70:3; 36:19;40:12; 51:24; Association 114:13 Barnes 10:23
alone 48:5 102:20; 103:2; 115:20 52:24; 53:6, 14,14, Hi, 24; assume 10:14; 30:20; barrier 151:3
along 29:17;42:11; appallate 125:16 54:21: 55:7, 10, 16,25; 31:9,11;97:2; 161:15 bars 24:1<1;91:6,16;
118:12; 151:1; 157:5; appellee 6:9 56:4,8,13; 58:11; 67:21; assuming 7:19; 30:19; 137:19
165:20; 191:4; 199:3 appellees 5:8; 6:5 69:10,12,13,15;72:7; 77:16 base 18;5, ] 3
78:1;81:16,16,17;81:1,
already 8:16; 19:20; 23:7; applicable 12:",9; 11:1; 6,8,11;85:1,6,10,16; assumption 31:13;68:1 bosed 15:7; 21: 18; 28: 13;
14:20,22; 45: 14; 78:2; 48:3 86:13,15,17;87:10,10, attached 24:20; 35:15, 44: 10; 66:20; 70:20;
86:24;95:16,23: 114:6;
133:1; 165:17, 17; 183:11, applicant 6:10; 12:25; 12,16; 88:18, 25; 89:1, 2, 17; 102:22; 193:15 81:22; 119:23; 130:18;
15:14; 16:6; 19:4;21:17; 19; 92: 19; 93:22; 94: 13; attaches 38:]2 168: 12
U 24; 193:21; 195:24;
196:11; 201:9 23:22; 2.(:24, 25; 26: 13; 101 :2; 106:6,11,14,15, attachment 8: 1 basic 121:2: 174:16
28:21; 32: 18; 33:12; 20,20,23,23;107:24; Basically 22:9; 50:18;
Although 201:8 41:17;42:11;43:6,16; 118:14; 120:25; 121:1,5; attack 21:17 55:1;68:24; 118:22;
altogether 191: 16 50:22; 52:1;66:10,14; 124:12; 125:6,22; 131:13, attend 46:17; 137:7 120:21; 134:21; 152:1,8;
always 28:21; 33:6, 6; 81:22; 92:20; 119:19; 21; J 33:1,2,7; 137:14; attention 128:5; 188:23 155:7; 162: 18; 170: II, 23;
89:23; 135:19 I 121 :24; 193: 10 139:18; 140:21; 141:19; attitude 121:2 173:15,19; 171:3; 197:15
D & D REPORTING SERVICE (813) 468-2002Min.U.Script>> (2) afternoon - Basically
. ; . " .' \' ~ ' : I: ,I ' .: I" . I '.', :. . <:
AQUA WAVE RENTALS INC, v. FINAl. IIllAIUNG
CLEARWATER PARASAIL, INC,ET AL August 5~ 1998
basis 21: 1; 25:6j -17:23; 18,25;22:2,6,11,19,23, 22, 23; 97:6; 100: 17, 19; built 17:9 can 10:3: 17: 11; 20: 16;
'18:16 2'(; 23:8, 12,22; 24:5,9, 101:2,5,9; 103:14; 10,1:3, buoy 53:9,10; 156:10; 30: 20, 25; 31: 17; 32: 17;
bay 199:4 19,21,21; 25:3,6,11,18, 4; 106:13, 15; 107:23,25; 195:19,25 33:5,9; 37: 17; 39: 16; ,II :9,
f,"" Beach 11:16,18; 23:1; 19,23,2-1; 26:1, 3, 5,21; 113:8; 131:23; 132:1; buoys 26:14; 53:5;9'1:13; 2-1; 47:23; 51 :2,2<1; 53: 11;
J 24:15;26:10,1>1,16; 27:3,15,16: 28:16;30:7, 137:16; 1-13:17,19; 156:11,17; 178:17 54:25; 57:3; 58:24; 62: 13;
39:20; "0:16; -11:2; 55:25; 1";31:1,8;32:1,7,15,25; 144:15,17; 149:1-1, 19,20, burden 12:20; 1-1:25; 63:ll,I1;64:19,22j
33:1,9,22; 34:14; 35:3, 21; 155:16; 156:7, 15,19; 66:17,19;71:2-1; 73:lO;
56:2,3. 12; 62:23; 68;22, 16;3G:4,8,11;37:9,22j 165:16; 166:1; 170:21,21: 27:1-1;33:17,19,24,25; 71: 11; 76:25; 77: 1; 80:25;
23; 69:3,9,14; 85:8; 86:8; 42:6,8,11, 16, 18,2-1; 171 :3,24,25; 172:6,9, 10; 34:16; 37:12 81:1,12,12;86:12;87:<1;
93:18;95:6; 120:21; 43:1,3,6,7.8,13,15,17, 176:1,17; 177:8,9; Bureau 98:20 90:5,6,21; 95:20; 99: 12,
135:18; 139:17; 142:5,9.
10; 143:25; 144:19; 20,22,24;44:4,12,16; 178:19,20; 179:14; busiest 137:11 13; 101: 15; 105:22; 110:3;
45:1, 4,9, 17;,(6:J J,].f, 181:] 6,24; 18-1:8; 187:22; business 22:25; 23:3. ,j, 111:10.11; 114:17; 120:2;
145:10; 148:4,5,21; 17: 47:8, 10, 16; 48:6, 7; 188:6; 190:2; 196:2,6,10, 16;28:10;29:10;31:3,17; 122:3; 123:10,24; 125:11;
151 :],5; 160:21; 177:10, 49:1,9,15; 50:8,14,21, 23; 197:7; 198:2, 16,18; 33:18j 34:5, 6, 8, 22; 126:23.24; 127:4; 131:25;
20; 195:13; 196:-1; 197:1, 24; 59:10, 17,21,2"; 60:5, 199:2 36:18; 57:12; 58:5;61:4; 132:1; 134:20,20; 136:3;
21 11,13,23;61:2;65:20; book 101:17; 102:3;
beaches 56:9 68:12; 69:4, 21; 71: 10,13; 137:15,16,20; 1"1:20;
66:G. 10,] 1, IS, 17,18; 105:22; 112:23 72:11,22: 75:6; 89:25; 146: 19; 151 :2; 156:2,5;
~ear 128:16 67:7;70:]3,16,17,2-1; booklet 101:12; 173:23 90:4,8,12;92:21;94:7, 158:11: 161:21; 166:19,
became 23:16 73:8; 74:]6; 76:7; 80:20, born 109:2 13:96:16,17; 129:16,19, 24; 167: 12; 168: 11;
become 84:20; 115:20; 23;81:6,8,9; 115:18, 18, borrow 113:1 22; 130:20,22.25; 131:5; 170:15; 171:2,4; 176:21,
133:4; 186:4 25; 116:2, 13, 19,22; borrowed 88:11,13,17, 132:8,13,16; 134:5,6,8; 22: 177:6; 178:18; 182:8,
119:2; ]21:13; 122:7,17,
becomes 84:16; 125:23 22; 123:18; 12,1:17; 19 139:17,18; L41:4, 1",15; 15; 187:7; 190:18; 191:15j
becoming 17:4;40:1 125:15; ]27:14,22; 137:4, borrows 107:8 146:5; 147:23; 148:2,25; 194:13: 196:16; 198:15;
beer 13-1:18; 158:11; 5,23; 138:1; 139:] 2; both 13:5; 15:12; 16:23; 149; 10; 150:5; 153:5, 15; 201:4,16,20,23
167:10; 19R:13 145:23; 148:10,14,15; 17:20; 19:3; 28: J 5; 48:3; 154;20; 155:8,9; 156:] 4; Conatser's 59:]6
beginning 115:23; 116:1; 149:1,7; 173:11: 18-1:3; 50:11; 85:2-1; 92:12; 157:1.f, 18,21; 158:], ]8, cancel 197:8
193:16; 199:21 96:22; 116:5; 127:16; 23; 159:7, 11, 15,21; capacity 100:4
172:17 160:8,10; ]61:1, 13, 18,
behalf 5:22, 24: 6:2; Board's 15:7; 25:5,16; 1-1-1:5,6; 157:25 20; 162: 13, ] 5; 164:4,8, captain 57:3,7; 170:1;
22:22; 118:7: 119:19 28:13,17: 59:11,13; bother 188:8 10, 13, 17; 165:4; 167:21, 174:14; J85:<:I, 5. 9
behind 143:3,4; 155:20; 117:1; ]25:18; 148:7 bottom 34:23; 67: 10, 12; 24; 168: 1,25; 169:2.25; captains 42:12; 57:2;
162:20; 195:16; 196:21 boards 40:21; 116:11 125:13; 142:8, 19,20; 170:13; 171:11, 12; 175:7, 86:5
believe 12:2.f; 19:22; boat 11:5,7; 17:11; 1-13:22,22; 144: 12; 17; 176:14; 179:17; car 65:10; 107:21;
,~.~I<"", 20:12; 23:11; 29:14: 30:6, 26:10,11,18,20;42:12; 157:17; 158:21; 168:10, 190:11; ]96:22 184:11; 193:3
., 43:23; 52: 15; 53: la, 20; 16
) 19; 36:3; 38:13;45:11,22; businesses 28:8;68:18, card 175:3
46:21. 24; 60:8; 61:10; 54:20; 57:1.7j62:15, 16; Boulevard 11:14 ]9,22; 90:10; 113:-1; carried 119:20
67:12,21,23; 68:17; 65:10;72:25;74:2;77:11; brakes41:21;64:15,17; 147:15 carries 112:23, 25
70:25; 71:7; 72:23; 74:21; 78:12.17;86:5;89:10; 86:25: ]99:15 busy 77:4;94:10,12;
103:3,5; 105:4, 18; 117:1; 92:9.9.25; 93:1,2;95:15; braking 4]:22 152:22; 188:19 carry 120:9; 170:20;
123:18; 167:15; ]72:19; 97:16; 100:9,21; 106:22, brand 125:20 buy 107:5,7; 110:21; 178:23,24
177:5; 179:6, 6; 200:3 23; 107:22; ]09:16; 112:8; Case 5: 12; 6: 10; 8: 12;
believed 123:18 120:9; 123:20; 12-1:6.8; break79:2]j 182:8,15 156:2,5 14:22,24; 21 :5,11 j 22:2-1;
135:12j ]36:8: 137:18,21; bridge 11:16,19,19; buying 130:24 2-1:23; 28:21,22,25; 43:7,
Bellealr 186:7 150:12; 155:]8; 156:23; 17:8.10,11,13;34:8,9; buys 110:16 17;99:10;] 19:8; ]94:-1,8;
below 150:25; ]59:11; 157:22; 160:10,17; 51:7.8, 10,20,23; 56:5; 195:16; 200:3
160:4 165:22; 170:]j 174:]-1; 67:2,j, 25; 68:1,5,23; C cases 7:17: 21:6; 57:8;
best 71 :3; 110:4; 122:5, ]75: 18; ] 77:6,7.8,22; 90:1; 131:10, 1-1, 16; 78:11
14; 132:22,23; 152: I 178:15: 182:16; 183:7; 132:10,11; J42:1 J,13; Catamarans 75:3
better 80;7; 93:11; 109:1, 184:20,20,22; 185:3,4,8; 152:4,5; 153:10. 11; C 39:8,13 category 124:25; 125:8
3; 111:19; 170:19 186:9; 188:18,21 i 189:3; 180:7,7,10, 19; 181 :3,4, C'338:18
beyond 52:5; 86:18; 190:9; 196:13j 199:9 4,5,6,10,13; 186:5,7; C.O.N-A-T-S-E-R 169:23 caught 172:10; 201:2
143:10; 191:9 boater 52:13 ]92:1,3 California 172:14 cause 121:21; ]23:19
bicker 177:5 boater's 109:17; 175:2 Brlef80:16j 128:19 call6:3i 10:7, 12; 37:17; caused 52:19
big 41:12; 72:16; 93:1, 2; boaters 48:18; 54:14, IS, briefly 141:3 39:1; 68:8,23; 69:3; 80:21;' Causeway 186:8
94:15; 107:23, 25; 140:20; 23,2-1;55;2,8,10,14; bring 32:25; 42:3, 15, 17; 82:18,19;99:4; 113:18j causing 196:3,3
156:19; 166:23; 175:21; 63:4,5,7; 75:16; 78:23; 60:22: 77:25; 133:22; 1 J 6;8; 148;9; 169:9; CC's 87:7
176:16; 180:8 85:9;88:6; 188:17 137: 18j 1-11; 18; 154:22; 173:22 Center 39:20j 115:5
bigger 100:17,18,23; boating 24:14; 25:7; 193:4 called 5:10; 9:25; 11:-1, central 47:<:1
171:24; 173:3; 181:16 43:10; 18:23; 51:8; 55:6; bringing 29:21; ]73:13 20; 19:22; 28:2; 118:20 certain 82:12; 118:24;
bIggest 36:20; 173:5 56:6;61:11,1-1;63:13.17; brings 147:15 calling 176:24 121:18; 127:9; 171:1j
72:20; 77:8, 23j 78:9, 25; broad 123:10
Bill 24:20;41:1-1: 130:4; 92:8;99:12; 100:13j calls 118:22 172:7; 173:16; 174:17;
138:17; 199:21 101:20,22,24; 105:12; broke 86:2 Calvin 139:4; 117:4 175:10
bit 18:16;66:7; 114:10; 124:2j 135:12; 198:24 broken 101:23 came 18:25j 32:1; 46:24; certificates 135: 12
U 119:21; 150:8; 171:19; boats 17:12; 18:2,3; brother-In.law 121:8 59:17; 70:13;72:21, 22, certifIcation 78:16;
201:2 52:13; 55:12; 63:14; brought 42:9, 2-1, 25; 24; 76:7; 78:18; 83:16; 175:5
blocking 187:21 64:17,22; 65:6;74:5;76:-1; 43: 11,16; 48:6; 70:16: 107: 12; 115: 14; 117: 10; certified 13:23; 21 :7;
Board 5:24;7:18; 11:10; 84:20,21: 85:1, 3, 8; 89:9; 103:1-1; 176:15; 189:13: 120:7; 1.f9;16, 17; 160:17; 27:20; 15:20j 46: 1; 19:22,
12:11; 13:2,7; 15:1,2,-1, 91:2,9,11,12;93:12,16, 197:22 189: 24 25; 126:11, 14; 128:15
8,21; 16:8; 17:21; 18:15, 17, 25; 94: IOj 95: 12; 96:8, building 161:6; 191:17 Campbell18G:8 cetera 171:9
D & D REPORnNG SERVICE (813) 468-2002Min-U-Smpt0 (3) basis - cetera
.~t~-~
'1
\"'''~)
''!-~ ~~.,"","
t~
AQUA WAVE RENTALS INC, v.
CLEARWATER PARASAIL, INe.ET AI~
choir 111:15
Chairman 59:20; 116:15,
21; 199:21
challenge 119: 1
challenging 73: 11
chance 35:12,13:87:18;
107:2,18; 189:11; 197:2
chances 87:22
change 181:4
changed 20:24; 50:16;
53:24,54:2,6,19: 55:5
changes 60:3; 179:25;
198:25
channel 19:17; 54:11,11,
16, 17; 55:3, 17, 23; 63:4,
4,7,8,9,12; 101:7,9;
131:22; 172:17; 180:1,3,
5,5,10,12,16,22,24;
181:1; 182:10; 186:5;
191:13,14,16
channels 184:6
chapter 127:19; 128:3;
195:3
character 28:6
charter 33:4; 86:4:
116:15,17
chase 26:11; 52:8,12,15;
177:22: 184:22; 185:8
chaser 133:25; 134:1
chasing 178:20
check 45:12
Chief 40:6
chlt-chat 174:11
circle 193:18
circling 148:3
circumstances 20: 11
citations 31:16;71:12;
79:7, 10; 85:9; 99:25;
118:13; 171:17,18
clte81:12
cited 12:9,14; 17:20;
29:24; 30:5,12
cites 35:6
citizen 36:12; 115:19
citizens 66:3; 118:16;
119:10
City 5:7;7:4; 13:19,20;
14:20; 15:25; 19:4, 17;
25:20,21,22,23: 26:25;
32:11,11:35:8;36:13,13;
37:1,23; 39:15,17,21;
40:2,10, 17.21,21; 43:8,
45:21: 46:18; 49:23,25;
52:12; 55:15, 19.2-1;
60:16,18,18,21.22,25;
61:9,18,19;62:2,6,7,19,
22; 65:21;71:21; 74: 15;
79:25; 80:2,9,19; 81 :4.7:
101:21: 115:11,12;
116:12,11,16,17: 1 18:22;
123:1,3; 125:5; 127:15;
139:1; 147:4; 148:10:
](;9;8; 178:5,6; 179:5;
193:12,11; 194:1,1; 195:1,
6; 197:17,200:11
City's 19:6;57:18
claims 171:7
clarification 38:8
clarified 191:18
clarify 37:18; 38:6"H:1O;
51: 12,81: 15; 91: 14; 95: 19
clarifying 39: 1
closs 78:13; 174:16
Cloy 6: 1; 28:20; 63:2,1
clear 80:6; lOi: 17
clearly 12:12,25; lS:1'5;
22:14;90:21; 119:12;
121:2,22
Clearwater 5:7,8; 6:7;
11: 16, 20,20; 12: 1,5;
13:9; 17;4; 19: IS, 18; 25:8;
31:10;32:22;33:4,18;
34:1,9,16; 39:15,17,22;
10:10,11,16,18;41:2,11;
13:9; -18:8, 12,22; 52: 1 2,
24; 53:23; 51:5; 55:12,15,
22,25; 56:19; 58: 11;
62:15,23; 63:1; 67:22;
71:17,21; 80:1,3, 3; 84:-1,
1O;85:1,16;87:tt;92:5,
7,8,23;96:13: 106:6;
114:13; 11 G: 12,25;
118:22; 121:5; 130: 19;
131 :13; 137:15,22;
1.12:11; 147:11; 154:10;
180:2; 18,1:9; 192:11:
195:13; 198:1,23,21;
199:2.1.21
clerk 8:1; 26:25: 15:21:
19:21,25; 195:1,6
clerk's 7: 23; 8:8; 21 :8;
193:11
client 10:21; 11:6; 21:17,
24; 31:1 1; 35:18; 36:16;
119:9; 141:18; 164:16;
196:11
client's 7:8; 21 :20; 57:12
cliental 196:9, 15,20, 25;
197:3
clients 116:10; 147:12;
197:20
Cliff 6:2; 28:20; 169:23,
24; 179:10
Cliff's 161:8
Clifton 11 :13; 169:17
close 86:17; 105:1-1;
108:12,131:13; 137:19;
170:17; 181:7: 187:18
closed 17:3;18:19;
179:13,14; 188:5
closer 51:11. 18; 101:9;
174:8,10
closing 200:20: 201:1
closure 51:3
club 139:22: 112:21
Cook 115:5
Coast 16:3; 40:3,5,8;
55:17,20; 57:3, 7; 61:16;
197: 1 7
cocky 196:14
code 5:9,17;7:1,2,7,16;
12:5; 13:13,14; 14:5.7,
21,23; 17:18: 19:9;2n:8; I compliance 13:1;;\8:10
23:6, IH; 21:2; 25: 17; compiled 23:25
26:23; 27:2, H, 8, 23, complimentary 27:25
29:21; 30:3, H; 36: 15; '18:.1, comply 26: 13; 30:8;
1-1; 57:19, 23, 2'5; 58:1,2; 52'22
61:19;65:25;66:21; ,
80:19; 81:.1,7: 117:5: composite 1,10:1),6
123:3; 124: 1-1,21; 12S:"', composition 91:8
17; 126:6, 17; 127:10,20; compound 78:5
194:2.1 compounding 77:9
Code's 21:-1 comprehenslvo 1-1:20
collBteral99:3 comprises 39: 19; 41:7
collides 100:22 computer 103:6
Collision 105:25; 108: 19 Conatsor 6:2; 11: 13;
come-In 76:15 2H:20; 30: 17; 31: 10.16;
comfort 13:17 11:1;56:16,22;57:2;
coming 70:20' 86:6' 59:22; 60:6; 69:4,21;
93'12'95'5'96~22'1'13'9' 70:13,20,71:..(,9;72:11;
, , " )" " 71:22' 76:20' 94:12'
115:6; 156:21,24: 172:5; 97:16~ 136:13; 1..(3:'1;
177:8,9,9; 195:22 145:24: 153:,1, 15,25;
comment 96:21; 123:8; 155:8: 156:13: 157:14,18;
124: 10; 150: 11; 156:20 159:7, 11; 160:25; 162:12,
comments 121:17; 17,21; 165:10; 169:17,23;
123:9; 1..(9:6 179:25; 198:8
commercial 11:2; 25:7; Conatser's 21 :21; 61 :..(;
27:19; 28:2; 51: 15; 56:13; 62:18; 69:25; 73:5;
76:3,16; 125:7; 128:2; 151:20; 158:4,7; 167: 17
170:22 concede 16,1:15
Commission 11:25; conceding 161:12
25:21,22: 29: 13: 13:8; concern 13:8; 31:21;
60:25;62:3,7,22;65:21; 36:25;48:13; 51:10; 53:4;
101:22; 115:7; 116:3, 15; 72:16,18;73:3;74:3;76:9,
125:6; 138:6 11,12:89:1,7,11; 111:17;
commissioner 32:11; 112:9; 119:25: 166:5;
35:9 175:13; 195,11; 197:11
Commissioners 115:25 concerned 16:16,17:
common 86:24; 105:23, 21:21; 22:1; 29:9; 30:25;
24 84:1
commonly 81:8 concerning 10:21
community 12:17,22; concerns 16:25; 17:2:
15:16; 19:12, 15,16; 25:11; 26:4; 29: 18; 35:25;
27:12,13; 33:4; 63:17; 48:16,17; 51:6,17; 52:9,
120:22 23; 53:7,13,21; 163:19
companies 165:21; conclude 18: 10; 22: lti;
177:20 121:21; 191:7;200:21;
company 170: 1 202:3
compare 18:3; 20:18; concluded 18:2.1; 202:5
45:6 concludes 191:3; 200:2
compared 18:5;75:23 conclusion 22:10, 17;
comparison 107:21; 120:7,18,19; 121:16
110:2,ti condition 51:1,11; 52:7;
compattblllty 19:13; 53:18; 54:5; 119:25
27:12; 12-i:l6; 125:5 conditional 1 1:1.11.12;
compatible 12:19; 15:18; 12:1,6,10; 14:9; 15:16;
28:6,11:30:21: 120:15; 16:15; 17:16; 18:18,23;
121:2,4, '5,6; 124:11,11, 22:15; 25:13: 26:2;28:4;
23; 125:11 30:3,10;31:18,23; 37:3:
compotent 13:3; 22:11; 40:25; 42:18,20; ..(9:7;
28:14; 37:15; 119:7, 12; 57:21,22; 58:2, 9; 65:21;
121:22 66:8:72:24;73:9; 7-1:16:
tltl 29 2 87 5 80:23: 81 :6; 118:19,21,
compo on :; :; 23;119:13;124:11,22;
171:2 125:2,22; 128:3; 129:23;
complaint 173:3,6 130:18; 136:13; 137:11;
complaints 61 :3; 86:4; 138:15,22.25; 139:11;
96:15; 131:1; 171:11 143:1; 115:23; 146:23;
completelv 20:10;89:25 182:22; 181:4,13; 199:19
D & D REPORTING SERVICE (813) 46S.2002Min-U-Script0
IIINAI.IIHAIUNG
August 5t 1998
I conditions 26:3,6; 1K:2;
50:21; 0;1:2,3; '53:23; 'H:l,
2,18; 55:5, 6; 7~:.1, 7,9;
118:25; 119:2; 122:20,21;
125:1,1,9.12
condominium 2,1:7
condominiums 22:,1;
56:20; 132: 17
condos 68: 15; 121: 1, 12
congested 16:18; 17:15;
81:16,20; 101:2; 108:9;
133:2,3,1,7; 182:4;
185:25; 186:4,6,12,11.
19; 188:9,11, 11; 199:16
congestion 52:18;
86:16; 106:10,24: 192:5;
196:3
Conn 19:21; 20:22
consider 21:22; 30: 15;
ti8:7; 59:24; 70:14; 71: 18,
20; 102:18, 119:15,16;
120:7,14; 121:13; 122:18,
23; 163:15; 199:13;
201:18
consideration 13:11;
33:9; 11:5, 5; 123:7, 10
considerations 116:1
considered 15:21,
20:25; 25:4; 45:5; 60: 19;
117:19: 121:17; 126:6;
138:15: 191:12
consistent 12:16; 15:16;
19:11; 27:11;42:21;..(8:1.
10
contacted 70:18; 175:3
contain 147:23
contained 12:6; 19:2,6;
30:9; 38:23; 128:6; 195:2
contention 28:25; 31 :7,
25; 32:1,6
context 120: 1 ()
Continental 24:7; 121:8;
132:18,21; 139:8; 142:1,1
continuance 38:23;
46:14
continue 21 :21; 24:22,
25
continued 6:23; 16:6,8;
46:20. 23; .17: 1,3,6. 11,
14; 55:9; 138:9,12,19
continuing 55: 10, 14
continuous 149:25
contrary 29:9
control 177:6; 195:22
controlled 112:1; 177:11
convenience 12:18;
13:17; 15:18
conversations 73: 1
cooperative 96:18
caples 9:12; 13:23;
15:25; 102:17, 118:12;
126: II, 11; 128: 15, 24;
202:1
copy 9:4,6,8; 21 :7;
27:20; 36:5; 45:20; 49:22;
102:7; 157:3,6, 12; 171:1;
(4) chair - copy
.' ',::, '.i" .... +:::~::.~/::c<.' t,;: r: :,';'>:.'{::'/',">,:. :;;!:/:/;:,;i,.., '.: .i :. · :' : :. '.:" ..' :".. ;';,.:.a' ):) }:::{,:,; ::' ,:;:.r.;,:.,:,:;,:/\
. -'~'~'. . . ,
., ~ ~ d '\ .
AQUA WAVE RENTALS INC. v. FINAL HEARING
~ August 5, 1998
CLEARWATER PARASAIL, INC.ET AL
193:21; 202:2 crazy 179:9 120:21; 176:18 dota11199:25 Donald 19:23
corner 95:7 creating 51:21 deals 25: 11 dotermlnatlon 12: 11; done 15:13;.18:10;65:3,
CORSMEIER 5:3,21; Creative 27:21 dealt 71:8 1 -I: 11 6; 77: 15, 16; 79:20;
~ 8:25; 10:22;45:25;82:19; crew 170:21 December 23:1,17:79:8 determine )0,1:13; 119:3; 101 :23; 111 :25; 126:8;
83:4; 96:3,6; 97: 19,23; criteria 12:13,14: 13:1; decide 20:18; 50:2; 131: 11; 135:2; 192:19 110:19: 172:21; 178:13
98:8,17,22; 102:6, 12, 17; 14:17; 15:12; 19:2,6,8; 135:15 detract 12:17: 15:17 door 197:13
103:3,7; 113:14; 127:2; 20;23,24; 21 :1; 21:3; decided 16:9: 19:20; Development 7:7: 13:13, Double 62:24
128:22; 129:9: 10:11 :20,23; 30:13;32:18,19; 33:13; 35:3,1; 110:1:25 1-1; 14:4,7; 17:18: 23:6; doubt 14:16
145:13,18,21; 117:17; 37:11;38:2,11,14; 123:3; decision 6:19: 11:25; 24:2; 27:7; 30:3: 0:18:<1, 11; DOUGALLwSIDES 5:23,
163:14,22; 164:14; 12-1:16; 125:16; 13-1:15; 57: 19,25; 58: 1,2; 127:20 23;7:22;8:7,14; 9:17;
165:24; 166:10,12; 168:3, 13:4; 14:20, 25; 15:4,7;
23; 169:5; 181 :19,21; 135:3 19:1,20;20;3,6,7,10,13; develops 8:2 22:22; 23:11,17,21; 29:8:
189:8; 190:18,22; 193:6, cross 63:4; 198:13 21 :2: 22:12, 18,23; 27: 15, devising 173:20 36:9; 37:20: 38:9,17; 45: 1,
21; 194:9, 13: 200:15, 23; Cross-examInation 17;28:13,17;32:8,16,17, difference 56:23; 57:6, 11;46:1;50:8;58:15,17;
201 :7,11,16,21,24 58:14,16:63:22;89:15; 20,2<1; 33:21; 36: 10; 10;78:21; 181:12; 189:23 59:9,15: 63:21; 71 :8;
Corvette 110:5 91:19; 108:2; 109:20; 37:10,14,16;48:5;49:20, differences 164:7 89:16;91:18; 102:16;
couldn't 35:22; 88:22; 122:1; 1<17:18; 151:8; 24; 50: 10; 65:9, 11, 15; different 20:4,4,10; 108:3; 109:19; 120:13;
89:12;95:7; 122:23; 181:20 117:1,10; 125:18; 173:10 26:25; 33:7; 60:4; 63:18; 121:25; 123:6; 126:13, 16,
crossed 63:7 decrease 101:3; 146:16 18,22; 127:12: 145:16:
137:18; 187:11 66:7;75:24; 112:24; 10:17:19; 148:6, 13, 17;
counsel 9:22; 23:23: crowd 10:11:8,10; 176:16; deep 85:3 150:6,19; 177:17; 185:22 151:7; 179:21,24; 181:18;
128:25; 165:8 195:23; 197:6 Defended 116:4,5 Difficult 97: 12 193:12,23; 194:5, 25:
counsel's 150: 11 crowded 154:10,10 deference 37:13 DIRECT 39:10;83:3; 200:5
County 18:21; 48:21; Crown 181:10 defines 14:1 93:20;95:14;98:7; 114:2; down 23: 1; 36:2~; 65: 14:
55:9;61:16;83:8,13; 84:2; cup 131:18 definitely 85:2; 86: 16: 120: 12; 128: 5: 129:8; 68: 14; 73:24; 90:6; 9<1: 18;
115:9,15,15,20,25; current 23:15, 19:48:21; 89:3; 91:7, 7,17; 138:16: 131:18; 133:2,6, 19; 95:13; 101:23; 110:15;
116:3,4; 129:13,15 51:3,4; 59:6; 75:17;77:12, 139:24; 146:17; 167:10 163:3; 161:3; 169:19; 136:7; 139: 17; 112:9, 10;
couple 17:3;70:4;85:11; 22;78:22,25; 130:22; definition 7:1; 127:16 179:23 147:5; 1<19:17; 150:8;
96:3; 109:22; 146:3; 1.(0:23; 199:8 Definitions 127:22 directed 46:17;60;21, 151 :4; 152: 1,4,9; 159:14;
166:10; 194:16 currently 25:3; 36:18; degree 123:10 25;74:19 160:4; 163:4: 167:8;
course 8:2; 109:<1, 11, 17; ,18:20; 52: 10; 54: 12; degrees 114:21 direction 90:20; 133:16 172:1,4; 174:13; 176:21;
110:22; 111:3; 173:19; 55:22; 56: 13; 62:19; 179:11,12,13,15; 180: 11;
174:22 107:11; 129:16; 169:24 delay 29:17; 173:21 Directly 132:5,6,16; 181:8; 190:11; 196:2, 24:
courses 78:9; 114:24 currents 76:2; 180:15; denluI18:18; 25:5; 43:25; 190:1 197:5:201:15
:) COURT 5:2,4; 6:4, 9, 12, 199:6 47:21,24; 19:5; 137:24, 25 director 39:18; 115:6 dozen 166:21
22;7:12,15;8:4,10;9:11, customers 90:19;96:20; denied 16:23,21; 49:8, directors 46:18 Dr 115:4
14,20; 10:3, 14, 17; 13:21; 131:20; 133:8,9; 134:18; 11; 53:25; 74: 13 disagree 190:3 drafted 44:16; 119: 11
14:17;20:15;21:5,9,11, 150:18; 163:3 density 27:24 disapproval 50: 15 draining 176:7
15; 22:20; 23:9,14, 19; cut 91:18; 133:13; 152:18 deny 43:22 discuss 9:18; 1<1:23 draw 17:10: 54:7,23;
28:18;37:19;38:4,6,19, departed 15: to discussed 10:7; 13:6; 181:1,13; 182:19; 193:18
21,25; 39:3; 41:12: 45:6, D Department 39:19; 43:17;47:-1; 59:19,22: draws 176:4; 182:16:
13,19,22; 46:5; 49:21;
50:1,6,11;58:14;59:11; 40:11,14; 44:11; 0:16:18; 72:15,20: 73:2; 76:6; 195: 19
64:8; 67:16;72:1; 73:13, 60:19; 61:16: 83: 15; 119: 19 drink 97:3, 4; 142:23;
20;81:11, 25;tl2:16, 18, dance 97:4; 176:9 98:19; 101:18,21; 171:8; discussing 190:23 175:23; 176:8
21; 95:16,22; 97:20, 25; danger 117:23; 118:17 198:4,5 discussion 20:1:3; 38:5, drinking 89:2, 5,8,11;
98:15; 102:11, 20,23; dangerous 100: 14; Department's 101:17 20; 118:7; 119:21; 123:17; 100:12,13; 134:17,25;
113:13,16,18,20; 114:7; 110:1; 111:21; 117:14,19; departs 15:5;27:17 169:11; 200:9 1<14:17,18; 145:9; 146:11;
116:6; 117:7, 20; 126:1,8, 154:21,23; 176:24; 182:8 depend 107: 13 dlsposltlve 25:15 165:6; 175:25; 189:3;
13,23; 127:8; 128:9, 13, dangling 188:20 depends 101:4 distance 28:9; 82:11; 193:1,2
21; 129:1; 145:17, 19; dote 44:7; 130:13, 13; depictions 140:2,j 153:22 drinks 144:23; 156:2
148:8, 12, 15; 163:5,21; 200: 11 depicts 143:25 District 27:18, 21, 25; Drive 72:23; 197:5
161:12,18,21; 165:1; dated 37:23;38:3,15 depth 63:10 28:7,11; 116:6; 125:3,24; driving 18:11: 135:11,
166:9; 168:13; 169:3,8, Dave 59:20 128:1
12; 189;10; 190:20; 193:9, deputy 60:18,22; 82:19; 12; 193:3
24; 194:3,7,11,22; 195:8, David 82:19;83:1,6; 83:8,10,12,13;89:17; diver 170:22 dropping 150:12
II; 198:20; 200:2,6,10, 198:22 155:2; 174:21 dividing 1-13:8 drug 198:9
17; 201:5,8,20,22,25: day 46:16;75:14; 76:2; describe 67:21; 92:25 Division 5:11,14;98:19; drunk 175:18; 176:12;
202:3 79;13;81:18,18;90:7; described 27:23 171:7 188:23; 189:1
Courtney 186:8 138:15; 139:13; 142:20:1; describes 27:21 dock 156:7 due 194:11; 200:3
Cove 39:20 160:17; 173:5; 177:17; description 59:1,7,1<1; dockage 61:22 duly 39:9; 63:2; 98:6;
178:10; 186:12, 18; 190:8,
coverage 151: 18; 179:7 9; 200:15 65: 1; 66:25; 67:2, 8,9 docked 192:14 114:1: 129:7; 169:18
covered 199:25 days 75: 13; 76:1 J; designate 196:8; 197:20 document 24:4; 38: 16; dumb 201:1<1
covers 109:6 146:20; 194:12; 199:8; designated 69:12,13, 101:12; 147:20 DunedIn 17:3; ,j8:19;
~ CR 27:19 200:1,8, 10, 12 14; 81 : 1 6; 187:6,7,9 documents 29:15 54:<1; 62:14; 83: 1<1,16
craft 87:2; 88: 10; 196: 14 doaI154:16,18; 175:15, designation 121:4; dogs 156:'1 during 8:6,12; 14:2<1;
crafts 26: 15; 9 J : 2,9; 16,16,21 124:21 Doherty 44:8; 47:,1 17:23; 76:8; 115: 11; 164:2
133:16 dealer 107:5 desire 36: 13; 56:21 Doherty's 47:7 dusk 26:7; 51:<1,7
crashing 156:21 dealing 30:10; J 18:19; desk 197:8 dollar 178:2<1; 179:7 duties 39: 16: 40;20; 67:6,
D & D REPORTING SERVICE (813) 468w2002Min-U.ScriptlD (5) corner. duties
i,
,
AQUA WAVE RENTALS INC. v. FINAL IIEAIUNG
CLEARWATER PARASAIL, INC.ET AL August 5, 1998
.
, 70:12,23; 7<1:2,1; 75:5; fighting 196:6; 197:16
11: 99:6 98:20; 118:14 182: 1<1
duty 99:3 enforces 61: 13 EXAMINATION 39:10; 80:5: !H:ll; 100:16; FIGURSKI 113:25; 11<1:<1;
engage 26:9 80:17; 83:3; 96:5; 98:7; 107:6; 11<1:10; 123:6; 117:6; 120: 14; 122:3;
,tJ E enhanco 13:19 11<1:2; 120:12; 129:8; 125:5: 152:7; 157:1, 25; 126:3
166:11; 169:19; 179:23; 158:7; 164:3; 181:12; file 7:23; 8:8: 66:8; 1<16: 1;
enjoying 56: 12 189: II 190:<1; 195:18 200:7,11
Each 10:3; 24:3; 101:10, enter 7:24; 8:7 examine 100:1 factor 119:20 filed 1<1: 16: <11:11:
11; 105:5; 119:4; 140:6 enters 39:2; 82:20: 97:24; examined 39:9; 83:2: tactors 20:4,4; 117:2, ~; 14;:22; 1<16:2; 200:8,12
earlier 60:2; 171 :19; 113:19 98:6; 11,1:1; 129:7; 169:18 118:2 filled 148: 1 0
174:20; 190:5: 199:22,25 entertainment 11:3 examples 85:21 facts 20:10,19.19;13:5 tUm 107:6,6
early 114:11 entire 74:5; 152:9 Except 10:1; 162:10 fair 58:7; 68: I; 76: 19; final 5:5; 161:9; 194:11;
easier 8:20; 100:23; entitled 5:6; 38: 17; 20 1:5 exception 118:20,21; 79:22: 82: 10; 89:23; 93:7; 200:3,7,11,12
155:21 entrance 159:2,4 152:12 95: 11; 107:21, 23; 111 :20; Finally 37: I; 128:2
easily 87:7 environment 30:22 excerpting 105:1 153:17; 154:12; 161:8,10; flnonclalll1:11
180;24
east 131:7; 132:4; Envlronmental98;19 excerpts 102:21; 127:9 tall 182: 15 find 23:25; 101:10;
141:13; 157:25; 159:6,19, erratic 100: 1] excessive 12:20; 100:10 124:22; 136:16, 18
20: 160:23: 161:10; 168:1 escorting 151:1 exchange 61:22 falls 182:8, 12, 18 tine 20:9; 41:19; 74:8;
east-side 159:4 especially 51:8; 133:9; Fame 115:10 129:14: 151:11
Excuse 23:9; 163:5
eastern 11:22 185:16 excused 97:21; 113:16 familiar 14: 14; 43:10; finish 71:24; 72:2; 77:14,
ESQUIRE 113:25 48:7; 57:9, 11; 67:22, 22: 18
Econo 132:24; 139:3; executive 115:6 75:17;77:10,11;78:11;
143:8,9; 144:22; 145:6; essentlaI15:5,10; 27:17 exhibit 8:5, 8: 44:15; 86:22; 92:19,23; 94:11; firm 10:23
147:14; 150:19: 167:23; essentially 19:16;64:6 45:14,23; 46:6.7; 58:24; 99:22; 102:2; 153:<1, 13, First 12:3; 15:23; 19:9;
176:4,5; 187:24; 188:3; establish 15:15; 55:19; 59:10,13: 102:6, 14,19, l.i; 154:19: 171:8 28:22,21; 33:12; 35:12;
190: 12; 195:13; 196:5,25 71:21 25; 103:1, 2,9; 105:22; familiarity 112:2 39:1;41:4,12: 51:3:61:12;
economic 16:7; 21:20, established 14:22; 117:5 127:3; 128:11: 140:5; families 117:16 67:20; 68:6; 88:23;
109:22; 115:1,8,11;
23; 27:9; 29:2, 4: 35: 18, Estates 55:23 115:20; 147:21; 148:7,12, family 147:13, 11 117:17; 132:22; 136:2;
25; 36:21; 43:25; 146:4 1<1,14; 152:2; 157:11:
economical 29:3 estimate 79:2, 4 193:13,24; 194:1 far 11:8; 24:4; 36:8; 59:6; 141:3,5; 149:14; 151:25;
et 171:9 62: 13; 83:25; 90:19; 157:11; 171:1; 175:14;
education 61:7; 109:1,4, Evan 115:5 exhibits 7: 17; 8: 13; 131:23; 135:16; 139:15; 188: 18
17; 135:16 Even 15:11; 17:4,14; 44:14; 126:7; 169:7 147:8; 149:13, 25; 150:2; Fish 101:22
effect 7:6; 27:6 19:19; 35:22: 63:20: exist 58:6; 199:7 154:6; 155:14; 162:8, 11; fishermen 173:4
--~..... egress 93:10 existing 23:7; 26:8; 165:6; 170;9,14,15;
, 64:22; 110:11; 111:13; fishing 11:5,7: 171:21
, 120:23; 183:21 171:1<1; 173:7; 175:6;
..._~,. , either 9:22; 26:9, 22; 122:23; 131:25; 133:5; fit 125:11
40:21; 43:25; 56:19; J.i6:25; 170:17; 171:24; expand 75: 15 18B:4; 191:18 five 52:11; 62:17,18,20;
64:17; 109:15 17-1:11; 180:4; 182:9,11; expect 120:23; 121:1 farthest 167: 18
EIIS0:7 195:19; 196:24; 197:2 expedited 21 :22: 183:1 fast 86: 12; 87:4; 123:24; 85:3; 11<1:21; 116: 16;
166:22; 177:9
element 120;4 evenings 81:18 experience 16:4; 18:17; 172:5 fixed 17:10;;'1:8; 100:23
else 9:8; 45:16; 66:4: event 7: 15 75:8; 87:25; 88:2; 106:2, faster 61:22 flats 11:5,7; 26:18, 20;
81:25; 95:24,25; 121:3; every 48:22; 96:18; 99:9; 25; 111:1 favor 100:21; 200:23 43:23: 53: 19; 120:8;
135:4; 146:22; 176:9, 13; 109:14; 116:16; 142:21, experienced 107:3 February 150:8 150: 12
186:2,3; 189:2; 190:12; 24 expert 124:2 Federal 27:18;65:12, 13, Flipping 158:25
191:21; 192:22; 197:9; everybody 123:16; explain 39:16; 111:5; 13; 76: 10
198:21 18<1:22 116:25; 170:7,18, 25; feed 99:1<1 floating 90:7
emergencies 26:12; everybody's 173;9,12; 171:20; 174:25; 176:18; foeI48:11; <19:2; 51 :9; floats 94: 15
52:9 175:12,20 189:20,23 117:25; 163:21; 188:11, floor 198:5
emergency 177:23 everyone 5:2; 109:18; explains 103:25 14,15 Florida 18:1:55:21;
emphasis 115:3 135:22 explanation 135:17 feeling 199:12 61: 15,21; 79:16; 98: 18,
21; 103:10, 13, 16,19,22;
employed 39:14,21; everything 9:8; 36:5; Exponential 127:13 feelings 199:23 101:4; 108:5,8; 115:14
40:2; 83:7; 98:23 163:6; 180:6; 190:12 exposed 62:25 feels 27:3 flow 131:23
employee 98;18 everywhere 107:25; extended 69:17;70:10, foot 41:6; 131:15,25; fluctunte 150:5
employees 96:19 192:9,16 14 153:7,8,9; 156:17;
Empress 181:10 evidence 7:8,13; 12:12, extent 8:10; 121:18 166:18; 167:20,20,20; fly 57:6
end 11:22,22; 27:8; 25; 13:3; 15:2,8,9,14,1<1; extremely 75:21; 152:12 168:2,6,7,16; 170:16; focusing 73:22
33:23; :H:7, 12; 152: 10: 22:12,13,25; 25:10; eyes 13<1:20; 167:12 172:18; 174:6,6,8,11; folks 10: 19; 89:4; 1<13:20;
153:18; 161:6; 170:9, 14; 26:21; 27:3,16: 28:5, 12, 187:20; 188:21,21 145:1; 184:12, 11
172:15; 176:23,25; 190:3; 14,15; 30:24; 34: 13; 37:7, felt 138:18; 146:2 follow 119:6; 141:16:
192:5; 200: 15 15; 50:3; 59:14; 73:25; F fence 143:7, 10: 16B: 1; 157:5; 174:1,13
ended 140:21 102:9; 117:13,18,22: 198:3,12.1<1,15 follow-up 1-11:7
118:3; 119:7,8, 13:
endorse 70:25 121 :20,23; 122:5, 1<1; facilities 12:23; 19:15; few 28:23; 29:5, 22; 58:3; followed 110:11
V endorsed 70:18, 23 145: 14; 169:<1; 17<1:2; 24:13 94:9; 100:17; 106:8; Following 181:22
ends 1<13:9; 190:10; 193:9,11: 194:3,7; 200:2 facility 19:16 157:1; 170:22; 178: 13; follows 39:9; 83:2; 98:6;
196: 18 exact 29:10,11; 74:21, facing 68:6; 144:3, <1,6 181:19; 190:1 114:1; 129:7; 169:18
enforce 61 :23; 110:7 22; 104:2; 153:8 fact 15:20; 28:9; 32:25; fewer 113:3,4 foot 8:2: 26:23,24:
enforcement 17:22; exactly 60:9; 141: 17; 36:5; 44:25; 48:24; 54:6, field 99:11; 171:5 156:16: 166:17
61:14,18;74:6;83:22,25; 142:6; 152:8; 160:1: 14;68:11,17:69:2,7,9; fifth 53:5; 198:5 Footba II 115: to
D & D REPORTING SERVICE (813) 46S-2002Min-U-ScriptJi> (6) duty. Football
~1l.'E
AQUA WAVE RI!NTAL~ INC. v, FINAL I1EAlUNG
CLEARWATER PARASAIL, INC.ET AL August 5, 1998
forgot 9:21 G 87:8;9-1:1;95:13; 118:9, head 60: 19 166:14; 167:1; 172:8:
form 101:21; 131:16; 18; 127:19: 137:16,17; heads 122:11 179:1,1,13; 180:6;
175: 18 153:8; 157:2; 160: 19; health J 3: 1 6; 119;23; 183:19; 188:19
~ forth 6:23: 13:13; 14:18; G 129:6,12 163:11; 201:3 123: 11 holidays 48:24; 51:9;
, " guests 103:15 75:21: 76:5,10; 133:5
34:13: 119:2; 125:2; gambling 171:3 hear 15:9; 16:9,11,13;
144:21; 145:11; 151:2 Game 101 :22 guided 11:20 24:23; 28:22; 33:2; 36:22; home 185:23; 199:3
forward35:19,19;12:15, gathering 19:1 guIdelines 110: 11 37:7;47:13,17; 153:11; honest 182:2,j
25; 43:11; 48:6; 70:21; gulf 11:21; 17:7:26:10, 155: 11 honestly 66:25; 112: 16
71 :5; 116:24; 117:11 gave 198:4 16; :H:I0; 40: 17; 18:19; heard 20: 12; 23:22; 2,1:5; Honor 7:22: 9: 17; 26:8;
forwarded 43:12 gonerol13:17; 19:8; 55: 13; 57:5; 62:25: 78:21, 26:19; 29:14,16; 35:11; 181:19
27:11; 29:25; 76:14,11; 2-1;93:5; 131:8; 137:17, 12:3; 17: 15; 110:2; 150:2; hope 65:13;97:12
foul 94:20 88:16; 122:20; 152:21; 19; 152:10, 11; 151:3,8; 157:20; 179:10; 190:5: hopefully 76:21
found 90:7; 139:13 167:1: 195:13 155:9,12; 156:21; 184:11; 201:9 hoplhg 22:7; 114:16
four 11:3,9; 26:18; 34:2, generally 18:7 188:19: 195:21; 199:5 hearing 5:5,6, 16; 6:23;
18: 52:19: 53:19; 54:9; gentleman 170:1; 173:16 Gulfvlew 11:14 8:6,17,18,21,25;9:1,9, horsepower 109:5;
75:2, 12; 77:25: 78:4,6; gentlemen 85:21 21; 10:8,10; 13:5; 14:13; 112:7.7
guy 88:23; 115:4; 139:3; 15:13; 16:5; 17:23; 18:24; hospital 196:12
95:15; 114:14; 115:24; Georgia 40:7 188:22; 195:12 19:22,23; 20:22; 21:13, hotl 56:1
120:8; 131:12; 140:16; GERALD 113:25 guy's 90:8 14,16,22,22;22:10,17; hotel 22:5; 27:22; 62:23;
146:19; 156:18; 163:9; gets 52:13; 93:15; guys 19:22 23:7; 25:5; 37:5; 39:2, 5;
166:22; 177:14,16; 184:7; 147:13; 15]:13.15;
112:10; 179:9,18; 182:7; -19: 17, 20, 24; 64 :7; 75:7; 162:19,22,22; 178: 15;
195:3; 198: 11 ;,199:9 185:25; 186:6 H 82:3,20,23; 97:22,2-1; 183:23
fourth 52:22 girt 160:19 98:2; 113:17,19,22; hotel's 183:23
frame 17:1 117:11; 123:4; 126:1;
given 35;20; 37:12.23; H ]69:17 127:23; J 29:3; 136:20; hotels 22:5; 28:7; 56: 19;
frames '200:14 44:21:90:15.17; 111:6; habit 152:19 138:]4; 139:10: 149:1; 68:15; 176:2,6; 191:5
frank 58:3 192:18,18 half 8:24; 116:20,20; 169:11; 183:4; 193:17; hour 8:23; 42:3,1; 61:20;
free 76:23 gives 48:11 172:20, 24; 173: 1,4 195:1; 202:5 110:5
Frenchy's 62:23 giving 179:16;200:25 Ha1l115:IO Hearings 5: 12, 15 Hours 26:6;75:13;
frequently 42:14; 86:4; goes 6:15, 22;9:2; 21:15; hamburgers 156:4 heavily 75:16 177: 17
88:12,21 69:17; 93:11, 21: 131:23; Hamden 72:23 heavy 43:10: <18:23; 76:5 hoVl's 34:18
Friday 84:18; 142:22; 190:10, II, 11,25; 19]:18; Hancock 46: 19 hectic 180:23 hundred 70:4,6: 156:16,
200: 17 17; 171:3; 177:19
.'- ]76:21 good 36: 19; 64: 1,2; 88:6, hand 39:3; 8:l:21; 97:25; Held 15:24,24; 16:10, 14, Hundreds 95: 1
.' ) Fridays 152: 15 23; 18:16; 22:2: 23:13;
6; 91 :22,23: 97:5; 114:5, 110:25; 112:3; 113:20; 2.1:20; 29:21; 35:7, 11.20, hurt 87:17; 150:7;
....:1"';- friend 88:20, 22; 139:13; 6; 121:7; 146:8; 151:12; 129:1; 134:18; 167: 10;
20; 36:2; 39:8, 13; 58:18; 172:12; 173:5; 179:18
171 :23 196:19 169: 12 63:24;73:16; 103:3; hut 142: 1
front 11 :6; 13:6; 34: 13; government 36: 11; handed 73:5; 157:7 115:20; 118:5; 119:11;
36:4; 37:4; 43:5; 66:9, II, 58:24; 60: 16; 65: 12, 13, handled 177:10 130:4,1,10; 135:20; I
l.i; 70:16; 73:7; 74:11; 14; 114:23,24; 116:9; hands 144:24 136:20,25; 137:1,2;
118:11; 126:10; 140:4; 147:21; 148:10,12,14; hands.on 107:10,11,14; 138:5,8,18; 139:11;
143:17; 144:15; 155:16, 152:2 111:4 149:12; 166:6; 171:19; Idea 79:5
19; 156:7, 14,15; 160:19; Government's 193:24; handy 21:6 199:22 Identification 128; 17;
176:16; 184:9; 185:15,19. 194:1 happen 88:18; 177:23; Held's 18:11; 102:22 135:10
21; 187:16: 188:2,3; graduated 115:2 199:16 help 52:14; 171:5; 196:8: Identified 30:3; 145: 14
189:21; 190:1,7,12; grandfathered 14:6; happened 54:22;80:9; 197:17 Identify 26: 14; 49:20;
192:21,21,23; 197:8 23:5, 10 91:16; 130:8; 137:1 helps 171:6 53:6; 58:25; 88:22; 90:5, 6;
fuIlB6:1l; 114:7; 129:10; grant 11:25; 31:18 happenIng 35:24; 52:16 HI 58:18,19;89:17 128:24: 141:6
169:21; 177:13; 199:7 granted 17:17; 121:22; happens 179:9 high 17: 10; 27:24; 54:8; Idle 26:9; 51:16,18,19;
full-time 177:14 139:12 happier 86: 12 150:25; 156:19; 171:25; 174:7; 178:7
function 99:2 granting 119:13; 138:21, harbor 57:5; 118:15; 182:9; 196:18; 199:1,j Image 140:8
functions 60:1 25; 145:22 198:24; 199:3 higher 17: 12; 86: 15; ImmedIate 60: 16, 17
funneled 54:2,j graphs 104:7 Harbormaster 15:25; 112: 19 Impact 7:9; 12:21; 19:14;
tunny 198:8 grass 142:1 16:2,2; 23:13; 24:20; highly 199:16 78:1; 161:9; 165:5,7,10,
, further 6:21; 7:8; 27:8; great 7,1:3 29:22; 39:15.17,18.22, Hightower 155:2 14
33:5i63:21; 80:11: 91 :18; greater 87:18; 109:5; 24,25; ,jO:l, 9,10; 58:20; Hilton 62:24 Important 15:20,22;
96:2;97:19.20; 109:19: 117:9 59:2,13; 118:5,8,9; himself 80:8 29:2.j; 34:,j, 21; 73:17;
113:12; 120:11; 121:25; greatly 1l0:12; 111:12 130:1: 166:7 hired 39:23 121:3,19; 116:6
151:7: 166:8; 169:3,3; graw 115:23 Harbormaster's 130:5 history 16: 19; 114:22 Importantly 36:20; 37:1,
172:12; 173:6; 179:19; Gr1ll62:23 Hard 87:13; 92:4; 95:5, hit 87:7; 101: 11; ]92:1 14
180:4; 181:18; 190:17; group 121:11 18: 141:16 hitting 192:3 Impose 12:20
~ 193:7,8; 194:9; 196:2.2<1; groups 61:] 9 harder 105:4; 196:21 hold 97:9; 174:3 Imposed 50:21
198:18; 199:23 Guard 16:3; '10:3,5,8; hasn't 59:3 Holiday 56:8,14; 63:2; In-law's 123:23
furthered 14:4; 27:7 55:17,20; 57:3,7; 61:17; hate 177:5 68:7,8,10; 90:] I. 13; Inc 5:6,7: 23:20
Furthermore 31 :7; 197:17;201:3 haven', 50:25; 173:20; ]32:23; 117:13; 148:22; Include l,j:2; 8'1:-1;
34:20; 36:24 guess 9:20; 13:25; 33:9; 197:16 151 :22, 21: 155:23; 103:13; 101:8
future 89: 12 36:2; 67:24; 68:8; 77:24; hazard 195:17,18 162:20,24; 165: 19; Included 41: 10; 119:22
D & D REPORTING SERVICE (813) 46S-2002Min.U.Script@ (7) forgot - included
:. .....;' /: ',:,: " ~.," : '," ': .",1. I,..~.. ~~. ...Ij.' ,r ," "'::" \'_ ."
,',
AQUA ,WAVE RENTALS INC. v. 11INAI. IIEAIUNG
CLEARWATER PARASAIL, INC,ET AL August 5, 1998
Includes 19:9, 13: 63: 14 166:1, of 90:7: 131:9, 14, 16; Icosa 148:21,22,23:
Including 10:6; 28:8; Inlend 10:7,11 J 132:10; 142:11, 13; 152:5; 170:2,3,4
109:8 Intenl 51 :22 .- 153;10,11: 192:5, 11 Icast 20: 17; 62:2; 70:/1;
'1 Incorrect 19:1 Intentional 64:13; 100:9 J 5:13 kind 20: I; 29:8; 32: 1,1; 91 :9; 95:20; 107:8; 111 :7;
40:4; 41 :24; 55;5; 56:1; 118:18; 150;25; 170:Hi
Incorrectly 19: 1 Intercoasta117:6; Jacket 100;25 62:8; 6-1: 13: 67:21; 71 :16; leave 114: 11, 12; 166: 6
Increaso 25:7; 55:9, 10, 131:21; 132:12; 152:11, loll 85:24 78; 1: 85:7; 88:4; 92:4; leaves 6-1:7; 82:3; 97:22;
14; 87: 13,14; 101 :3: 23,25; 154:5, 15; 180:9; January 150:8 93:20; 97: 15; 109:23; 1J 3: 17; 126:/1
109:14; 184:8; 199:1, 10 181:25; 182:1,7,11,14; JASMIN 172:2; 195:10, 115:18; 116:25; Hl:16;
Increased 16:25; 17:2; 186:6,6; 192:2,8 12,12; 198:9 170:6,18,24; 172:24: leavlng91:15
55:6 Intercostal 11 :22; 131:9 jet 21;18; 26;7,10,12,18: 173:19; 177: 10; 178:23 loft 132:7,9; 161:,1
Increases 184:11 left-hand 68:17,19,20;
Increasing 87:22 Interest 6:18; 7:2, 4, 6, 28:8; 51: 12,12,24; 62:7, kinds 121 :23 161:7
10; 14:2,3, 12: 21: 18,21; 18; 1 I 2: 19; 113: 1; 120: 8, Imew 35:23: 178:7
Indicate 12:13; 19:10; 27:4,6,9; 36:20, 22; 24; 146:19,20: 149:15,16; Knock 171:14, 16 leg 86:3; 182:15
138:8: 140:7; 148:1 Ill: lof; 146:5; 183:3 150:15; 154:22: 173:18; knots 199:9 legal 81:19; 107:15;
Indicated 38:9.10; 49:6; Interested 194: 15, 16 174: 1J; 177: 16, 25; knowledge 62:14; 134:5: 151:3
82:6,11; 123:2; 138:18; 178:20; 182:18; 187:22; legislature 32:10; 35:5,
139:15; 147:3,6; 194:14 Interesting 100:3 190:23; 191 :25; 192;21: 149:9 9; 65:11
Indicates 13:1; 18:20 Interests 21:20:35:19; 195:16,20; 196:13 knowledgeable 43:7 length 167:16
Indicating 1~5:14; 161:3 43:25 jet-drlve 41:6 known 138:14 Leslie 5:23;38:1;45:10
Indications 47:11 Internet 103:4 lettles 93:24; 94: 1 knows 141:19 less 18:12;78:15;88:2;
Individual 88:19; 134:15; Interpretation 21:3 jetty 69:7; 93:6; 94:3; 100:14; 107:20; 141:8, 10;
135:4,15; 146:25: 201:14 Interpreted 19:2 lof4:7; 172:15: 187:21; L 186:11
Individuals 103:20; into 6:21; 11:21; 17:6; 190:10,14,23; 191: 18,21 letter 118:5, 11; 138:6
120:9; 121:11; 133:19; 20:1,6,13;31:16;33:10; Jim 115:4 L 98:5,10 letters 130:23
134:24; 144:18; 145:5,9; 43:17; 48:19; 53:2; 54:25:
147:10,11 55:13; 57:5,5; 59:3; 66:25: Jimmy 171:22 labels 148:13,14 letting 176:20; 183:22
Industry 79: 15,16 67:4; 70: 13; 71 :23; 72: 2-1; job 40:20; 59:1, 13; 65:1; lock 80:7; 93:10; 170:18 level 51:8
Inexperienced 87:20, 85:3; 88:10; 91 :6; 102:9; 66:25; 67:1, 2,8,9; 71:18, Lagoon 170:2 liability 111: 13; 171 :9;
20; 99:8,13,13; 110:13,
21,24;88:5,15,16; 107:3 103:14; 116:8; 132:11; 14,15; 113:10; 181:11 lold.B:5; 17-1:12 176: 14; 199:5
Inform 173:16 144:21; 145:14; 152:22; jobs 10(6:7 Land 7:6; 13:13; 14:4,7: liaison 60:12
Information -i9:1,4; 154:3; 170:16; 171:1; John's 92:6 17:18: 23:6; 24:2; 25:25; IIbera126:24
:~~~) 99:4,14,15,18; 112:21; 179:1; 190;24,25; 191 ;2; Johnson 36:6; 119:9, 19; 27:7; 48:-1,14: 56:7; 57:19, license 135:12; 149:13,
118:12; 17-1:17 193:4; 197:5 24,25;58:2; 120:15; 22,23; 170:20,24; 171:2;
Informed 138:5; 185:12 Intoxicated 85:24; 91 :24; 120:3; 122: 16, 24; 123:9 121:3; 124:11,21; 125:6; 175:19; 185:11: 198;14
Ingress 93:10; 178:1 97:13; 175:18 Johnston 5;13;9:2; 127:20; 174:7; 182:13 licensed 57:3,7; 185:5,9
14:22; 67:21; 157:4 land-use 125:7
Inherently 110:1 Introduce 10:19 joining 191 :21 licenses 135: 12: 199: 24
Initial 173:24 Investigate 87:24 joke 193:5 large 154:21,23; 170:11 lie 119:7
Initiate 25: 19 Investigated 85:12; larger 100: I-I; 101:2 life 13:19; 100:25
Injured 100:2.1 96:16 Joseph 5:21 Last 67: 17; 80: 10; 85:23. light 52:3; 69:23, 24;
Injuries 18:9; 104:24,25; Invoked 9:22; 64:6 JR 39:8, 13 25; 105:21; 108:18: 124:5; 70:15
Judge 5: 14; 32:3; 34:24; 140:11: 141:7; 144:25;
105:12,20 Involve 105:13 39: 16: 47:23; 67:23: 145:1,3; 161: 15: 196:7 likely 185:8
Injury 105:17; 107:18 Involved 18:5; 33:3; 101:15; 114:10; 125:16; late 119:18 limited 26:17; 32:21
Inland 137:20 40:15; 101:1'i, 21 128:23: 131:4; lof5:13; later 139:10; 194:21 limits 52: 12; 71 :21
Inlet 49:3 Involving 18:8 157:5; 166:10; 168:1; laughing 198:7 line 18:6; 31:23; 73:2,1:
Inn 56:8, 14, 15; 63:2; Irregardtess 87:23 169:5; 170:7,25; 171 :21; Law 5:14; 10:22; 14:24; 125:i3; 143:8; 145:6, 11:
68:7,9,10;90:11,14; 173:10; 174:25; 176:18; 150:25; 167:23; 196:3,18
132:23; 139:6; 142:1of; Island 55:23 189:9 15:5, 11; 17:22; 26:13; lines 29: 17
147:13; 148:22: 151:22, Issue 6:22; 11 :24; 13:5,6; judgment 97:15 27:18; 31:12; 52:23; list 126:24; 127:11; 139:8;
19: 19; 20:22; 29:23; 31 :9; 67:23; 81:11; 98:20;
24; 155:23; 162:20,21; 33:3; 34:15,23: 35:2, 4; jump 64:13; 171:5 100:24; 101:15; 107:9; 193:19
165: 19; 166: 14; 167: 1; 41:12: 73:17: 7of:3; jumping 86:1, 5;92:12; 109;2,14,17; 11 1:1,9: listed 5:8:30:13, 14,23;
172:2,8,8; 176:3; 179: 1, 118:17,18; 119:18; 100:9; 108:11, 16 112:13; 114:9, 25; 116:9; 31:21,23;41:16;66:1;
4; 180:6; 183:19; 187:23; 122:17; 146:6; 163:15,21, June 46:21; 47:1,12: 117:8: 118:14; 125:11; 67:8; 122:20
, 190:12; 196:25 2'i; 168:5; 176:15; 195:l<1; 130:2,14,15; 138:7 131 :of listen 33:22
input 121 :lof 201:22 Lawrence 5:13 listened 118: 1
inquire 129:23; 130:3 Issued 79:7,9: 85:9; K laws 1 10:3,7 listening 119:8; 123:17
Inquired 130:24 118:13; 149:13; 199:19, lawyer 64:3; 120:5 literally 79: 13
Inside of2:21; of8: 12; 51:8; 2<1 lawyers 120:5 little 16:J9: 18:16;66:7;
72:19;76:16;77:8,12; Issues 31:17; 35:7; 36:7; keep 50:6; 94 :20; 174: 10 lay 121:18 101:1; 11<1:10; 119:21;
78:22; 122: 11; 191: 12 .W:15, 22; 67:6; 86:9; keeping 187:3 layout 94:13 142: 1, G; 149:20; 150:8;
Instead 161:16 195:6 keeps 94:22; 180;20 153:21: 158:10; 160:19;
U Instructed 10:14 Item 7:23; 15:21; 38:23; Kent 114 :20, 21, 25; leading 117: 17 164:25: 171:19; 173:3, 19,
Insurance 36:23; 135:6, 201:25 115:1,5,6 leads 11: 16, 21 22,22; 178:17; 196:23;
13; 151:18; 171:8; 175:19; Items 24:22; 122:20 kept 120:3 learn 136: 12; 139: to 198: 18; 201:2
178:22,23,25 Itself 23:4j 100:21; Key 11:17, 17,18; 17:9; learned 136:22,24 Llttlelohn 82: 19; 83: 1,6;
Insure 31:4,5; 135:9; 109:25; 166:17 63:1; 68:1,20,21; 78: 18; learning 112:2 155:<1,5
D & D REPORTING SERVICE (813) 46s-2002Min-U.Script1Hl (8) includes - Littlejohn
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::",.;,",.',',"'. I~"":""l"',;"':',:,',,",','-,':.'.:~",',"":':::~(t:":. ...~.~< :':"""',,;,,',,',,".,.'.,',,',,',',',','.';,:~::'~rIt:'... . ..':'! ~ .' :",';'. ",; I.. '.:';....I:.,:.:....,'.~:.:~. ,.\:'..'~: . ,. . .. ,.. . ,. Ii,
" ," ' ."',; '-':':':':,:,' ~;:.,:,.'<.:/"; :,"'::.::'..":"',J"":""\:':,:;I~':."''',:,,',,',,~::.",',','".:,:,:;."',,.,.... ,.--:~:~. ~
.... '., ....', . ..:.' ",.' ". :.:<::');.:\. ';,;, :::(::; ::,::,.:",'t:F,'(:}'} :0;;;;::) "L.../ ':<,/;:2 ;'::i ;:;,:,'X} :;}::}:::' :;,.?:;:;, ":;' ,:'Xi ~ '..
,',
AQUA WAVE RENTALS INC. v. 11INAL IIF..AIUNG
CLEARWATER PARASAIL, INC.I!T AL August 5, 1998
live 22:1; 8<1: 11; 1<12:2 main 13:5;36:2;.18:18: mathomatlcs 96: 10 mentlonod 21: II; 36:9: 107:2,18; 111:1 I; 112: 17:
locoI43:9; 5<1:14; 55:2; 76:8,11; 131:22 matter 6: I 5; 7: 12; 10:25; 56:22; 60:6; 61: 10: 63:3: 121:3,19; 125:20; 111:8;
116:9 mulnlv 2<1:6, 10: 55:20; 16:6: 24:23: 25:4, 25; 75: 11; 78:7; 79:21: R9: 17; 142:15: 144:10.10;
~ located 11:14:31:5; 56:] I; 191:15 32:10,10;46:12, ]3,23: 90: II, 24; 121 :7; I 50: I 8: 153:21; 164:9; 165:1,4,
5<1:12: 139:5; 118:2; maintain 55: 18 -17:2, 13; 60:22; 76:7; 17'!:20, 2<1; 181:3; 193:13 14,21,22: 166:3; 169:7,9,
176:23: 187:13; 190:3,6 maintained 49:23; 55: 1 7 81:11,22; 112:11, 12: montlons ]20:1 10: 177:7,8,8,9; 179:8;
location 12:] B: <12:23; maintains 19:17; 55:15 117:7; ] 2] :6; ] 27:6: mere 28:9 180:2,1; ]81:14; 182:16:
69:25: 70:3: 72:23: 78:20: 1<19:1; ]75:4 merged 83: 16 186:2,4, 14, 18: 187:20:
maJ~r 17:5; 36:25: 99: I 0; 192:10,17,22: 196:3;
115:9; 131:.1; 133:12,20; 168:5,8; 199:5 matters 6: 12: 8:5; 9: 1 ,I; merit 26:4 197:12
149:11: 1;6:8: 158:5,7, 16:4: 25:12,14,20,22; mess 176:24
12: 160:5; 167:4, 16; majority 79:22; 93:25; 59:23;60:4; 121:23; 195:5 met 25:4; 37:.1, 11; 88: 1,1, most 29:24:36:20; 37:1,
168:7,24; 178:2; 180:2; 94:9 maximum 167:16 11; 57:8:78:11:85:2:86:7:
186:15,21; 187:17; makes 32:16;71:15: may 6:15; 11:11; 30:9; 23: 118:25; 119:4; 125:23 89:3;91:7,7,17: 105:23,
, 189:18,21; 192:2, 21; 124:14,16 37:23; 38:3,15,24: '12:9. mid 150:25 24; 1<16:6; 147:12; 172:13,
199:17 making 20:8,20; 21 :23; 9,16;45:18;47:20;60:9, middle 130:15; 172:16; 15; 175:2.1; 185:8
Lodge 139:3; 143:8; 33: 12, 13: 50: 13; 67:6; 15,17;61:3;80:12;82:18; 173:20; 180:25; 181:1; mostly 92:12
188:19
145:7; 1<17:14; 150:19; 71: 17; 72:6; 96: 19; 112:9; 100:8; 101:2; 102:21; might 8:11, 20;60:10; motel 72:23
167:23; 176:1,5; 187:21; 117:2; 123:8: 193:5 108:25; 113: ]6; 120:4; motor 65:2
188:3: 190:12; 195:14: man 196:21 122:12; 123:6; 125:1<1, 14; 89:5; 93:16,17,18: 94:18; motorcycle 107:22;
196:5,25 126:13; 128:18; 134:15; 97:15; 123:15; 159:22;
manager 7~5; 16:19; 138:2,13: 192:18; 194:15 160:8: 185:3; 189:2; 199: 15
Lodge's 143:9; 144:22 60:18,18,21,22; 195:13; maybe 51: 1 2; 66:7: 76:4; 190:4; 192:16: 201:7 move 68:14; 72:19; 71:7,
long 8:24; 39:21; 83: 10, 196:5 91:5: 94:9; 102:8; 111: 12; Mike 46:19 10; 102:8; 136: 10; 144:21;
12:98:23; 107:4; 110:10; managers 22:5 153:21: 166:22: 190:25: miles 42:2,1; 62: 1 6; 145:14; 172:12, IB; 173:8
127:6; 130:10; 148:23; mandatory 46: 17 191:11,14; 191:17 64:20; 110:5 moved 51:11;70:19:
149:9; 171 :10; 190:B,9 maneuverability 100:16 McFarland 71:1 million 135:14; 151:17, 173:6; 180:3.8,10,11,16,
long-term 15:25 manner 31:1 1; l1B:l mean 56:7:68:18:74:2, 19,20,23; 178:21; 179:2, 18
longer 26:19 many 18:5; 78:2; 79:2,2, 8; 76:23: 77::3: 78:4: 79:21; 7 moves 6B:3; 100: 11
look 12:<1; 2B:21; 30:7,11, 7; 91:23,25: 95:1; 104:10: B7:15; 109:10,18; 110:19; mind 118:2; 123:16; moving 70:25
11; 31:20, 21; 32:2; 33:16; 122:6; 131:11; 179:14; 133:13; 134:17: 137:5; 141:17; 152:3; 194:23 much 6:25: 20:4; 32:9;
58:23; 103:22; 105:14, 17, IB2:1O; IB5:19; 188:6 146:1, 12, 19,20; 119: 14; mine 139:14; 171:23 77:5,7;86:6,12;89:11;
21,22; 112:21; 119:2, 17; map 193:17 152:16, lB; 154:6; 155:12, minimum 51:20: 86:17; 93:11,13,14; 126:3;
120:2; 131:22; 140:3,4,6; 13; 165:20; 16B:25; 156:17: 186:18; 186:7, 16,
, .'~"'1 141:11,17,20; 142:25; March 150:10 172:16; 173:12; 175:20, 90:20 16;193:6
"t,"j\# 113:5; 1<11:25: 1 47:20; marin:. 39: 19: 54: 1 5; 24; 177:7; 178:22: 179: 10: minimum-wake 51:23; multifamily 27:21
167:11; 169:6: 189:14: 55:23 IB3:22; lB7:5; 190:13; 52:3
191:24; 197:6,7,22,23; marine 16:4; 17:21: 192:9: 195:18 minute 51:3; 172:20,24; music 81:15,15; 112:2
198:10 18:15,17; 22:2; 23:12, 18; means 17:4; 171:2: 173:1, .1 must31:9: 32:2; 51:16;
looked 20:22; 30:20; 24:20; 25:3,10,11,17,19, 173:2; 198:17 minutes 23: 12: 24:21; 52:22; 53:5
32:1;31:15; 119:18; 20,22; 35:16: 36:8; 39:18; mechanism 41:22; 26:5; 35: H,; <15:9, 17: 46:3. muster 33:15
125:9; 179:1; 189:23 40:22;12:5,8,10,15,18, 177:11 7;49:23;51:1;82:7,16; myself 10:22; 1 16:9;
loolclng 30:20:31:9;38:1; 24,25;13:3,6,7,15,17, mediator 99:9, 10 119:18; 122:5, 15; 123:5 118:4
15:16;48:17: 121:5; 19,21,24:14:11;-15:9,17; Mississippi 172:14
132:7,13; 141:5; 142:16, 48:6; <19:1; 55:21; 59: 17; meet 15:11,12;37:2: misuse B5:18: 100:5 N
17,18; 144:12; 158:25; 60:4,11,12,22; 61:2, 8, 38:13: 110:10; 125:1,1,11 misused 85:22; 100:8.
171:23; 175:22; 197:24 15,21;65:20;66:15,17; moetlng 19:5; 37:8: 12:9; mlx92:14,15
lose 191:24 67:6; 70:13,16,17,21; 46:14,17,18,21:47:1,12, N-Q-L.E 98:16
lot 16:4; 29:23; 32:12,13: 76:6; 83:8, 10,22,25; 15; 50:21; 61 :3; 111:11; mixed 27:21 N-Q-L-L 98: 12
18:23; 51:14, 24; 55:1; 98:21;99:24: 101:19; 122:15; 123:2, 5, 12; mlxed.use 28:6 name 5:13; 6:1; 19:23;
70:17;7<1:1;77:7,7;78:23; 106:1; 110:7; 127:14; 137:3,4,5,7.9; 138:2,9, mixing 195:23 28:19:39:12:11:10,15;
79:6: 87:23: 92:17; 93: 12; 137:3,4,5.23: 170:19; 13: 139:11 models 119:.17 63:21: 83:5; 88:23, 2.1:
95:9, 11; 112:23; 116:23; 190:5,5; 197:18; 199:21 meetings 47: 10 modifications 60:3 98:9; 111:7: 115:4;
122:24: 146:13,21,24; mark 50:4; 1.18:1; 178:6 meets 32:18,18; 33: 13; mom 201:11 129:10: 169:21; 195:12
147:15; 157:8; 170: 10,12: marked 44:14: 58:23; 59:21 moment 108:19 named 129:16
172:6; 177:20; 180:20; 63:10; 147:21 member 13:24: 71:15: Monday 112:22 National 114:23
182:16; 185:11; 186:9,11; markers 55:18; 131:22; 80:20: 81 :.(; 119: I; Nationwide 171:7
187:12: 190:2; 197~4, 5,6; 135:20,21; 191:13 121:13; 198:23; 199:20 money 30:17: 113:2:
198:25 marking 178:3 members 10:8,9; <12: 12: 179:16: 182:23; 191:21 natural 30:21
Lotus 198:22 markings 180:16,18 66:5: 109:10: 121:7; monies 17.1:10 naturallv 43:12
low 132:1; 152:12 MARTENS 198:22,22 122:6; 127:13, 13 monitor 133:12,15 nature 114:24; 116:11:
memo 17:20; 2<1: 19; monitoring 177: 19,24; 121:20: 129:19
M Martin 59:20 37:21,22; 38:2; <14:8, 9; 184:19,22 navigational 54:13: 55:2,
Mason 115:9, 12 102:22: 138:6 months 85: 1 ,I 18: 63:9
_____.-..-....-..............-_____.__..._w.~~ mass 174:7 memorandum Hi: 10; near 11:16;34:12:86:13:
~ moon 199:7
ma'am 108:7, 10,17; masters 114:20,22; 35: 13; 37:25; 38: 15. 24; more 17:5,11,14: 18:8; 106:6: 121:9; 114:1
109:9; 147:25 115:3,3 41: 13, 15, 19; 17:20 19:19;26:2<1;18:11; nearby 24:8
machine 136:!) masts 17:12 memory 79:9; 123:7 5,1: 13; 78:1, 6; 81 :21; necessarily 25: 15;
mailing 7:25: B.2; 127:25: materials 25:2: 45:3; mention 23:12;35:18; 87: 16; 95: 12; 98:20; 99:6; 110:19; 176:10: U18:2
193:14 119:10 67:5 1O():1<1, 17, 18; 102:24; necessary 45: 1 .1; '19:21
1>& J> ImI'ORTlNG SF.RVICE (813) 468-2002Min-U.Sc::ript0 (9) live - necessary
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A;QUA WAVE RENTALS INC, v. I;INAI. HEARING
CLEARWATER PARASAIL, INC.ET AL August 5, 1998
neck 182:9 103:10,13,21; H>1:5, 1,(; oHer 26:12; 59:9; 1,18:6 openlng9:1S, 16; 10:17; ordinances 5';: 19;
need 46:2; 72:2; 82:4; 106:13; 128: 11; 145: 17, offhand 50:25 22:20; 28:18; 51:2'(' 25; 61: 10, 15,2,1; 62:3
95:22; 156:18; 163:5; 18,19; 147:21; 148:7; Office 18:21;21:8;22:3; 201:9 orientate 146:9: 152:2
.') 183:18; 185:13; 201:25 152:2; 166:19; 18<1:8; 46:2,(; 60:10; 61 :21, 23; operate 14:7;51:4, HI, orientated 1'(7:1<1
needed 67:3 193:25 79:7;83:9,19; 115:22; 20,21; 52:2, 3; 53:3, 15; orientation 78: 13;
needs 35:1; 52:14 numbered 197:23 130:6,9, 10; 193: 1 ,( 54:25; 56:21; 63:9; 72:25; 135: 18, 19; 136:3,3,7;
negative 12:21; 19:14 numbers 20:24; 21:5; officer 5:16; 9:9; 19:23; 74:1;76:1,25; 108:25; 146:8
neIghboring 8:3; 24:6 90:2,8 20:22;21:11,1'(;40:6; 109:4, 1l,16; 111:18; orIented 24:11
neIghbors 22:3; 24:10; numerous 185:20 49:17,25;79:12;98:21, 112:17,18; 129:2,(; orIgInally 39:23; 42:22;
25; 99:4,5,21; 106:1; 130:19; 136:8; 117:23;
193: 15 0 108:4; 113: 15; 123:4; 175: 10; 182:,(; 185:7; 57:23,2"; 72:21, 22
new 17:8; 23:6; 51: la, 2Q; 127:23; 131:22; 190:5,6 188:10; 195:15,20; Orleans 170:21; 172: 13
59:3; 107:9, 12; 125:21; officer's 19:20 196:21 others 122:13; 138:21
170:21; 172:13; 173:2; o'clock 114:1"; 140:16 officers 19:22; 99: 11; operated 57:2: 77:9; otherwise 131 :21
181:13; 184:11 , object 73:1 0: 100:23; 110:6; 111:25 87:19 ought 20:12,13
next 46:21; 82:18; 90:1; 117:4,16: 137:11; 163:14; offIcial 65:21; 66:21; operates 90: I; 93: 5,7; out 7:1; 11:21; 13:12;
97:23; 113:18; 128:22; 168:8 167:17 17:6; 18:6; 22:6; 24:16;
131:9; 132:16; 139:13; objected 137:13; 138:21, 127: 1 0; 128:9 operating 18: 12; 18:8;
143:5,15,25; 114:8; officially 6:3; 126:9,25: 26: 16; 27: 10; 31 :12,15,
24 51:7; 56:17; 57:7,9: 72:19; 22;33:17,18;31:1,10;
146:25: 158:3, '1,16,25: objecting 11:7,8; 26:19 128: 13 77:12; 78:21,24; 85:23; 35:25; 36: 18,21; 37:2, 4;
159:13,18; 160:7, 18, 18; officials 118: 14
174:8; 197:13;200:17 objection 7:25; 8:19, 21; often 18:8; 102:1 89:18;91:21; 149:10; 12:3; 43:5; '16:20: 48:19;
9:3,10;44:18:45:2;.(6:3, 164:17; 178:11: 188:24; 52:3,5; 53:12, ] 6,17:
nice 54:22; 114: 16 4;50:2,9;59:11: 102:25; OhIo 114:20; 115:9,9,13 196:22; 198:17; 199:14 55:13; 57:5; 63:17; 68:2,1:
nIght 139:22; 142:21,24 145:15.16; 148:8; 150: 12; old 54: 16; 67:9; 135:7; operatIon 11:13; 26:7, 69:17,25;72:13;74:6;
NIno 150:7 154:23; 164: 18 173:2; 180:7; 181:10, 13 17: 37: 11: 43:23: 49:3; 75:12,22,23; 78:2, 24;
no-wake 26:8; 51: 16, 23; objections 24:10; 50:11 once 52:5; 83: 16; 108:22; 56:15,23,24; 62:18; 79:3; 80:8; 82:15; 85:2;
70:10; 135:21,24; 153:18 Objectives 127:21 167:9; 177:12 76:17; 90:22: 92:24; 86:1,8,17; 87:6; 89:8:
nobody 73:4; 108:18 objectors 24:6 one 6:5,6,14; 7:23; 8: 12; 108:5; 120:24: 130:11: 90:13,19:91:12;92:21;
noise 24:12 obligated 124:22 9:5,12; 15:11; 17:3; 21:19: 146:14; 150:1,3,4,13; 93:11,21,24; 94:7, 20, 22.
NOLL 98:5, 10, 12; 155:1 observation 150:22 22: 1; 26:10,18; 29:7, 25: 163:12,12,16,20,20; 23; 95:6; 97:7; 103:5;
30:5; 33:5; 37: 18: 40: 10, 179:11,12; 183:8; 188:6, 107:9,12; 109:23; 111:10;
non-attorney 10:/1 observe 84:11; 106:6; 20;41:9,13:42:12,19; 10,12; 198:6 120:6; 130:23,24: 131:22:
.'---j non-Interested 27:4 139:16; 144:18; 145:5 43:1; 44:11; 49:14: 51 :3: operations 25:11; 36:24: 132:1,2,8,13; 133:21,22;
nor 25:1 observed 89:18,21; 52:7; 53:5, 19; 54:2, 5, 22; 48:11,12; 52:11; 53:9; 135:21; 136:16, 18;
~L_.t'. normal 42:1;90:22 91:15; 139:18, 23; 145:9 57:2; 59:3; 60: 1; 63:2; 56:13; 62:19; 76:16: 137:14; 139:6, 13; 116:20;
normally 10:8;41:6; observing 76:24 66:21; 70:24; 71 :16; 120:25; 163:23 147:23; 148:10; 152:7.9,
59:23 obstructed 108:16 72:10;73:6,8,17;74:11, operator 53:1; 107:13; 10,22,25; 153:2; 154:1,3,
north 11:19; 199:4 obtain 130:22 18;77:11;79:16;80:1,7; 111:10: 131:19; 117:1 8; 155:9, 17,19; 156:7, 11,
note 73:5; 201:13 obtained 103:4 81:15; 85:14; 92: 17; 93:2, operators 78:8, 10; 15,17; 157:1,9,15,19;
noted 87:25; 89:1; obtaining 129:23 16,17;96:7,10;97:12; 87:20,22,21;88:7; 101:"; 158:16,23; 161:1,18,20,
100:2,3; 107:8,9; 108:25; 107:3; 196:13, 14 2"; 162:15; 163:3; 165:16;
106:10,13 obvious 18:9,25; 19;7; 109: 14; 110: 11,21; opinion 17:19; 18:14, 1,(; 170:2,20; 172: 12, 13, 18;
notes 193:17 167:12 115:22: 118:7; 119:4; 42:5; 43:2, 3; 44:-1; 50: 14: 173:6; 176:16; 177:1,21.
nothing 25:23; 39:6; obviously 10:1; 21:19; 121:10: 122:20; 123:3; 53:3; 66: 17; 74:2; 77:20; 24; 178:2,7, II, 18,18;
66:20; 80:14; 82:24; 29:20; 53:20; 71:7, 6; 73:5; 124:16; 127:4; 130:24; 78:2;81:21,22;8.1:25; 179:9,10,14,15; 18-1:14,
91:18: 96:2; 97:20; 96:3; 86: 19; 87: 15; 88:6; 96: 11; 135:21; 144:10; 145:2,3; 86:14; 106:18; 111:23; 18,21; 185:2; 188:17, 19;
113:12,23; 120:11; 111 :9; 113:6; 117:11; 146:3, 19; 147:6; 150:25; 121:19; 146:15; 181:12 190:24,25; 191 :3,16,19;
121:25; 129:4; 169:15; 157:12; 185:2; 201:4 161:16,17; 162:10; opinions 40:20 194:14; 195:19, 20; 196:9,
181:18; 167:3; 190:17; occasion 8<i: 10; 99:25; 163:21; 165:1,22; 168:1, 15
191:4; 191:9 106:5; 133:19; 136:12; 9,10,16: 169:9,10; 171:3; opportunity 16:11,12; outdoor 11:2; 24:13,14;
notice 12:9,14; 26:23, 139:16,25; 167:5 173:2,2; 175:17: 177:6,8; 22:8; 35:21; 40:24; 4(,: 10: 28:2
24; 127:25. 25; 148:25; occupants 91:5 178:5; 179:13,21; 182:6: 50:20 outlets 147:22
149:4; 193: 16,20; 194: 14, occupation 98:13; 185:10; 189:19; 190:6; oppose 18:22 outlined 35: 1-1
19.20,23; 195:1,4,5,7 149:23 191 :22.23; 192:2, 17,17; opposed 57:7; 76:8; outreach 99:4
noticed 91:14,16; 106:16 occur 84:23 193:12; 196:11; 201:25 78:23; 89:22: 91:9
one's 109:23 opposIng 25:2; 82: 15 outset 6:13; 7:16
notices 8:1, 3; 193:1,( occurred 180:1 ones 77: I; 78:6; 87:6, 6; opposIte 37:22; 177:2, 3 outside 9:24; 10: 15;
notifIed 59:21;60:6 occurs 135:9 126:20 option 179:3 34: 14; 5,j: 17; 63:9;
notifies 26:25 October 83:13 only 8:15;9:6; 12:11; 184: 17, 19
notify 60:7 off 8:18; 38:4,19; 42:23; 15:11; 16:25; 18: 1; 21: 14; oral 200:20, 24; 201:1, 3, over 11:16; 17:9;33:3;
5
November 39:25; 131:1, 43:23; 56: 17; 72:23; 22:1; 27:10; 28:4; 30:8,16, orange 9<1:15 42:10; 56:9; 61:18; 83: II,
2; 134:9; 148:24 78:20;91:3,15; 111:5; 24,25; 32:2; 33: 1,9, 15; 16:93:16; 112:20; 132:11;
Number 5:12; 12:15, 15, 112:10; 126:24; 133:13; 31:17; 40:16; 73:20; order 26:9; 37:2; 118:6; 150:19; 157:7; 1(,0:8;
U 15,18; 13:21; 18:3; 22:3; 1-19:12,21 i 152: 19; 74:17; 80: 1,8; 91 :11; 92:8; 194:11; 200:3,7,12; 161:6; 177:15; 180:4;
24:6; 29:7; 38:18; 4-1:15; 159:2<1; 161:3,10; 182:8, 93:15; 101:19; 111:17; 201:17,19,21 185: 18: 189:23; 192:8:
46:6,7; 50:5, 6,7; 58:2<1; 15,18; 186:25; 187:21; 122:3; 137:15,20; 139:16; o rde red 200: 13 202:2
59:10,11,13:77:11; 189:22; 201:2 168:<1; 178:25: 199:2 orders 200:11 overrIding 119:25
79:16; 85: 1; 91 :2: 93:3; Off.the-record 38:5,20: open 17:13; 26:16;72:12; ordinance 20:8; 116:1,5; overrule 161: 18
95:8; 100:10; 101:5; 169:11; 200:9 101:7,10; 165:9; 181:7 119:3; 122:21; 125:2 oversees 40: 11
D & D REPORTING SERVICE (813) 468-2002Min.U.Script0 (10) neck - oversees
':::", '.:..:.....:::;";, '\','<i/~;;;:::Y:; ,,'; ;,,', :\~",:,< ,:::i:.", ,::; ..: ':ii;;) '" ';:~'~'~;:::: :',;',':':::...,:::::,iL':,i'?:. :':::.:,</L:,,'>',:',;; /.'ii.:;";'< ',;~~:;\:\;'
i..
AQUA WAVE RENTALS INC. v. FINAL IlIiAlUNG
CLEARWATER PARASAD., INC.ET AL August 5, 1998
..
own 77:20; 79:23; 88:3; 172:7; 196:21 20; 177:14, Hi, 19,2'1; phone 93:3 139:12; 145:23; 1'19:1,7;
111:22; 113:1; 123:20; particular 46: 16; 48:2; 178:18,20; 179:1S; 182:3; photo 1'11:5,12; 1,12:8, 153:5,25; 173: 10; 176: 18;
128:16; 129:16; 170:1 54 :25; 56:8; 65:23; 119:8 185:10; 188:2S; 192:20, 17,19,20; 143:22; 14.1:8, 181;23; 184:3, 14; 193:16
I~ owned 56:10;76:20,22; particularly 27: 1; 85:16; 25; 194:16; 195:15.20,22; 13; 145:2; 167:23, 25 plat 193:17
78:7;80:6; 107:1,1,4; 199:7, 11 197:4; 198:11 photograph 1.10:7; play 20;6; 24;13; 36;9,10;
123:22 parties 5:18; 127:8; percent 17:25; 18:2; 113:2; 145:1; 167:22; 53:2
owner 7:1; 10:20; 22:25; 191:1S;20();6.10, 19 79:11; 104: 1,1.18,20,22; 187: 15 plays 20:3; 166:24
23:15,16,19;56:11; partner 171 :23 105:14, l.i; 112:24,25; photographs 128:23; please 39: 12; 6.1;.1; 81 :2;
152:24; 177:19
107:-1,15; 148:18; 149:3 parts 162: 1 5 percentage 101:21; 140:1,3,10,23; 141:2, 11; II'i:9; 152:19; 161:23,24;
owners 8:3; 13:18,20; 142:25; 167:14, 19; 165:2; 169:21
24:7; 27:1,9;78:15; 92:1; party 7:2, .1; 10:3; 14:2, 103:25; 104:2; lO5:12; 197:21 plenty 35:21; 37:5; 5~: 16;
11;97:4; 148:16; 195:1 112:20; 147:9
112:20; 130:23; 199:3 Pasco 115:20; 116:4 periodic 116:16 Photos 145:20; 15.i:25 55:3; 180:14
owning 129:22 Pass 11:20; 13:9; 17:3,4, permission 78:19; physical 18:9; 121 :6; plus 48:2,1; 54:10; 77:21
owns 112:16 17; 19:15, 18; 25:8; 31: 15; 183:8,25; 184:2,3; 186:21 151 :3 point 6:20; 7:7; 9:6;
32:3,5,8,8,16,22; 33:10, permit 12:1;31:19;37:3; pIck 57:,1; 150:9 13:12; 20:2, 21; 29:7; 36:2;
p 15,18;34:1,4,6,7,10,12, 66:9;73:9,11; 129:23; picking 150:10 44:3; 50:10; 119:20;
.16; 3S:2; 37:12; 40:11,16; 130: 19; 136: 13; 139: 11; picture 141:13; 142:20; 135:21, 23, 23; 155:7;
P-R-O-C-E.E-O-I-N-G-S 42:21; 43: 11; 48:8, 9,12, 162:21; 173:11; 183:12; 143:5,12; l,i4:25; 157:13, 157: 1; 163: 13; 168:8;
18,19,22.25;49:3;51:8; 184:4; 199:19 14,17.17; 158:3,3,8,17, 172:4,21
5:1 52:5,24; 53:23; 54:3, 4,5; permits 65:21 17,21,22; 159:1, 10, 13, pointIng 157:25
pace 180:21; 181;15 55:1,4,12,14,16,22; permitted 53: 19; 55:21; 17,17,18,20; 160:4,7, points 36:3
packed 87: 15; 93: 15 56:1,19;58:11;62:14,15; 118:24; 125:3, 15,22,24 18, 19,20,24; 161:9. 11, Pollee 83: 15; 115: 10;
packet 45:2; 144:25 63:1,10; 67:23,24; 68:6; Permitting 44:9; 47:5, 9 12; 162: 1; ](,8:7, 20; 134:22; 198:4,4
71:17;72:7,14,19;73:15;
Page 23:25; 38:18; 103:9, 75:16; 76:16, 24;77:-1, 4, person 7:5; 11:4; 14:2; 189:11 polley 36:23; 135:6, 1.1;
22,25;104:2,5,13,24; 5,8, 12; 78:5, 22; 79: 1, 3, 27:5; 29:21; 70:24; 74:21; pictured 159:14; 161:25; 178:24; 179:1,7
105:3,5.17,21,22,24; 8; 80:3; 84:4,10; 85:1,4, 78: 17; 100:20; 107:8; 162:2 political 114:22, 22
127:17,21,23; 140:6; 16; 87:11; 89:18; 92:6, 6, 134:17; 177:13,18; 182:8, pictures 155:22; 156:25; populatlon 199:10
141:3; 142:1S, 25; 143:15, 7,8; 96:13; 106:6.21; 14; 185:7; 199: 14 157:2,6; 161:16, 17; portion 57:22; 67: 1 0:
22,23,25; 144:9; 157:12; 116:25; 124:6,9; 130:11; personal 11 :4, 9; 13:8; 162:2,8,9,11.14,14; 147:22; 193:17
158:4, 25 131:5,18; 132:8; 1-14:7; 14:8; 16:21; 17:17,2-1; 168:5; 186:15; 189:13, 17.
pages 144:10 152:9,21; 154:9, 10; 18:4,6,8,11: 23:3; 32:13; 17.24: 190:15 portions 14:21,23;
. ') paid 99:6 155:13,13,17; 180:2, 25; 41:2,1,5,21,24;42:1,4, piece 125:21; 159:22; 127:18
...~...;.
,. position 7:8; 15:6; 22:9;
\'~\~~.. pamphlet 173:23 181:2; 184:9; 190:24; 20,23;43:3,22;18:11,12; 160;2; 170;6,8
191:1,2,9,12,12,13,14; 51:13,15,16,2.-1; 52:2, 8, PIer 39:19 38: 13; 40:4, 7: 65:23;
papers 157:7 192:11; 198:22; 199:1,1, 11,19;53:1,6,8.15,19; pilings 180:8 ,75:13; 115:21; 122:19;
paperwork 175:4 2.-1 S6:11, 25; 57:14,18; 188: 13
parachute 72:13 passed 109:3 58: 10; 63:15; 73:22; Plnel!os 18:21;48:21; possess 25:12
paragraph 67:18; 108:20 passenger 56:15,16 75:18; 76:13.17,22,22; 55:8; 61:16;83:8,13;8,1:1; possible 108: 19
paralegal 171:6 77:2,9.20,21; 78: 15,19; 115:15; 129:15
passengers 57:4 79:3,11,14,15,17,18; place 24:12;90:6; 141:4; possibly 33: 16; 70:4
paraphrase 14:18 past 16:22; 20:1,9; 36: 17, 85:5, IS, 18, 21; 86:10, 14. 172:1; 190:7; 192:21,22; posted 86:19,21;90;21
Parasall 5:7; 6:7; 12: 1; 25; .-18:10; 62:2; 69:7; 22; 87:9,19; 88: 1; 89:5, 9. 197:20 Potential 64:7
31 :10; 36:18; 41:11; 77:22; 80:2; 85:13; 88: 12; 18;91:10;92:1,2,10,12, placed 26:3, 14; 59:18, Potthoff 6: 17; 7: 1 0;
56:16,17,22,23; 57:1; 95:2,4; 139:25; 158:11; 13; 96:7,22; 97: 10; 99: 19, 19 10:20,24; 29:1,12; 46:22;
61:4;69:4;71:9;72:11,22, 172:1,1,2; 181:23; 182:4 22; 100:1,5,7,21; 101:1; places 95:6,7; 162:4; 60:7; 96: 12, 15; 129:6, 12,
25; 73: 18; 74:2; 92:24; patrol 18:22; 55:21; 103:21,22, 2'i; 104: 14,18; 172:13; 182:10; 185:23; 13; 147:20; 151:10;
94:2,7,12;97:16; 120:25; 61:15,21;84:1,8;89:1; 105:9,13,19; 106:2,16, 186:3 152:19; 164:2; 183:12, 21,
139:4; 116:25; 147:4; 98:21,25; 99:24; 100:4; 19,19,25; 107:1.5,19, placing 195:25 25; 186:11; 189;14
157:21; 167:17; 168:24; 101:19; 106:1; 110:7; 22; 108:6; 109: I, 8, 11,24; power 91:9, 11, 12;
169:2; 170:1; 171:11; 197:19 110:9,16; 111:2-1; 116:24; plan 14:21; 155:10; 95:12; 107:22; 112:5;
175:17; 177:14; 179:2,12; patrolled 84:6 117:13,23; 118:17,24; 178:3; 18-1:24 149:20,20
182:11,16; 183:7; 184:20. patrols 31:15; 197:18 123:22,21; 129:20, 24; planners 36:13 powered .-11:6
20; 185:3,4; 188:5, 10, 12 130:19; 131:11, 17; 134:5, Planning 5:24; 7: 18;
parasalllng 72:18; 176:5; pay 30:17; 113:2; 197:1 12; 135:25; 136:14; 11:10.25; 13:2,7; 15:1,4. practice .12:17; 115:8;
183:19 paying 188:23 146;15,23; 147:8; 1-19;9; 6,20; 16:8; 18:25; 22:6, 116:8; 152:21
parasalls 73:23; 75:9; people 10:6; 17:6; 18:11, 150:16; 163:18; 166:2; 10.18,23; 23:8.21; 24:3, practiced 115:8,12
76:17 12,17; 21:25; 22:4; 24:16; 182:5,17; 183:12; 18.-1:7. 5; 25:4, 6,15,24; 26:1; pre.marked 41: 14;
parent's 135:7 31:13; 37:5;5;:11; 56:12; 8; 185:14,20; 186:11; 28:13; 29:13; 30: 11; 31 :1, 102:13; 127:2
Park 68:20, 21; 190:8 59:22; 71:1; 75: 17; 77:10; 187:25; 192:4,10; 193:1; 8,25; 32:7,15,24; 33:8, predIct 89:12
79:23; 81: 17; 85:23; 86:7; 196:14; 199:13,23 21; 34:13; 35:3; 36:11; prefer 104:1
parked 192:13; 198:2 87: 17; 88:5, 11, 14, 16, 16; personally 10:15;46:11; 37:8.21,21; 38:9.14; preliminary 6:12,14;
parking 170:10, 12; 89:7,11; 91:15, 24; 93:22; 76:20; 79:23; 80;6; 87: 16; 43:13;44:4,tl.16;'i6:11.
187: 11; 197:5,6 94:8;97:2; 110:4; 111:17, 106:5; 117:25; 119:16 14;17:8, la, 16;49:8, 15; 9:14
~ part 8:4.9; 11:6,15; 19;8; 20,21; 113:4; 122:9; persons 100:20; 108:23 50:14,21,23;61:6; 66:5, premises 114:17
21: 1; 3-1:21; 41 :18; 14:20; 139:8; 111:17; 146:9, 10, perspective 118:18; 10. II, 18; 67:7; 73:8; prepared 201:3
45:2,10,13;69:2;71:18. 13,24; 152:9, 14; 153:25; 71: 16; 80:22; 81 :5, 6, 8, 9; present 8:12. 20; 12:25;
20; 72:6, 7; 73:4; 99: 18; 154:1; 156:2,5; 160:21; 120:3 115:4,7,16; 116:2, II, 13, 19:5; 24:24; 25: 1; 30:24;
103:9; 106:24; 127:-1,5; 165:18,20; 166:19; 172:9; petition 139:9 21; 117:1; 122:6; 12.-1:17; 34:2.i; 37:8; 43:6; 46: 15;
136:2; 160:3; 162:7: 175:23,25; 176:",5,7,8, Philadelphia 115:7 125:15.17; 127:22; 138:1; 169:6
D & D REPORTING SERVICE (813) 46S.2002Min.U-Scriptcxl (11) own - present
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AQUA WAVE RI~NTALS INC. v.
ci,EARWATER PARASAlL, INC.ET AL
presentation 14:24
presented 7: 18; 12: 12;
15:3.8; 17:20; 21 :9,12;
22:13: 117:1,j, 19; 118:3,
1; 119:9; 121:20; 128:15,
16: 163:17
presontlng 8:6
presently 39:14
president 11,j:15
Presldent.elect 114: 13
press 99:9,11,13
pretty 19:7; 32:3; 46:25;
86:11;93:11,13;9.i:17;
1-10:19; 180:8; 185:25;
187:18
prevent 52:16; 191:19,
25; 192:1,25; 193:2
prevents 191:23
previous 19:20
pride 146:9
primarily 11,j:25; 116:10
primary 115:3,16
printout 193:19
prior 16:20; 25:4; 40:1;
50: 10; 57:22, 2,j, 25; 58:2;
83:14; 115:5; 119:25;
129:22; 136:21; 201 :17
private 36: 12; 56: 1.3;
66:3; 116:8; 170:21
privately 56:10;78:7:
107:4; 113:4
privately-owned 89:24
Pro 115:10
probably 14:10,13;
29: 1 6; 30: 17; 36: 20;
62:16; 67:25; 87:7; 92:1'1,
15;94:5,19,20,22;124:7;
136:21; 155:21; 160:3;
168:2; 177:15; 180:3;
184:19; 192:22; 201:8
problem 9:7; 22: 1 5;
71 :13; 75:19; 78:5; 82:8;
112:25; 194:20; 200:25
problems 29:22,23;
35:14;88:10; 123:19;
196:4
procedures 14: 13;
164: 16
proceed 5:2;7:15
proceeding 5:16; 10:21;
21:18
proceedings 9:24;
200:21; 202:4
process 66:8; 86:20;
125:17; 174:2.i; 175:1
professional 114:18
profIt 183: 1
program 115:4
prohibIt 108:8, 23
prohibited J08: 18
promote 13:16
proof 109:3
proper 6: 16; 32:24; 65:9;
184:5; 191:23
proporly K6:211; J 35: 10;
185:12
propertlos 150:20;
197: 13
property 7:4; 8:3; 11: 14;
13: 18, 20; 26:25; 27:9;
41:14; 56:11; 125:21:
143:9,10,15; 144:22;
145:6; 147:23; 148:18, 19;
1'(9:3; 150:25; 168:17, 19,
23; 170:2, 6,8, 10. 16;
186:22; 187:1,1,8;
189:22; 193:18; 196:17,
17; 197:1,10.24
proposal 31:2, oj; 33:14;
34:24; 36:19
proposed 1-1:9; 15:15;
23:2,25; 24:18;62:18;
120:15; 143:1; 200:7,11;
201:19,21
props 9,j:20
prosecutor 115: 10
prosperity 13: 17
protect 13: 15
protected 7:6; 1-1:4;
18:12; 27:7
Protection 98:19; 107:20
provide 13:15,23; 27:24;
40:20; 42:5; 135: 11;
196:19;202:1
provided 14:11,22;
17:22;43:2; 125:17;
135:10
provides 12:7, 19; 80:20
providing 61:22
provision 194:2-1; 195:5
provisions 12:4.8,24;
13:1; 108:5; 128:2,14
prudent 112:11,12
public 10:8,10; 13:16;
19:9; 22: 14; 42: 12; 56:1;
99:4; 119:24; 120:25;
121:7; 150:24; 151:4;
194:17; 195:5,9; 198:21
publlc's 12:17; 15:17
Publication 127:25
pull 137:16,20; 178:9;
192:20
purchase 130:25
purchased 131:1
purely 29:2,.i
purport 106:2
purpose 19:8.9; 117:3,
5,6
purposes 13:14,15;
127:20; 131:3; 134:1
pursuant 57:18
push 196:15; 198:18
pushed 35:19; 172:9
pushing 21:2J, 22
put 6:13; 9:20; 21 :2;
3'(:13,25; 35:13; 42:23;
54:10; 101:9; 106:22;
136:8; 146: 19; 157:22;
173:18; 174:1; 178:17;
187:15; 189:15; 198:3;
201: 15
puts 195: 1 ~)
pu"lng 173:21
Q
quallfled 78: 15
qualify 13:19; 27:5
Quality 56: 15; 132:24;
139:6; 142:14; 147:14;
172:2,8; 187:23; 190:12;
196:25
quarter 195:19
quickly 11,1:17
quite 42:13; 58:3,3;
66:25: 102:4; 170:22;
172:3; 174:15
R
raIning 140:19
raIse 36:3; 39:3; 82:21;
97:25; 113:20; 129:1;
163:19; 169:12; 201:14
raised 36:4; 118:16;
163: 17
Ramada 165:19; 176:3
ran 94:6.7; 164:5; 170:21
range 42:2
rather 174:1; 192:5
rationale 153:24
re.wrltten 59:2
reach 41:25
read 5:10; 12:8; 173:23
reading 29:14
ready 5:2; 111:2; 128:22
real-13:9; 80:5; 91:22;
93: 15; 95: 13; 179:9
realize 82:6
really 8:11; 21 :3; 33:20;
35:2; 75:18; 79:5; 95:7;
100:17: 107:13: 115:19:
125:19; 167:8; 168:6;
176:22; 191:11
reason J8:1O; 29:15;
31:14;95:24; 105:4;
113:6; 134:2; 138:17;
146:6; 154:8; 182:6
reasonable 112:11, 12
reasons 16:7,24; 17:3;
50:18; 146:3,4; 182:6
rebuUal194:6
recall 43:18; 44:7; 50:24;
58:1; 71:2, 3; 90:15; 121:8
receive 7: 17; 24:19; 50:1,
3; 102:24; 118:25; 184:13
received 8:16; 23:23;
38:3;46:5,8; 59:12, 14;
61:3;78:19; 103:2;
145:19,20; 149:3; 171:16;
193:24; 194:2
lrecently 70: 10; 94: 14, 16
recess 82:5,17; 118:6
o & 0 ImpORTING SERVICE (813) 468.2002Min-U.Scrlptl:lD
". t'
I . ll' l' >: ,. . ~ .... ~: .. ,. , ... I~. L. ,. . ~ .
~ :......'.:1...,:.:.. :"~:'. ::..~I~~H. :~:"
.,.:. :~:.:;i,:..~.:,.i;':'::' >:' ".:.:.;,.~'<<:.~'.:.': ': '::'; :.....:'. ;'.;:. ,.<::;~.: ..{;-; ;......
. ,. . . . .,.. , . .,' ,,' . '.'. ;'. ,'<" >, I, . ~..
rcclplents 193: 19
recltos 2';: 18
recognition 127: 10;
128:9
recognize 90:9; 126:25
rccognlzed 126:9
recognizing 128:13
recommend 25:5;
137:2-i
recommendation 38:22:
43:12.14,18,19,21;'i4.:3.
10, 11; 47:24.25; 48:5, 9;
49:2,5; 50:13. 15;66:19;
70:18; 7,(:17; 80:22; 81:5,
9
recommendations
25:20; 62: 1; 67:6; 74: 15
recommended 18:18;
42:7; 47:21; 62:6; 74:12;
111:12
recommends 16:15
record 5:1, 19;6:3. 13;
7:24; 8:9; 9:21; 18:20;
20:14,17; 22:25; 23:24:
24:4,9; 26:3; 28: 15; 38:4,
6,19,21;41:18;14:21;
-i5:10, 13. 15; 50:8;62:13;
76:9;83:5;98:9; 127:8,11;
128:14; 129:11; 131:3;
140:5; 169:22; 171:13;
193:4; 194:18; 198:10
recorded 8:22; 84:15
records 128: 10
recreation 11:2
recreatl on/e nterta In men
28:3
recreational 105:9, 19;
125:7; 197:12
RECROSS-
EXAMINATION 168:14;
190:21
red 93:1, 2
redirect 80: 16,17; 96:3,
5; 113:13; 126:1,2; 166:9,
11; 189:10,11
redone 180:8
redredged 180:12
reduce 52:18; 111:13
reduced 110: 12
refer 20: 1 6; 51 :12;
128:18; 149:22
reference 154:23; 164:3,
4
referenced 20: 1,1
references 162:10.11;
164:5
referencing 123:6
referral 7:20
referred 6:4; 25:22;
199:22
referring 23:20; 37:20;
38:11,11; 63:5,13; 102:8
refers 195:.1
reflect 25: 10; 128: l'i;
I11NAL HEARING
August 5, 1998
193:5
reflecting 26:5
reflects 26:3
rcfusc 13.1:19.23; 167:13
refused 134:2<1; 167: 11
regard 14:lOj.IO:16;
42:6; 43:3; 47:7,18: 50;14;
51:17: 81:21; 120:18;
121:16
regarding 32: 16; 62:3;
63:3; 80;23; 99:19;
135:17; 150:15
Regional 115:7
registered 18;2,1; -18:20;
55:8; 103: 1 0, 12, 16, 18,
20,22; 104:4
regular 42:9
regulate 61: 11: 127:15
regulated 35:8; 77: 1
regulating 108:5
regulation 65:2. 5
regulations 53:2; 61:13;
17<1:3
regulatory 25:12; 127:18
reiterate 50:9
relate 172:24
related 60:4; 61:14;
67:16.17;96:17;99:16;
118: 12; 201: 16
relating 96:21
relation 61:21; 131:5,6,
18; 136:20; 141:4; 143:2;
166:23; 167:24; 170:7
releases 99:9
relevance 20:6; 50:2,9;
73:13.14; 201:23
relevancy 73: 11
relevant 8:11; l.j: 10,21,
23;20:3,11,18; 189:25
roly 20;9;61;15; 123:4, 12
remainIng 174:9
remember 58:4; 67: 10;
102:23; 123:5; 153;8;
174:21,22
rent 53:10,16; 57:14;
77:10; 88:2; 89:5; 97: 10,
14; 107:9; 111:21,22;
113:7; 131:11; 134:11, 12.
14,19; 13;:5,8,1;;
1-16:20; 147: 10; 167:4,6;
184:7; 186:25; 187:5.7,
12; 188:25; 191:J9;
195:16
Rental 5;6, 22; 11 :3, 8;
1<1:7; 16:21; 24:18; 28:8;
41:1; 52:11,13; 53:1,9;
56:15; 58:10;75:16;77:2;
78:10; 88:15; 89:10, 24;
90: 10, 12; 92: 12; 95:6, 6;
96:7; 112:15: 113:2,4,8;
129:20,22; 147:8; 149:10,
1<1; 165:21
Rentals 10:20,25; 23:20;
57:11, 17; 78:20; 79:23;
88: 11; 90:3, 16; 129: 17;
130:21; 131: 1
(12) presentation - Rentals
,;' t\~,..
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" ...I,I':~II....;'...\:.~..'.:.'::...;...":.,:.,.".,.,.." :,:,:::.' ....",::'::: ;4,,:.. : .,:'".1. ',' : '.,
'" .:'! . ., . : ., .... ,.'>i:"::; , ... :,.',' .f.' :..:::~/:':;'~::::../r:~:;/t:J,!.,
r.: .... ~,.,. .:.":.~.:/::. ....l.:'..J::.. '.> ",.,. ..l...."'...,~...>}..:..I.}...,j.,'.
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AQUA WAVE REN1'ALS INC. v. FINAl. IIEAIUNG
,
CLEARWATER PARAS AIL, INC.E'f AL AUb1USt 5, 1998
.
rented 87:9;8B:l, 1, 17; I responslbl1lty 72:7 rpm's 172:20; 173:2 ':iO: Uti 7,1:21,22; 78: 1-1; self-reporting 10 1 :21
106:19; 107: 1; 112: 19,2,(, responsible 18:22 rulo 9:22; 10:5; 25: 13; 9,1:6; 97:9; 103:5; 127: 17, selling 42:2
25 responsive 25:21 6.1:6; 65: 18 20, 23; )13: 12. J 5,22; send 9:12; 131:20;
~ renter 77: 11; 107: 1 5; rest 169:7,7 rules 9: 18; 65:21; 78:9, 153:22; 160:4; 161:16; 152:14,22,22; 154:14,15;
111:10 restnurant 81:14; 139:22 10; 17.J:3. 12, 16; 175:6 173: 15; 175: 16; 177: 1 ; 182:3; 18'1:12; 202:2
renters 131:19; 133:2 201: 11 sending 15.J:4; 175: 1,4;
restaurants 27:22 run 31:3; 32:17; 31:3,4;
rentrng97:13: 111:1: restrlctod 100: 10 54:17; 75:5;8B:5, 10; Sand 11:17,17,18; 17:9; 181:23; 184:1.1
131:17; 186:13 110:5;131:24,25; 132:1; 63:1;67:25;68:20,21. 23; sense 66;3
rents 7:10; 21:25; 76:21; rosult 18:9 153:15; 15.J:20; 157:21; 69:2; 78:18; 90:7; 121:8; sent 7:20; 44:7; 119:11;
107:8; 186:11 resume 90:22 159:7; 160:9; 162: 12, 15, 131:9.13,15; 132:10; 130:23; 133:16, 20; 138:5;
repeat 95:23; 163:6 rctall 27: 23; 28: I 18; 163:9; 169:2; 171:2,1; 112: II, 13; 152:5; 153:10, 194:14; 196:12
rephrase 64:4 retiring 16:1 180:5; 185:4, 12; 186: 12, 11; 192:5, 11 sentence 67:18; 195:6
replaced 54:8 reversed 22: 19 19; 187:11 sat 33:1; 37:9; 115:23,24 separate 102: 19
running 29:10; 34:14; Saturday ~8:22; 75:23;
report 23:23, 24; 38:10: review 14: 17; 33:4, 21; 36: 18: 54:1; 55:25; 71 :9, 76:10; 79:3; 8'(:18; 94:24; separates 190:14
103:5,9; 10-(:25; 105:6 40:21; 50:20; 60:5; 13; 78:17; 92:21; 134:8; 142:23; 176:21 September 109:2;
reported 101:18,25; 116:15.17; 118:6 153:5; 155:8,8; 157:11, Saturdays 51:9;75:19, 115:14
10-1:6,11 reviewed 42: 13 18; 158: 1, 18,22; 159: 11, 20;76:5; 152:15 sequestration 9:18
" reporter 114:7 reviewing 8:21; 119:10; 15,21; 160:25; 161:12, 18; seriously 146:7
'1.1 saw 137:1
reports 101:20 125:16 J62:22; 170:21; 171:11; serve 5: 16
revoke 31:18 173:17; 175:7; 177:21; saying 76:9; 77:3; 120:3;
represent 28:20; 116: 10 rewritten 67:3 184:20; 185:2; 187:4; 124:24,25; 125:10, 10,19, served 115: 17
representative 10:4,4 ridden 100:2,3; 185:20 188:12,14; 199:8 21; 165:22; 176:6; 180:17; serves 79:9
representing 10:24 runs 29:8; 34:10;48:25; 188:15; 192:13 service 28:1; 196:19
request 22:18;42:10,13, ride 55:4; 133:14; 176:10 56:24; 68:22, 23; 69:4,21; school 1 14:25 services 12:23
15.22,25; 46:13; 17:2; rides 116:20 92:24; 97: 1 6; 139:6; SCHUETT 6:1,1,7,11. serving 198:11
70:12; 179:2 Right 6:7,18;7:14; 11:5; 161: 19 1-1,25; 7:14; 8: 15; 9: 1,5, set 7:1; 14:17; 37:1,2;
requested 16:5,7;46:15, 34: 11,12,12; 36:18; 13; 10:1, 13,16; 19:25; 53:10; 55:21; 59:20;
20; 73:7;76:15 38:25j 42;1; 48:18j 50:24j S 28:19,20;41:9,19; 4.1:20, 78:J4;94:15; J J9:2;
requesting 46:23 54:3,5,24; 56:11; 64:9; 21;45:,1; 63:23,24; 6-(:9, 121:25; 125:2; 126:14;
66:16,23; 67:4,10; 68:11, 11; 67:19; 72:3; 73:11,24; 156:11; 166:24
requests 42:14, 18; 60:3; 21; 69:3, 8; 70:8: 72: 14; S 98:17 74:9;77:16,17;80:14; sets 13:13
70;17 76:18; 81:10; 82:16; 82:1,4,10; 91 :20; 95:18;
/' ~'i') require 7:3; 111:2,2; 86:25; 87:2; 93:4,19; 9.f:l; sofe 31:4,11,16; 32:19; 96;1; 102:10, 15; 109:2J; seven 122:8
151:22 96:25; 101:12; 110:17; 33:14; 36:21; 49:3; 71 :18; 113: 12; 114:3; 117:9,21; several 26:6; ,12: 11; 70;6;
~ ~1<~;~ "j 72:7; 76:1; 86:14; 90:22;
L~,......... required 7:16; 26:8, 23; 111:3.14; 120:22; 122:1; 120: 11; 126:2; 141 :16,22; 75:21;90:1; 106:15;
94:13,17; 133:14; 146:13;
27:1;66:9,10,11;67:16. 128:20; 131:9; 132:14,17; 161:15; 164:13; 179:15; l,j5:15: 151:9; 155:5,6; 110:2; 171:21
17; 100:21; 175:7; 178:25; 133:6; 139:3; ].J2:2, 2, 12; 199:3 157:,1, 10; 163:7,8; 164:1, shall 12:10,16, 19;25:19;
179:1, 5,8: 200;7 143:7, 12, 17; 152: 13.16; safely 112: 17 19,22; 165:3,25: 166:8, 30:2; 195:1,3
requirement 52:10. 25; 153:20,22; 154:18,22; 13: 168:4, 11,15,22; shallow 182:7.9, 13
66:1; 107: 15 155:2,20; 157:21; 158;3; safer 163: 12, 16, 20, 23; 169:1,10,20; 172:23; shape 175:18
159:13,17,23,24; 160:12; 180:20 179:19; 189:12; 190:17;
requirements 15:5, toj 163:22; 168:10, 16, 18; safety 13:7.8,10,16; 193:8, I I; 194:6; 201:2, Shephard 11:13;41:1;
27: 18; 65:9; 110: 10; 169:1,24; 172:1,2; 178:9; 16:4,16.17,24,25; 17:2; 13; 202:2 172:11,11
178:5; 193:2 180:5,6,6; 182:23; 183:1, 19:5,7,9,13;20:23;21:1, science 11-1:22,23 Shephard's 24:12; 41:2,
requires 109:2; 112:13; 5,9; 181:5; 185:5; 186:1. 25; 22:14; 25:9; 26:,1; 29:4, sea 191:4,8 10, 14; 43:23; 52:2; 5<1: 12,
151:24; 179:4 23; 187:8, 14, 18,18; 6,9, 18,20,23; 30: 12, 15, 18; 56:1,5,9,17, 19j
Research 115:5 188:10; 189:1; 190:1,7, 15, 20; 31 :2, 5, 9, 20, 20, SeaDoos 41:7 68:24;73:1;84:11,13,14;
reservation 197:8 16; 194:9; 195:11; 201:24 23; 32:2,3,8; 33:25; seasonal 150:3 86:13,18;87:11.1'1;
reside 129: 13 right-hand 68:8, 14,15 3<1:23; 35:2: 36:19, 25; seasons 150:6 88: 18,25; 89:5; 90:25:
residents) 27:22 rights 183:20,20 40:15,22;48:13,16,17; second 29:12;45:8; 91 :15; 92:18,20.21; 93:3,
residents 13:18,20; rival 22:24 51:5.10,17;52:9,23; 51:11; 116:6; lJ7:17; 8,15.21.25;95:3,4;
53:7,13,20; 56:25;65:9; 142:15,25; 145:3; 152:4; 96:22,25; 97: 11, 17;
43:9; 103:16; 121:8 road 78:9,11; 174:16 67:6; 71:13; 72:16;73:15, 171:12; 176:15 106:7; 131:6,7; 132:3, 14.
resolve 53:12 ROBERT 129:6,12 18; 71:3; 78:9; 81:21; Secondly 17:8 17,21.25; 133:11; 139:7,
Resort 27:19; 34:20; rock 93:5, 24; 91: 1; 8.J:25; 87: 11; 91: 18; Section 6:17; 12:7, 7; 15.16,18; 140:24; 141:1,
75:5; 128:2; 170:2: 178:15 160:13,14; 187:21 100:20: 101:1,3, 5; 25; 142:15.20; 143:8, to,
resort/residential 27:25 Rockaway 62:23 106:20; 119:15, 20,22,21; 13:12,21,22,25; 1<1:10, 17,25; 144:1, 16,21;
15,15,16,19; 19:3; 25:17.
resorts 125:7 rocks 68:18; 154:21,21; 120:4; 122:17, 23; 123:2, 18; 27:20; 29:25; 30:2.9, 1<15:6; 150;18; 151:12;
6,10,11.17,19; 124:2; J 51:2, 9,17.19; 155:10,
respect 35:11; 36:1 I; 156:20; 172:18 134:1; 146:6, Hi, 18; 12: 127:12, 13, 15, 17,21, J2, 14,14,17, ]9,20;
65:21; 117:10; 158:16 role 36: HI, 10, 1-1; 47:7 163:19; 165:10, 14; 24; 128:7,7,8.20 159:2; 162:22; 163:1;
respond 26:12 room 39:2; M:7; 82:3, 20; 171:13,22; 172:6; 173:9. sections 13:23; 31 :22; 164:5; 166:23, 21; 167:24;
Respondent 5:24; 10:2; 97:22,24; 113:17,19; 12; 175:3; 195:17, 18 126:5, 18; 128:6 170:2,3,4,8,9,10; 172:7;
.~ 22:21 126:1; 198:5 sailboats 63:20; 91: J 2 security 110:1'1,15 175: 12,21.22, 23, 23;
respondents 5: 10, 11; rough 179:13 Sailing 39:20 seeing 87:6; lO2:23 176:16,17: 178:11: 180:6;
6:6 roughly 18:1; 106:3 salls 72:13 seeing's 174:14 182:4; 18,1:10; 185:16.19.
response 118: 1 round 150:3,4 seem 117:7 21; 186:22,25; 187:10. 16,
same7:11;8:22;9:4; 23; 188;3; 189:22; 190:1,
responses 38:2 roule 26: 15 14:14; 16:21, 22; 20:24; seemed 119:12; 188:9 13; 191:10; 192;12, 21, 23;
responsibilitIes 115: 16 row 132:20 28: 10; 29: 10, 10; 18:2; scems 86:11; 175:13 195: 17,21,24; 196:21,22;
D & D REPORTING SERVICE (813) 468-2002Min-U.ScriptlXl (13) rented - Shephard's
A.QUA WAVE RENrALS INC. v. FINAL ImAIUNG
CLI!ARWATER PARASAD-, INC.ET AI. August 5, 1998
.
197: 12, 24, 25; 198:6 63:,1; 90:2.1; 118:3 span 181:5,6,13 stated 11 :24; 29: 1 5; subject 50: 1, 11
Shepherd's 179:8 six 27:11; 56:15, Hi; 57:4; speak 10:9, 11; 22;8; 62:17; 133:1 submit 2,1 :9: 25: 1 i
~ Shoraton 11: 17; 63: 1; 85:3; 122:9; 181:'1,6,13; 79: 19; 122:3; 137:9: stotement 9: 16; 22:20; 126:25; 127:5,9; 149;6
78:18 196:5,7; 197:16; 199:9 19.1: 15; 195:9; 199:20 58:7; 141:7; 194:19; submItted 8:9; 11: 12;
sheriff 83: 13; 197: 18 sixth 53: 18 Speoklng 118:4; 194:17; 201:10 40:25; 201:17
Sheriff's 18:21; 22:3: size 87:2; 107:19; 166:16 198: 23 statements 9; 15; 10: 17 submlttlng 126: 1.1
4-1:10;61:16,21;79:7,12; sizes 171:4 special 118:20, 21 Stations 40:8 subsections 14:19
83:8,19; 101 :20 ski 24:18; 26:10; 28:8; specials 142:23 statlstlc-wlse 113:3 subsequently 115:23
shift 196:1,23 62:19;88:13;90:9; 113:1; specific 12:18; 44:9; statistical 99: 18; 101: 17 substantial 12:21; 13:3;
ship 171:2 120:24; 146:19; 1-19:14, 102:13; 176:13 Statistically 112: 19 22:11;28:15;37:15;
Ships 40:7 16,19,19: 173:18; 174:11; specifically 2.1: 17; statistics 17:19,21,24; 119:7,12; 121:22
shore 91:3. 5,16 182:18; 191:25; 195:20 30:13; 31 :21; 33:23; 18:7; 20:8; 32:14,15; suffer 7:5; 14:3; 27:6
shoreline 54:12 skiers 26:7, 13 53:11; 67:8; 84:.1; 85: 13; 35:17; 4.1:10; 76:13; suffIcIent 22: 13; 63: 11
short 82:17 skis 26:18; 51:12, 13,2.1: 92:5; 98:21 102:2,7,13; 103:2.4,8; suggest 7:2; 19:12
shouldn't 30:17,18; 62:7; 88: 11, 17; 90:2; speculation 153:23 104:7,20; 105:11, 15, 17; suggestion 200;6
174:18 112:19; 120:8; 146:20; speed 26:9; 51: 18, 19; 106:3; 113:9 summatles 128:19
149:16; 150:15; 154:22; 52:3; 86:9,15; 100:10; Statute 108:5; 117:3, 5
show 14:25; 15:14; 177:16,25: 178:20; 171:25; 172:5; 174:7; statutes 108:8,23 summary 22:9; 154:12
17:24; 18:7: 23:1; 21:10; 187:22; 192:21; 195:16; 178:8; 199:14 summation 200:21:
26:22; 27:3, 14; 28:5,12; 196: 14 speeds 41 :24 stay 55:2; 131 :24; 201:6
29:12;44:13; 104:20; 133:16: 163:3: 175:25
109:3; 136:8: 138:7: slow 172:1,4; 178:8 spell 98: 15 stayed 143:20 summations 200:20
) slowed 181:8 Sunday -18:22;79:-1;
141:3,24; 142:9; 1-14:15; spelled 98:11 stayIng 86:7
157:11; 158:4; 162:4; slows 150:8 spoke 22:6; 122:12 84:19; 85:23; 94:24;
187:17; 198:1 smack 191:22 spots 182:13 stays 190:8 140:11,11,20; 142:23;
showed 160:8 small 149:20; 173:22 steady 180:21; 181:15 176:21
spread 156:16; 157:9 steer 111:6 Sundays 51 :9; 75:19, 20;
, Showing 186:15; 190;15; smaller 87:2; 100:22 stack 193:22 steering 111:6 76:S. W; 152:15
193:17 smallest 112:6 staff 23:23, 24; 38:22; Sunspree 56:9, 14; 63:2;
shown 161:6 smell 134:20; 167:12 40:21; 60: 12; 7.1: 15; step 33:5 68:7,10;90:12; 162:20
shows 105:23; 113:3; society 109: 10 80:20; 81 :5, 8; 119: 11; stepped 196: 12 Supervisor 44:9; 47:5, 9;
142:5 soda 156:4 127: 12 Steve 44:8; 47:4 60:16,17
....,,:.1.\:) shut 36:24; 179:11,12 solely 27:4 staff's 37:21; 38: 10,14 stili 51:9; 53:3, 12; 54:16; supplemental 122:21
side 10:19; 11:18. 19; solemnly 39:4; 82;22; staffed 177: 15 76:3; 82: 14; 86: 17; support 13:3; 22:12;
......~.::...~:}I 52:4; 63:5, 5,8,8; 68:8, 101:10; 132:1; 144:12;
98:1; 113:21; 129:2; staggering 134:21 28:16
14.15.17,19,20;82:1~ 169:13 stairs 167:9 147:6; 153:1; 156:23; supportcdl~I~1&15
93:3,5;94:2;97:17; 173:20; 182:10, 15;
119:13; 121:24; 132:17; solicitor 115:11 stand 146:12 187:17; 191:9; 195:21 suppose 88:8; 96:20
1-12:12; 1-14:7; 156:9, 14; somebody 33:1;76:20, sland-ups 149:15, 17 sting 198;5 supposed 107:10;
158:8,9, 10, 12; 159:6.8, 21; 78:23; 86:1; 88:13; standard 27:12,13; stipulate 102:10 114: 1.J
9,19,20; 160:12, 14, 18, 89:22; 97: 10. 13, 15; 48:11; 52:25; 119;5; stood 167:18 sure 9:4; 18: 10; 33: 12,
23; 161:7, 10; 164:2; 110:8,16; 111:1; 112:16; 121 :23 stools 166:21 13; 44:23; .J6:25; 60:9;
168:1; 178: 16; 180:5; 167:9; 177:21; 181:18,21; standards 12:5; 19:10; 71:17,18;72:4,6,12;
187:23,23; 191:2, 17; 188:20; 189:2; 191:19 2.J:l;27:11;30:1,1,6,9: stop 88:6,7; 172:1; 80:25; 82:13; 87:5; 96:19;
192:11,12; 198:13, 17; someone 57:8; 113:7; 37:2; 58:6; 74:7; 125:23; 177:8; 192:3 112:9,21; 116:18; 121:10;
201: 12 179:17; \82:12, 18; 128:6 stopped 45:8; 60:9; 133:15; 135:19,22; 160:1;
sign 90:20 191:21 standing 17:10 90:15,18 169:6
sIgn's 142:4 something 19:17;20:15; standpoint 21:'{; 56:25; stopping 88:14 surprised 87: 16
signature 135:7 29: 17; 35:23; 51 :5; 64:3; 199:6,12 stops 69:2,3, 23 surrounding 12:20,22;
signing 20:7 67:11,12;74:14;76:1; Star 115:9 storm I.W:20, 21; 141:8, 15: 18; 19: 14; 30:21;
82: 15; 94:16; 9S:2-1. 2S;
similar 16:20;-12:18; 112:3,1; 120:5; 122:12; start 32:22, 23; 3,l: 17; 9,10; 143:20,21 120:15; 176:3; 193:15
49:7; 154:4,6,7 125:20; 142:24; 183:14; 52:4;65:14;90:19; 146:,1; straight 142:9, 10; 143:2: sustained 12:2; 15:2,7;
similarly 49:14 IM:2.J 172:16,18; 177:12 IS,l: 1 27:15
simple 31:14; 32:4; 81 :3; sometimes 94: 11; 98: 17 started 72:22; 115:21; street 176:3 swear 39:4; 82:22; 98: 1:
95:13;96:10 somewhat 23:1; 121:18; 149:12,21; 173:21 strictly 27:9 113:21; 129:2; 169:13
slmpllst 94:4; 163: 11 IS0:5; 154:4 starting 20:9; 26:15,17: stringent 174:12 swells 156:2-1
simply 73:3 somtlwhere 5:9; 123:5; 68:5 strong 48:24; 75: 17; swerving 108:18
single 145:2 124:8; 193:22; 197:9 storts 67:24;69:20, 22; 77: 12, 22; 78:22,25; 199:6 swlm81:17; 165:20;
stt79:13: 112:4; 116:12; sorry 133:12; 152:18: 135:19: 150:10; 172:16, stronger 54:2,-1 178:17.18; 197:21
117:11; 120:6; 119:17; 164:25 17:190:11 struck 86:2 swimmers 178:12, 14;
166:19 sort 75:5; 99:9 state 11:5;26:13,21; stuck 124:8 196:4
site 23:2; 24:8,12,17; sound 109:23 39:12; 52:22; 53:2; 55:2/J; studied 115:4 swimmIng 56:12;69:10,
\wJ 61:25;65:3,6,11,12; 12,13,15; 81:16,19;86:7,
48:2 sounds 64:3 70:18;98:18; 102:1; studies 25: 19 8; 165:19; 178:17; 196:9,
sits 33:1 south 11:15,18; 54:1;1,; 103:13,14,18; 104:4; stuff 35:8: 88:24; 156: 19; 10
sl"lng 31:1; 115:19; 62:25; 144:4,6; 180:4; 114:20,21,24; 115:1,5; 177: 11 sworn 39:4,9; 82:22;
177:20,22 199:4 123:13; 169:21 I style 5:5 83:2: 98:1,6: 113:21;
situation 33:17,19;34:1; space61:23 state-wldo 110:6 subdivision 116:5 114:1; 129:2,7; 169:13, 18
D & D REPORTING SERVICE (813) 468.2002Min.U-Script@ (14) Shepherd's - sworn
~QUA WAVE RENTALS INC. v. III NAI. IIIiAItI NG
CLEARWATER PARASAn., INC.ET AL August 5, 1998
...
system 53:10; 156:10; 64:14; 82:23; 98:2; 48:3: 58:7; 63:25; 91 :21; 167;6 73: 19; 7'1:7; 76:7; 78: 14;
178:3 113:22; 116:23; 129:3; 114:11,12; 116:24; trying 20:21;72:5;9'1:19; 82:9; 85:8; 91 :3; 92:9;
164:2; 169;1<1 163:25; 161:25: 19'(:12; 95:19 96:22; 112:7,21; 131: 11,
~ T Tow 10:23 200:4,8,13,22 Tuesday 142:22 18; 137:16,21; 138:7;
Thanks 61:10 today's 200: 11; 202:3 turn 61 :23; 103:8; 104:5; 142:3; 146: 12; 150;9, 10;
151:1; 156:2, 11; 160:19;
table 10: 19 themo 28:22,25; 99: 15 togother 49:4; 101: 10; 188:22 165:19,20; 166:6; 167:9;
themselves 67:2; 175; 25 173:23 turned 61:18; Jil7:5
tables 166:22 171:2; 173:13; 1701:21;
talk 35: 1, 6, 7; 36:22; therefore 6: 18; 37: 13; told 46:25; 60: 10; 122:22; twIce 108:22 176:15; 178:9; 179:16,17;
100:18; 154:14; 199:12, 130:9; 137:13; 153:24; two 11:.i; 12:24; 13:1..1; 180:21; 181;16, 16,22;
51:2,15;67:20;69:16; 18 171:20 15:22; 16:20; 27: 10; 188:20; 192:20; 197:8;
76:12,13;82:;,7,13; Ton 170:20,21; 171:2
92:11; 102:5; 1O<i:24; they'll 110:21; 131:24; 38:18j 45:1'J; 79:19; 82;7, 199;8
1-11:2; 170:24; 175:12, 1,1; 173:23; 17-1:17 tons 171:3; 176:17 16; 83: 11,24,25; 85:23; up.front 21:19
178:22 they're 14:14; 20:24; took 118:6; 140:7, 11,25; 91 :23; 93:16,17,24; upclose 162:8
talked 31:22, 23;32:12, 32:20; 36:12; -12:2; 43:10: 167:22.25 116: 14,20; 120:24; 126:5; upheld 49: 17
13; 34:2; 64: 12, 14, 19; 45:25; 53:19; 56:10; 57:9; top 105:24; 111:12; 136:21; 144:10; 162:10; upholds 173:10
66:24; 67:1; 73:18; 71:4, 5; 66:3; 76:19; 78:20; 79:14; 142:17; 152:7; 157:12, 13; 168:11; 179:21; 182:6;
78:17;79:6,12,25;90:18, 86:6; 87:2; 88:6, 8, 8; 158:4.17; 159:1, 17 197: 13 upland 56:10
22; 92:17: 93:12; 96:12, 91:12;95:5;96:20: 104:7; total 18:2; 103:10,21,24; two-minute 82:4 upon 12:11; 15:2,8:
13,19; 110:15; 137:2; i07:9; 112:7, 18; 134:20; 104:3,5,10,14,21,25; two-person 11:9 21:18; 50:22;81:22;
171:19; 175:13: 183:7 145:10; 147:14; 157:25; 166:19 two-prong 88:" 123: 12
171:4,6,18; 175:24;
talking 19:11; 20:25; 176:9; 182:12.18; 185:23; totally 37:22; 134:19; two-sided 38: 15 use 11:1, 11,12; 12:1,6,
31:2; 32:22. 23; 34:17; 190:9; 192:16,23; 197:22 176:24,24 type 34:21; 41:7; 42:14; 10,16,19; 13:9; 14:9;
65:5;70:4,6; 73:15; 92:5, They've 5:8; 30:22; 87:5; totals 105:3 51:13; 78:14; 80:4; 88:23; 15:16; 16:15; 17:16;
20; 93: 19, 21; 94:2; 95:2, 105:2-1; 106:22; 109:4,6. 18;19,23; 20:5,19; 21:2;
2.4; 102:12; 106:3; 90:2; 109:3; 142:21,23; tourist 57:8 22:16; 23:25; 24:18;
108:20; 113:8; 135:20; 145:13; 173:17 tourists 28:1,7; 147:10, 7; 174:16; 195:5 25:13; 26:2; 28:4,5; 30:4;
155:13; 165:7; 168:24; thln,klng 6:23; 33:7; 91 :8; 15; 176:2 types 63:1-1,18; 105:23; 31:17,18,23;37:3;40:25;
]71:22; 173:9; 174:21; 122:13 toward 24:11; 132:3; 150:1 42:19.20;48:21;49:7;
175:20; 176:20; 183:21; third 52:7 141:14,15; 180:25; 192:5; U 51:22; 52:24; 53:14;
191:5 thoroughfaro 17:5 195:21 55:11; 56:6. 7; 57:21, 22;
talks 19:13 though 15:11;29:16; towards 132:17; 142:6; 58:2,5,9; 63:8.11; 65:21;
J''''j-.-~ Tallahassee 98:15; 30:19; 59:3; 110:19; 152:22; 154:2,2 U.S 40:3 66:9; 67:25; 72:25; 73:9;
\~'d) 175:3 155:19; 183:15 Towers 2-1:7; 121:8; Uh-hum 65:17; 69:18 74:16; 75:2; 76:24; 80:23:
tanker 112:5 thought 162:5; 165:9; 132:19,24; 139:8; 142:14 81:6;85:15; 86:14;87:11;
tape 8:16, 17,21; 119: 17; 172:6; 198:8 town 46:20 unanImous 37:10; 99:19: 100:4; 110:9;
thoughts 76:18 tracks 103:5 199:22 118:19,21,23.24; 119:14:
123:12; 202:1 unanimously 26:2; 120:15; 121:4; 124:11, II,
target 79:16 thousand 172:20; 173:2: traffic 17:12; 24:14; 51 :8; 43:22;49:10,16; 137:25 14,21,22; 125:2,3, 11,
targeted 79:16 188:21,21 54:20; 55:7; 63:14; 75:22, unavailable 16:5 24; 128:3; 129: 23; 130: 19;
tasks 67:10,15.16,17 three 54:8; 56:13; 62:21, 23; 108:9; 131:21,23; unbelievable 199:11 134:15; 135:4, 17,25;
taught 114:21,23; 115:1 25;83:14;94:5; 120:9; 132:2; 133:11: 146:21; under 5:9,17;6:17; 10:5; 136:13,14; 137:11;
128:5; 131:25; 161:16; 153:2,3; 156:23; 177;3, 4, 138:15,22,25; 139:11;
taxes 197:2 177:8,15; 199:8 6; 180:20; 181:8,15; 14:6,16; 17:18;.11:6;48:4, 143:1; 145:23; 146:23;
technically 5:9; 6:5; throttle 86: 11; 111:5 184:11; 186:9; 188:7.16; 13;81:7; 104:1; 107:9; 148:4; 178:2; 182:22;
67:24 throughout 55:23; 63: 10 196:1; 199:9 108:2,j, 25; 115:4; 186:5 183:12,24,25; 184:4,13;
television 8:18 thrown 123: 17 trained 110:8 underage 198:11 197:1,3; 199:19
telling 65:14; 124:20 Thursday 142:22 training 107:6,10,11,14; Underneath 132:11; used 17:9; 28: 16; 30:7;
temporary 53:9 111:7,8 113:13; 192:1 53:5;62:24;75:16; 102:4;
ten 74:24; 109:4; 167:20; thus 24:-1; 171:14 transcript 200:13 understands 135:22 108:22; 110:1,2; 112:5;
168:6,7.16 ticketing 89:22 lransverslng 150: 19 understood 56:18 120:16; 157:8; 180:5, 22,
tender 180:19; 181:3 tickets 79:13, 20. 21; Tree 62:2,j Unfortunately 97:8 22; 181 :9,9; 185: 15, 17,
90:16,17 20
term 80:7; 93: 11; 149: 1 6; tide 132:1; 150:25; tremendously 199:1,6 Unlce 10:23 users 107:20
170: 19 152:12; 182:9; 196:18 Trial 171:7 unit 83: 18,21,22; 84: 1 uses 12:22; 19: 15; 27:23;
terminate 174:9 Tiki 111:25; 142:3,6,21; trick 72:5 University 115:2 28: 1; 30;2, B, w; 56:4, J1;
terms 123:16 155:24,25; 162:25; tricky 64:3,8,9 unless 200:19 125:22,23: 164:16
TERRY 98:5, 10 166:13,17,25; 167:2,6; tried 146:24; 147:4; 164:5 unlike 162:8 using 48:25; 86:9; 152:2;
test 175:2 170:11; 197:25 trouble 36:17; 52:14; unnecessarily 108: 12 178:3; 193:1
testifIed 37:6; 39:9; Tim 122;24 77:19,23 unreasonably 108:12 usually 93:14,18; 172:17
58:20; 59:16; 83:2; 98:6; timely 14:17 true 69:22; 97:9; 122:22; unrebutted 24:4
114: 1; 129:7; 164: 11, 16; times 75:18;94:5; 123:1 unregulated 78:3 V
169:18 100:25; 110:2; 171:24; trUly 29:18; 123:18 unsafe 32:5, 9; 33:11;
y testifies 141:21; 163:6 185:3 truth 39:5, 6,6; 71 :2; 75:11,13,15; 137:14;
testify 16:14,23; 17:1". tired 164:25; 197:15 80:25; 82:23,24,24; 98:2. 156:21; 165:17, 17. 18, 21: vacate 114: 17
15; 18:16; 35:12; 82:14 today 5:21;8:25;9:1: 3,3; 113:22,23,23; 129:3, 166:3; 176:25; 188:17 vacation 114:16
testifying 155:2 15:3,9,23; 20:25; 21 :9; 4,4; 169:14, 15,15 up 11:3,6; 24:15; 29:13; valid 28:1.1
testimony 15:24; 16:12; 22:7,25; 26:19; 27:17; try 48:21;81:3;95:24; 32:16; 34:25; 43:8; 53:10; various 17:22; 24:16;
33:2: 39:5: 47: 17; 63:3; 28: 1 6; 30:24; 33: 1; 37:8: 120:6; 153:23; 157:2; 57:4;63:17;72:11,12,21; 118:13; 150:1; 163:23
D & D REPORTING SERVICE (813) 468~2002Min-U-Script$ (15) system - various
. .. . I .'. .. ~, ". j.' ". . ..' ~'.', ::. I. . ' .. .4. ..: . I '. I.. I'. I I; . ~ . :. '. "
AQUA WAVE RENTALS INC. v. FINAL IlEARING
.. CLEARWATER PARASAlL, INC.ET AL August 5, 1998
vast 93:25; 9<1:9 ..-.--~--- ----- ~........'" + --.......---.-'- ---
11;63:10;78:12;89:11; 162:18; 163:9; 174:22; 12 Z
vohlclos 65:2; 88: 1 100:5; 101:8; 120:22; 175:22; 176:1, 10; 177:25 without 7:7; 35:20; 5 I :21;
r1 verbally 47:6 131:25; 136:7; 141:17; wBverunnlng J75:2" 59:11; 102:25; 175: 10;
vorgo 15:25 149:19; 152:11; 170:19; waves 156:19,21,22.23 178:18; 181:15; 199:15 I ZIMMET 5:20,20; 9:3, 7,
. version 102:7 180:14; 182:7,16, 19; wavier 173:2; witness 37: 17; 39: 1,2,7; 8; 10:6, 18,23; 13:22;
187:13; 192:9; 196:18; way 18:6; 34:11; 55:13; 64:5,7; 82:3, 18,20,25; 211: 1,20.21; 21 :7.10,13.
versus 5:7;92:9; 107:1, 197; 18 95:25; 97:22,23,24; 98:4; 16; 28:24; 30:12; 32:4;
21,22 water-borne 199:14 56:9; 59:2; 66:21; 68:2<f; 35:5; 37:17, 20; 38:8,22;
vosseI17:25; 41 :5, 8; 85:7; 91:4,7;99:12; 113:17,18,19,24; 126:4;
water-skIIng 183:20 115: 24; 126:9; 133: 14, 22; 128:23; 129:5; 168:10; 39: 11;-11 :16,20; 44: 18,
56: 16,17; 57:9; 76:23; watorcra" 15:9; 17:17, 134:21; 114:3; 152:2,4; 169:9,10,16 23; 45:8, 17,20,24; 46:2,
100:22,23; 108:9, 11,13; 24; J8:5, 6; 23:3; 32: 13; 153:2; 154: 14; 159:24; witnesses 9:18,23,25; 9; 49:19, 22;50:4,12;
109:4,6,7; 111:6,25; 58: 13;61:5; 71:24; 73:10;
112:6; 174:9 41:2,4,5,21; 12:1,4,21, 161 :3; 165: 19,20; 175: 18; 10:7,12,15; 169:9 77:14;80:16,18; 81:14,
vessols 18:13,22; 51: 18; 23;43:22;48:11,12; 176:21; li7:1,2,3; wondering 37:24 2.(; 82:2, 9; 102:21;
63:18;65:6; 103:12; 51 :13,15,16,25; 52:2,8, 181:17; 190:10,11; 191:3; wood 171:15,16 114:16; 116:10; 117:4, 16;
11; 53:6,9, 15,19; 56:14, 196:15
105:25; 10B:15; 127:19; 25; 57:18; 63:15; 73:22; word 120: 1 122:2; 125:25; 126:5, 11,
150:1; 191:22, 23 74:4;75:18;76:12,13,17, ways 100:7,11; 116:14 words 125:13: 186:17 17, 20; 127:.1; 128: 11, 18;
vIce 116:21 22; 77:2, 9, 22; 78:20; wear 100:25 work 36:6; 82:1<i; 85:7; 148:9; 155:4
video 110; 17,21 79:11,15,18;85:5,19,25; weather 140:18 99:12; 116:7; 152:7; Zlnober 10:23
videotape 8: 17; 50:23; 86: 15; 87: J 0; 89:9,9, 18, weaving 108:8 181:9; 189:22 zone 26:8; 51: 16. 19, 20,
119:17 21,24,24; 91:10; 92:10; Wednesday 75:24; workday 200:18 23,23: 52:4, G; 55:21,22;
view 99:25 96:8,8,23; 97:10; 99:19, 142:22 worked 116:1; 170:20 60:3;67:20;69:16,19;
20,21; 100:5,8,15,21; week 16:1: 59:21; 75:13; 70:10,14,19,25;76:24;
viewed 50:23 101:1: 103:22:,24; 104:6, 76:8; 84:17 working 115:12, 16; 90:18; 125:8; 135:21, 24;
violate 31:12 15,19,21; 105:1,2,9,13, weekend 84:11; 94:10, 137:14; 152:20; 177:16, 153:J8; 171:20, 21; 178:8
visibility 108:15 19; 107:1,2,3,5,19,22; 12,24; 140:1; 179:13; 17; 178:21 zoned 125:6,7
vision 184:17,19 108:6; 109:1,8,12,24,25; 186:7; 188:20; 200:16 works 94:12; 171:6; zones 42:14; 55:24;
visual 8:23 110:9, 16; 111 :24; 117: 14, weekends 48:23; 76:8; 185:11 61:24:71:22
volume 63:13;87:13,1-1; 23; 118:24; 123:22,21: 84:23;86:14;87:15; worried 178:19 Zoning 5:25: 7: 18: 11: 10,
96:8, 11 129:21,24; 130:20; 106:7, 10; 133:4, 5,9,10; write 79:13; 80:21 25; 13:2,7; 15:1,4,7,21;
volunteered 116: 1<1 131:17; 133:15; 134:5,12; 139:23; 185:16; 186:1; writing 50:25;201:15 16:8; 18:25; 22:6, II. 19,
135:17; 136:1,14; 146:23; 197:3; 199:11 23; 23:8, 22; 24:5; 25:5. 6,
. '<'I") vote 26: 1 147:9; 149;10, 14; 150:16; weeks 136:21 written 25:2; 36: 15; 14,15,24,25; 26:1; 27:18;
voted 25:5; 122:9: 163:18; 166:2; 167:6; welfare 12: 17; 13: 18; 128:19.19; 149;6; 200:20, 28:13: 29:13;30:11; 31:1,
. "_.,~:. rI 137:25; 199;22 182:5,17; 183:13; 185:15, 24.25; 201:1 8,25; 32:7,15,25; 33:8,
voters -18:20 17,20; 186:11; 188:1; 15:17; 19:12, 12; 27:12, 22; 34:14; 35:3; 36:11;
192:4,10; 193:1; 199:13, 13; 119:24; 120:1; 123:11 X 37:9,22; ,j3:13; 4'1:4, 8,
W 23 weren't J 22: 11 16; 46: J I. 14; 47:8.10, ] 6;
watercrafts 11 :1,9; 14:8; west 34:7; 52:4; 68:3,6; 49:8,15; 50:14, 21. 24;
16:21; 18:8, 11;<11:24; 70:7,8,15; 93:7, 13; 94:2; X 148:1 61:6;66:5,10,11,18;
wade 137:18; 196:10,10 52:19; 53:1; 57:14; 58:10: 121:10,11; 132:18; 67:7;73:8:74: 16; 80:22;
walt 9:23; 17:13; 54:23 79:3, 14, 17; 85: J 6, 22; 142:18; 158:1,2; 159:8.9; y 81:5,6,8,9; 115:17, 18,
waiting 10:15; 177:23; 86:10,22;87:19;88:1; 170:9, 15; 176:23,25; 25;116:2,4,11,13,19,
89:6; 99:22; 100; 1; 190:3; 191:3,5; 195:21 21; 117:1; 119:23; 121:4;
199:16 103:10.21: 104:21; westbound 142:16.]7 yard 141:25; 142:21; 122:6; 124:10, 17,21;
waiver 62:2] 106:16,19,19; 116:24; Western 132:22,23 196:22 125:15,18,21; 127:22;
wake 42:11: 51:20,21; 118:17; 131:11; 113:19; What's 105:23; 132:16; yards 69:20; 70: 1,4,5.6, 128:1.2; 138:1; 139:12;
52:4,6; 55:21, 22, 24; 146: 16; 184:7,9 166:16; 167:17 15,19; 131:8; 153:18; 145:23; 147:22; 149:1,7;
60:3; 61 :24; 67:20; 69: 16, waters 62:7; 101:10 whenever 188: 15 172:19; 180:4; 190:25; 173:11; 184:3; 193:16;
19; 70:25; 71 :22; 76:24; waterway 11 :23; 152:23; wherever 55:4; 185:23 191: 1-1,16,17 195:5
86;17;90:20; 171:20, 21; Yeah 65: 19
172: 15 186:6 whichever 35:9; 190:6
wakes 86:1.5;92:12; \\!stcrways 40: 17; whole 13:14; 24:17; 39:6; year 62:2; 80:2, 10;
100:9; 108:11,16; 174:5 127: 16, 18 63: 12; 69: 1<1; 82:2<1; 85:25; 109: 13.1-1, 14,15;
Wave 5:6,22; 10:20,24; 115:1,8,11; 116:19,20;
walk 150:24; 158:11; 23:20; 57:11,17; 129:]7; 96: 13; 98:3; 113:23; 130:16; 150:3,4,7; 171:12
173:11,13; 197:5 131: 1 129:4; 154:10; 169:15; years 23:5; 33:3; 40:7,
walking 145:10; 150:19; 177:17; 190:2 14; 54:9; 58:3; 61:8; 77:21;
wsverunncr 33: 18; 42:3; wife 171 :5, 6
151:4 65:10; 80:5,6,8; 86:2; 83:11,14,2<1,25; 98:24;
walkway 170:12 90:7; 92:3; 120:24; William 11:13; 15:2<1; 99:21; 101:8; 106:2,8;
wall 191:8 129:20; 130:11,24; 135:6; 39:8,13 109:16; 114:21; 115:24;
wlillls 191:4 173:8,18; 174:4; 175:7; willing 102: 10 116:16,20; 124:7; 135:5,
wants 34:3,3;35:7,25; 176:2, 11 wish 9: 15, 17; 195:8; 7; 170:22; 172:21; 181:9;
107:7: 113:7 waverunners 7:10; 34:3, 200:19; 201:6 196:6,7; 197:16; 198:25
\j warnings 79;10: 118:13 18,21; 41 :7; 64:1<1, 19; wishes 147:6 yellow 142:3
Warrant <10:6 65: 15; 74:25; 75:9, 12; within 26:22;3-1:1; 51:19; you-all 30;5; 117: 15;
76:1-1,18;86:5;91:13; 55:2; 56: 13; 65: 1; 71 :21; 151:25
waste 173:4 I
92:11; 93:18; 9<1:6,23; 80: 10; 117:3; 120:9; younger 109:10
watch 10:10; 110;]9 95:12,15,15; 120:8; 123:10; ] 24:25; 125:24; yours 73:3; 89;4; 127:4,
water 26:16; 54:16; 55:3, 131:25; 156:18; 161:24; 174:6,6; 194:11; 200:3,8, 5;165:5,15
D & D REPORTING SERVICE (813) 468~2002Min~U.Script0 (16) vast - Zoning
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