09-11305-DD Criminal Prosecution circ

8/9/2019 09-11305-DD Criminal Prosecution circ

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________

Appeal No. 09-11305-DD

_________________________

D. C. Docket No. 09-0041-CV-FTM-UA[99]-TBM

JENNIFER FRANKLIN PRESCOTT, et al.,

Plaintiff-Appellants,

versus

RICHARD A. LAZZARA, et al.

Defendant-Appellees.

__________________________________________

On Appeal from the U.S. District Court

for the Middle District of Florida, Fort Myers Division

___________________________________________

EMERGENCY MOTION FOR CRIMINAL PROSECUTION OF THE 11TH

CIRCUIT JUDGES WHO CONCEALED THE INVALIDITY OFEMINENT

DOMAINFRAUD-SCHEME O.R.569/875 AND EXTENDED IT

EMERGENCY MOTION FOR RECUSAL OF ENTIRE CIRCUIT AND

INVALIDATION OF CONFISCATORY O.R.569/875 BASED ON CRIMES

OF FALSE PRETENSES, DELIBERATE DEPRIVATIONS, AND FRAUD

NOTICE OF FRAUDULENT 04/21/09 COURT OPINION

(April 22, 2009)

JENNIFER FRANKLIN PRESCOTT, AND

DR. JORG BUSSE, Appellants,pro se

P.O. Box 7561, Naples, FL 34101-7561

T: 239-595-7074; E-mail: [email protected]


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CONCESSIONS OF OWNERSHIP OF CONST.-PROTECTED LANDS

1. Here, it is uncontroverted that Appellants are the exclusive legal record

owners of riparian Gulf-front subject property [PID 12-44-20-01-

00015.015A]. See concessions in 11th

Circuit Opinions.

LEE COUNTY LACKEDEMINENT DOMAINPOWER

2. The Federal Courts concealed that Lee County had no conferred eminent

domain power. The 11th

Circuit concocted:

Florida provides him [Appellant] inverse condemnation. Opinion, p.8.

The Appellants evidenced that any condemnation under color of eminent

domain fraud-scheme was factually and legally impossible. The 11th

Circuit

concocted 200 Acres to deceive the public and conceal the absence of any

legal description and ascertainable boundaries in O.R.569/875.

ABSENT A LEGAL DESCRIPTION CONDEMNATIONWAS IMPOSSIBLE

3. In the prima facieabsence of any legal description, ascertainable boundaries,

public purpose/use, necessity, any condemnation of Appellants private lands in

private undedicated Cayo Costa was impossible and prohibited. The Federal

Courts concealed that unauthorized and unexecuted O.R.569/875 is an

eminent domainfraud-scheme and unenforceable as a matter of law.1

1 For the different Constitutional considerations involved in attacks for'vagueness' and for 'overbreadth'

see Keyishian v. Board of Regents, 385 U.S. 589, 603-604, 608-610, 87 S.Ct. 675, 683, 684, 686-687, 17

L.Ed.2d 629.


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THE COURT CONCEALED INDISPUTABLE JURISDICTION FOR BRIBES

4. The Federal Courts concealed that Appellants claims met the threshold

jurisdictional requirements of 28 U.S.C. 1343(3)2

for state deprivations,

because it is well established that "where the complaint, as here, is so drawn as

to seek recovery directly under the Constitution or laws of the United States

[here 4th

, 14th

, 1st, 7

th, and 5

thAmendments], the Federal court ... must

entertain the suit." Bell v. Hood, 327 U.S. 678, 681-82, 66 S.Ct. 773, 775-76,

90 L.Ed. 939(1946); Hagans v. Lavine, 415 U.S. 528, 538-39, 94 S.Ct. 1372,

1379-80, 39 L.Ed.2d 577(1974); Silva v. Vowell, 621 F.2d 640, 645-46(5th

Cir.

1980), cert. denied, 449 U.S. 1125, 101 S.Ct. 941 (1981); Southpark Square

Ltd. v. City of Jackson, 565 F.2d 338, 341(5th

Cir.1977).

DELIBERATE DEPRIVATIONS OF PATENTLY CLEAR JURISDICTION

5. [In 1875 Congress enlarged Federaljurisdiction by authorizing the 'Federal

question' jurisdiction presently contained in 28 U.S.C. 1331. See 18 Stat. 470.

The Supreme Court reviewed the history in Zwickler v. Koota, 389 U.S. 241,

245-248, 88 S.Ct. 391, 393-395, 19 L.Ed.2d 444. The Act of March 3, 1875,

was the principal '* * * measure of the broadeningFederaldomain in the area

ofindividual rights,' McNeese v. Board of Education, etc., 373 U.S. 668, 673,

83 S.Ct. 1433, 1436, 10 L.Ed.2d 622. By that statute '* * * Congress gave the

Federal courts the vast range of power which had lain dormant in the

Constitution since 1789. These courts ceased to be restricted tribunals of fair

dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the

2 28 U.S.C. 1343 provides: 'The district courts shall have original jurisdiction of any civil action

authorized by law to be commenced by any person: * * * (3) To redress the deprivation, under color of

any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured

by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens

or of all persons within the jurisdiction of the United States.'


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laws, and treaties of the United States.' (Emphasis added.) Frankfurter &

Landis, The Business of the Supreme Court: A Study in the Federal Judicial

System, 65. Indeed, even before the 1875 Act, Congress, in the Civil Rights Act

of 1871, subjected to suit, '(e)very person who, under color of any statute * * *

subjects, or causes to be subjected, any citizen of the United States or other

person * * * to the deprivation of any rights * * * secured by the Constitution

and laws * * *,' 42 U.S.C. 1983; and gave the district courts 'original

jurisdiction' of actions '(t)o redress the deprivation, under color of any State

law * * * of any right * * * secured by the Constitution * * *.' 28 U.S.C.

1343(3).] In conclusion, the Federal Court criminally concealedindisputable

Federaljurisdiction in exchange for Appellees bribes and kickbacks.

THE FEDERAL COURTS FABRICATED FOR BRIBES

6. The Court fabricated that Appellants suit is really an inverse condemnation

action under state law and that the Federal issues raised are merely "lurking in

the background." Johnston v. Byrd, 354 F.2d 982, 984(5th

Cir.1965). This

argument is without merit, because the Courts now conceded that Appellants

have flatly alleged that an unconstitutional temporary taking of their

property has occurred. Whatever rights Appellants may have under state law, it

is obvious that the Federal Constitution protects them from official takings of

their property forpublic use without just compensation. Webb's Fab. Pharm.,

Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358(1980).

CONDEMNATIONWAS EXPRESSLY PROHIBITED

7. Here, private use was expresslyprohibited, and public use was legally and

factually impossible, whetther with or without compensation. Appellants

Constitutional claims in this case are "not merely a background issue but


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instead constitute(s) not only the gist but the whole foreground of the lawsuit."

Creel v. City of Atlanta, 399 F.2d 777, 778(5th

Cir.1968).

THE COURTS CONCEALED PROHIBITED PRIVATE USE

8. The Supreme Court has repeatedly stated that "one person's property may not be

taken for the benefit of another private person without a justifying public

purpose, even though compensation be paid." Thompson v. Consolidated Gas

Corp., 300 U.S. 55, 80, 57 S.Ct. 364, 376, 81 L.Ed. 510(1937); Cincinnati v.

Vester, 281 U.S. 439, 447, 50 S.Ct. 360, 362, 74 L.Ed. 950(1930); Madisonville

Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 251-252, 25 S.Ct. 251,

255-256, 49 L.Ed. 462(1905); Fallbrook Irrigation District v. Bradley, 164 U.S.

112, 159, 17 S.Ct. 56, 63, 41 L.Ed. 369(1896). Thus, in Missouri Pacific R. Co.

v. Nebraska, 164 U.S. 403, 17 S.Ct. 130, 41 L.Ed. 489(1896), where the "order

in question was not, and was not claimed to be, . . . a taking ofprivateproperty

for apublic use under the right ofeminent domain," id., at 416, at 135(emphasis

added), the Court invalidated a compensated taking of property for lack of a

justifying public purpose. Here, the Federal Courts concealed the lack of a

justifyingpublic purpose and the impossibility of any eminent domain power.

CONCEALMENT OF PROCEDURAL DUE PROCESS VIOLATIONS

9. Procedural due process requires notice and an opportunity to be heard before

any governmental deprivation of a property interest. Donaldson v. Clark, 819


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F.2d 1551, 1558(11th

Cir.1987)(en banc)(citing Boddie v. Connecticut, 401

U.S. 371, 378-79, 91 S.Ct. 780, 786, 28 L.Ed.2d 113(1971). Thus, to determine

if a procedural due process violation occurred in this case, Federal Courts had

to resolve: (1) whether Appellants had a Constitutionally-protected property

interest in their lands; (2) whether they were deprived of that interest; and (3)

if they were deprived of a Constitutionally-protected property interest,

whether Appellees failed to use Constitutionally sufficient procedures before

that deprivation occurred. Kentucky Dept. of Corr. v. Thompson, 490 U.S.

454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506(1989); Logan v. Zimmerman

Brush Co., 455 U.S. 422, 432-33, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265(1982).

(1) The 11th

Circuit conceded that Appellants are exclusive record owners who

had Constitutionally-protected interests in theirGulf-front lands.

(2) Here, the Appellees deliberately deprived the Appellants of said interest.

Eminent domain and/or any condemnation, whether director inverse, for

private use were unavailable to Lee County. The Appellees concealed that

condemnation [inverse and/or direct] was unavailable. Lee Countys

eminent domainfraud-scheme O.R.569/875 invoked Federal jurisdiction.

(3) On its face, O.R.569/875 was not a Constitutionally sufficient procedure,

but an admittedly unsigned/unexecutedeminent domainfraud-scheme.

CONCEALMENT OF SUBSTANTIVE DUE PROCESS VIOLATIONS

10. The Due Process Clause of the 14th

Amendment provides "nor shall any State

deprive any person of life, liberty, or property, without due process of law."


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U.S. Const. Amend. XIV, Sec. 1. The Supreme Court's interpretation of this

clause explicates that the amendment provides two different kinds of

Constitutional protection: procedural due process and substantive due process.

A violation of either of these kinds of protection may form the basis for a suit

under section 1983. Id.1. The substantive component of the Due Process

Clause protects those rights that are "fundamental. Appellants have a

fundamentalConstitutionally-protected right to own their lands and exclude

the government. Here, the Federal Courts conspired to conceal Appellants

said rights directly under the 14th

, 4th

, 5th

, 1st, and 7

thAmendments forbribes.

THE COURTS CONCEALED DIRECT APPEAL FROM CRIMES

11. Title 28 U.S.C. 636(c)(3) provides that "an aggrieved party may appeal

directly to the appropriate U.S. court of appeals from the [fraudulent]

judgment of the magistrate in the same manner as an appeal from any other

judgment of a district court."3

The Courts concealed Appellants direct appeal

from the crimes [e.g., conspiracy, false pretenses, fraud, misprision of a

felony, misrepresentation] of corrupt Appellee Judges Pizzo, Lazzara, Steele,

Poster Chappell]. The District Court conspired not to file and wrongfully

reject Appellants pleadings under false pretenses of, e.g., frivolity,

3 E.g., Lee County had appealed directly to the 11th Circuit, pursuant to 28 U.S.C. Sec. 636(c)(3). The

11th Circuit reversed the magistrate judge's order, Reahard v. Lee County, 968 F.2d 1131, 1136 (11th

Cir.1992), and held that the magistrate judge had misapplied the test forregulatory takings.


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vexatiousness, failure to state a claim. The Federal Courts wrongfully

sanctioned Appellants to obstruct justice and prevent them from blowing the

whistle on said crimes of, e.g., false pretenses and deliberate deprivations.

INVALID O.R.569/875 EFFECTED AN UNCONST. TEMPORARY TAKING

12. Here, sham land claim O.R.569/875 was invalid and could not effect a

permanent taking. Eminent domain fraud-scheme O.R.569/875 admittedly

and concededly effected an unconstitutional temporary taking, because

eminent domain was expresslyprohibited here under Floridas and the Federal

Constitutions. Thestate eminent domain issues invokedFederaljurisdiction.

CONSPIRACY TO MISREPRESENT THE DEPRIVED LAND INTERESTS

13. The Supreme Court has specifically held that "a causeof action is a species of

property protected by the 14th

Amendment's Due Process Clause." Logan v.

Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1154, 71 L.Ed.2d

265(1982). Tulsa Collection Services v. Pope, 485 U.S. 478, 485-86, 108 S.Ct.

1340, 1345, 99 L.Ed.2d 565(1988). Here, Appellants have a Constitutionally-

protected property interest in their lands, which the Appellees deliberately

deprived them of under false pretenses of eminent domain fraud-scheme

O.R.569/875. Here, the Federal Courts conspired to conceal that Appellees


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impaired Appellants fundamental Constitutionally-protected property

interests in theirriparianGulf-frontlands and private easements.4

OBSTRUCTION OF INQUIRY AND DISCOVERY TO CONCEAL

14. The District Court erred in refusing to compel responses to Appellants

discovery requests. Appellants proved an abuse of discretion and explained

how the responses would have created a genuine issue of material fact and

further exposed Appellees crimes of, e.g., false pretenses, deliberate

deprivations, and fraud. Appellants had validly stated their claims under

1983, 1985 and (1) alleged violations of their rights secured by the Constitution

and laws of the United States and (2) proved that the alleged deprivations were

deliberately committed by officials and judges acting under color offictititous

state law and fraud-scheme O.R.569/875. A local government entity may be

held liable under 1983 forConstitutional violations committed pursuant to a

governmental policy or custom such as here said extortion and fraud-scheme.

Monell v. Dept. of Soc. Servs. of New York,436 U.S. 658(1978).

OBSTRUCTION OFJUSTADJUDICATION

15. The Federal Courts conspired to ignore the factual question whether the

County unconstitutionally and temporarily expropriated/confiscated/took

Appellants private lands [PID 12-44-20-01-00015.015A] for private rather

4 The 11th Circuit and Florida courts held that even a mortgage is a Constitutionally-protected propertyinterest. Sarasota County v. Andrews, 573 So.2d 113(Fla. 2d DCA 1991).


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than forpublic use. The District Court conspired to refuse to act as would a

court of the State in applying to the facts of this case the settled state policy that

a County may not take a private citizen's land under the State's power of

eminent domain except forpublic use. Here in exchange for Appellees bribes,

the Federal Courts conspired to conceal the invalidity of eminent domain

fraud-scheme O.R.569/875 and extend said fraudunder false pretenses of,

e.g., frivolity and sanctions. The Federal Courts had a duty to invalidate

O.R.569/875 on the grounds that the conceded unconstitutional temporary

taking was invalid and that any condemnation was impossible. That which

was never legally described in invalid O.R.569/875 could not be confiscated.

THE COURTS CONSPIRED TO CONCEAL CRIMES

16. The Federal Courts conspired to conceal the impropriety and invalidity of

said eminent domainfraud-scheme and forgery, which admittedly was never

signedand executedby Lee County. Here, "the naked question, uncomplicated

by [ambiguous language], is whetherunexecuted fraud-scheme O.R.569/875

[which, e.g., lacks a legal description, public purpose/use, necessity, seal,

resolution number, names of any legislator] on its face is unconstitutional."

THE COURTS CONCEALED EQUAL PROTECTION RIGHTS

17. The Appellants filed their actions under42 U.S.C. 1983, 1985 proving that

Lee County, inter alia, violated their equal-protection rights by


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removing/eliminating the cloud of eminent domain fraud-scheme

O.R.569/875. The Federal Courts conspired to conceal that Appellants had the

same equal rights of Alice M. S. Robinson pursuant to Lee County Blue Sheet

980206 and O.R.2967/1084-1090. Said Courts knew that Lee Countys publicly

recorded removal of any cloudfrom O.R.569/875 exposed theircrimes.

THE FEDERAL COURTS WERE OBJECTIVELY BIASED

18. The Appellants proved that the Defendant corrupt Federal Judges were biased.

The legal standard to establishjudicial bias requires the facts to be such as would

convince a reasonable person that bias existed. Here, no reasonable person could

have possibly concluded that fraud-scheme O.R.569/875 was a legislative

act/resolution, because said sham claim was prima facie

defective/unconstitutional and neverexecutedby Lee County. Here, a reasonable

person knew that the 11th Circuit is reportedly corrupt, because it accepts bribes

for fixing cases and conceals public record evidence. No reasonable person can

trust the 11th Circuit, because it fabricated that Appellants did notpursue state

remedies even though the Defendant corrupt Federal Judges themselves removed

Appellants State action to the District Court. The 11th Circuit engages in crimes

of, e.g., false pretenses, deliberate deprivations, misrepresentation, fraud, and

racketeering. It conspired to extend said fraud-scheme under color of eminent

domain forgery O.R.569/875 which is devoid of any ascertainable boundaries.

The 11th Circuit knew that here it was as if O.R.569/875 had never existed. Here,


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the Appellants presented self-authenticating public-record evidence, and the

facts indisputably indicated, that the corrupt Judges were biased.

EMINENT DOMAINBUREAU CONTROVERTED THE 11TH CIRCUIT

19. The Eminent Domain Bureau, Gen. Civil Litigation Division, of the Florida

Attorney Generals Office, was established to provide legal resources for

governmental agencies considering exercising eminent domain to acquire property

forpublic use. Here, the Federal Courts concealed that said Bureau established

that Lee County had no condemnation power to confiscate private property for a

private purpose, whether with or without the payment of full compensation for the

uncertain lands illegally claimed in fraud-scheme O.R.569/875. Here, the

Federal Courts conspired to conceal said Bureaus legal advice on legal

requirements for proper exercise ofeminent domain.

CONDEMNATIONFRAUD AND CRIMES

20. Appellants blew the whistle on Appellees criminal eminent domain fraud-

scheme O.R.569/875. Here, there was a history ofbribery and fraud. Plaintiff-

Appellants based the evidence of the pattern of racketeering activity on letters

mailed by the Appellee Officials. Said letters constituted acts ofmail fraud. The

letters and Court opinions contained fraudulent statements and furthered said

eminent domainfraud-scheme. Here, the Federal Courts engaged in a scheme to

defraud Plaintiff-Appellants through shameminent domain claims. Absent any


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legal description and ascertainable boundaries, the Courts Opinions furthered

said fraud-scheme and were sufficient to constitute mail fraud:

Under Florida law, counties can exercise eminent domain over any land

See sham 03/05/2009 Court Opinion.

21. Appellants had sufficiently alleged a pattern on the basis of the mailings on the

public record. Appellants proved an ongoing scheme to use forged eminent

domainclaim O.R.569/875 for wrongful purposes. Said mailings in the public

domain were part of that ongoing fraud-scheme. The Court concealed that Lee

County had removed the fictitiouscloudof O.R.569/875 pursuant to Blue Sheet

980206 and O.R.2967/1084-1090. See also 1961(1). Here, Appellants lost

property value by reason of said eminent domain fraud-scheme. Appellants

evidenced a pattern ofracketeering activity for decades. Here, the officials have

had a history of engaging in this type ofcriminal behavior.

22. Appellants RICO claim was aided by acts beyond mail and wire fraud. Here,

officials threatened Appellants unless they cooperated with said condemnation

fraud-scheme. Officials threatened, e.g., suspension of Appellants drivers

license, fires and/or arson, destruction and seizure of Appellants property,

deliberate deprivations of Appellants immigration privileges. Such criminal

activity constituted extortion under 18 U.S.C. 1951. The continual threats,

sanctions, rejection of Appellants pleadings, and false pretenses of fraud-

scheme O.R.569/875 constituted blatant extortion. Here, Appellants RICO


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claims based on eminent domainfraud-scheme O.R.569/875 arose out of a pattern

ofextortion and bribery. The Appellants seek civil and criminal prosecution of

the Defendant-Appellee Officials and Judges and injunctive relief from eminent

domain fraud-scheme O.R.569/875. The enforcement of fictitious and non-

ascertainable boundaries is an emergency and crime, which this Court has been

extending in exchange for Appellees bribes.

WHEREFORE, Appellants demand based on publicly recorded and self-

authenticating extortion and fraud-scheme O.R.569/875

1. An Orderdirecting the Clerk to forward a copy ofeminent domainfraud-scheme

O.R.569/875 to Federal and Florida law enforcement for prosecution of the

conspiring Officials and Judges who conceal its illegality;

2. An Order enjoining this Circuit from any further crimes such as, e.g., false

pretenses, deliberate deprivations, fraud, misrepresentation, misprision of

felonies;

3. An Ordervacating and staying this Courts 04/21/2009 sham Opinion, because it

conceals the illegality of extortion and fraud-scheme O.R.569/875 and further

evidences of this Courts pattern ofracketeering activities;

4. An Orderrecusing the entire Circuit for [extrajudicial] conspiracy to conceal the

prima facie invalidity of forgery O.R.569/875 and for extension of said

extortion and fraud-scheme;

5. An Ordermandatingemergencyjustadjudication of Appellants state eminentdomain issues, unconstitutional temporary takings and other independent ripe

Federal claims;


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6. An Order vacating and staying any and all orders by this Circuit, because it

conspires to obstruct justice under false pretenses that eminent domain fraud

and extortion-scheme O.R.569/875 is a legislative act;

7. An Order declaring eminent domain extortion and fraud-scheme O.R.569/875null-and-void-ab-initio;

8. An Orderenjoining enforcement ofunduly vague O.R.569/875, which is devoid

of any legal description and ascertainable boundaries;

9. An Orderenjoining Appellees disparatetreatment of the Appellants, who have

the sameequal rights of Alice M. S. Robinson under Blue Sheet 980206;

10. An Orderdeclaring any and all cloudsremoved and eliminated pursuant to Lee

County Blue Sheet 980206 and O.R.2967/1084-1090;

11. An Order enjoining this corrupt Circuit from concealing that Appellants have

fundamentalConstitutionally-protected interests in theirlands and easements.

/S/JENNIFER FRANKLIN PRESCOTT, Appellant,pro seP.O. Box 845, Palm Beach, FL 33480-0845


/S/DR. JORG BUSSE, Appellant,pro seP.O. Box 7561, Naples, FL 34101-7561



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VIA U.S.P.S. CERTIFIED MAIL W/ RET. REC.

Geronimo Garcia, F.B.I. Senior Supervisory Resident Agent

Steven E. Ibison, F.B.I. Special Agent-In-Charge

Bret Hood, Special Agent

Federal Bureau of Investigation

U.S. Department of Justice2000 Main ST, Suite 800

Fort Myers, FL 33901

T: 239-337-7171


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11TH

CIRCUIT FRAUD, CORRUPTION, CASE-FIXING, BRIBERY

UNDER FALSE PRETENSES THAT NULL AND VOID O.R.569/875

IS A PURPORTED LEGISLATIVE ACT:

THE 11TH

CIRCUIT

CONCOCTED A LEGISLATIVE ACT [NO RECORD EXISTS];

CONCEALS O.R.569/875s PRIMA FACIE INVALIDITY;

PERVERTED SAID SHAM CLAIM INTO A LEGISLATIVE ACT;

OBSTRUCTED JUSTICE FOR APPELLEES BRIBES.

UNEXECUTED O.R.569/875 IS INVALID FOR MANY REASONS:

1. IT IS UNCONSTITUTIONAL ANDIPSE DIXITCONFISCATORY

2. NO ASCERTAINABLELEGAL BOUNDARIES

3. NOLEGAL DESCRIPTION SURVEY IMPOSSIBLE

4. NOSIGNATURE(S) BY LEE COUNTY COMMISSIONERS

5. NOEXECUTIONBY LEE COUNTY, FLORIDA

6. NO IDENTIFIABLE LEGISLATOR

7. NO RESOLUTION NUMBER

8. NO RECORD OR ENTRY IN COUNTY RESOLUTION BOOK(S)9. NO NOTARIAL ACKNOWLEDGMENT

10. NO SEAL

11. NO IDENTIFIABLEPUBLICUSE/PURPOSE

12. NONECESSITY

13. PUBLICUSE FACTUALLY AND LEGALLY IMPOSSIBLE

14. EXPRESSLY PROHIBITED BY FLORIDA CONSTITUTION

15. VIOLATES FLORIDASEMINENT DOMAINSTATUTES

16. VIOLATES 14TH

CONSTITUTIONAL AMENDMENT

17. VIOLATES 4TH


18. VIOLATES 5TH


19. DECEPTION OUTSIDE JUDICIAL CAPACITY AND JURISDICTION


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Case 2:07-cv-00228-JES-SPC Document 89-2 Filed 08/06/2007 Page 5 of 10


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STATE OF FLORIDA DEPARTMENTOF ENVIRONMENTAL PROTECTION

JOHN LAY AND JANET LAY,

Petitioners, OGC CASE NOs. 01-020301-0204

VS. DOAH CASE NOs. 01-154101-1542

DEPARTMENT OF ENVIRONMENTAL DEP01-0860; DEP01-0876PROTECTION,

Respondent.

_____________________________________/

FINAL ORDER

On August 14, 2001, an Administrative Law Judge with the Division of Administrative Hearings (hereafter"DOAH") submitted his Recommended Order to the Department of Environmental Protection (hereafter "Department"). A

copy of the Recommended Order was also furnished to pro se Petitioners, John and Janet Lay (hereafter the "Lays").' Acopy of the Recommended Order is attached hereto as Exhibit A. Exceptions to the Recommended Order were timelyfiled on behalf of the Department. The Recommended Order and the Exceptions are now before the Secretary of theDepartment for final agency action.

BACKGROUND

The Lays are the owners of Lots 16 and 17, Cayo Costa Subdivision, located on Cayo Costa Island in LeeCounty, Florida. On July 12, 2000, the Lays filed a consolidated application for exemption from the need to obtain anenvironmental resource permit and for a consent of use for a 208 square foot single-family dock. A portion of theproposed dock project would be built on sovereign submerged lands owned by the State of Florida underlying a lagoonwest of Pelican Bay. Due to the Department's focus on minimizing adverse impacts on mangroves bordering the lagoon,the Lays eventually agreed to submit additional information and to reduce the size of their proposed dock to 58 square

feet. The revised application was granted by the Department on August 21, 2000, in DEP File No. 36-0172390-001.The consent of use included General Consent Conditions. Among other things, they stated: "The Letter ofConsent associated with these General Consent Conditions as well as these conditions themselves are subject tomodification after five (5) years in order to reflect any applicable changes in statutes, rule or policies of the Board [ofTrustees of the Internal Improvement Trust Fund] or its designated agent [DEP] .,, 2 There were no other conditions orstatements regarding modification or revocation of the consent of use.

After obtaining their exemption and consent of use in DEP File No. 36-0172390-001, the Lays determined thatthey needed a larger dock. On September 11, 2000, the Lays applied for another exemption and consent of use for a 114square foot single family dock. This application was granted by the Department on October 14, 2000 in DEP File No.36-0172390-002. This consent of use contained the same General Consent Conditions as the first consent of use for theproposed 58 square foot dock. Like the original consent of use issued to the Lays, no provisions were set forth in theconsent of use issued in DEP File No. 36-0172390-002 regarding modification or revocation.

In January of 2001, the County Attorney for Lee County sent the Department a copy of a boundary survey of Lots16 and 17 prepared by Ted B. Urban, a professional land surveyor. See, the Lays' "Exhibit A" admitted into evidence atthe DOM final hearing. This boundary survey reflects that the Lays' proposed dock facility would have to traverse a strip ofland above mean high water ("MHW') approximately 10-15 feet in width. This strip of land east of the boundaries of Lots16 and 17 and above the MHW is designated as a "road easement" on the boundary survey.

Based primarily on its review of this boundary survey, the Department concluded that the Lays were not "uplandriparian" landowners within the purview of Rule 1821.004(3)(b), Florida Administrative Code ("F.A.C."). Accordingly, theDepartment issued a letter dated January 18, 2001, notifying the Lays that the prior consents of use of sovereignsubmerged lands issued in DEP File Nos. 36-0172390-001 and 360172390-002 "are hereby revoked." See "DEP Ex. 15"admitted into evidence at the DOM final hearing. The Lays then filed a petition contesting the Department's agency actionproposing to revoke the two prior consents of use.

DOAH PROCEEDING


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09-11305-DD Criminal Prosecution circ

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