United States v. Warman, 23-MJ-02-EBA, Violation 1062808 (E.D. Ky. Mar 15, 2023)

To Read an Analysis of this decision see: Defendant found criminal guilty for failing to have a federal permit to operate on a lake owned by the United States Army Corps of Engineers (USACE)

UNITED STATES OF AMERICA, PLAINTIFF,
v.
HEATHER WARMAN, DEFENDANT.

No. 23-MJ-02-EBA

Violation No. 1062808

United States District Court, E.D. Kentucky, Northern Division

March 15, 2023

MEMORANDUM OPINION & ORDER

EDWARD B. ATKINS, UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

Defendant Heather Warman is a self-attested “CEO,” “Owner,” “Representative,” and “Manager” of SUP Kentucky.[1] [R. 7 at pg. 4]. On its website, SUP Kentucky advertises kayak rentals and tours on-site at Grayson Grotto, which is situated on Grayson Lake in Olive, Kentucky. [R. 6-1 at pg. 3].[2] Critically, Grayson Lake is federal property, so a commercial business license issued by the United States Army Corps of Engineers (USACE) is required to lawfully solicit or conduct business on the lake. See 36 C.F.R. § 327.18(a). Warman was advised of the requirement multiple times over the course of several months by USACE Project and Resource Manager Francis Jeffrey. Nonetheless, she never applied for a commercial business license nor ceased her operations on the lake. So, on July 23, 2022, Warman was issued a notice for violating 36 C.F.R. § 327.18(a).[3] [R. 1].

Warman appeared before the Court on February 23, 2023 for her initial appearance and arraignment. [R. 3]. Warman pled not guilty to the violation. [Id.]. Thereafter, the Court heard testimony from Jeffrey and Warman. After the taking of proof, the Court directed the parties to submit briefing on the matter no later than March 2, 2023. [Id.]. The United States and Warman tendered their briefs, so the matter is ripe for adjudication. [R. 6; R. 7].

ANALYSIS

A

The United States accuses Warman of engaging in or soliciting business activities on Grayson Lake without authorization from the USACE in violation of 36 C.F.R. § 327.18(a). The regulation prohibits the “engaging in or solicitation of business on project land or waters without the express written permission of the District Commander.” Id. A violator “may be punished by a fine of not more than $5,000 or imprisonment for not more than six months or both[.]” 36 C.F.R. § 327.25. For Warman to be adjudged guilty by this Court, the United States must show beyond a reasonable doubt that Warman knowingly engaged in or solicited business on federal project land or waters, such as Grayson Lake, without the express written permission of the District Commander.

B

On March 28, 2022, Warman called Jeffrey to inquire about expanding certain mountain bike trails onto federal project land surrounding Grayson Lake. [Gov. Ex. 1 at pg. 1]. These bike trails were associated with her business, Grayson Getaways. During the conversation, Warman advised Jeffrey that she was also “the owner and CEO of SUP Kentucky, a guided kayak company” which seeks to expand its operations “on Grayson Lake[.]” [Id.]. Jeffrey informed Warman that it is illegal to operate a commercial business on federal project lands or waters without express consent from the District Commander in the form of a written permit. [Id.]. Warman, however, contended that a permit from the District Commander was unnecessary because she already held a permit from the Commonwealth of Kentucky which allowed her to operate a guided kayak business on “any lake in the state.”[4] [Id.]. Jeffrey assured Warman, though, that she needed a permit from the District Commander and explained to her the difference between federal and state lands. [Id.].

On May 13, 2022, Warman again contacted Jeffrey about expanding Grayson Getaways’ bike trails onto federal project land surrounding Grayson Lake. [Id.]. During the conversation, Jeffrey “reminded her . . . that a permit is needed to continue” her kayak rental and touring operations on Grayson Lake. [Id.]. This constituted her second verbal warning. Once again, Warman “disagreed.” [Id.].

Five days later, on May 17, 2022, the USACE’s Real Estate Division served a cease-and-desist letter on Warman. [Id.]; [Gov. Ex. 2]. The letter advised Warman that she was in violation of 36 C.F.R. § 327.18 for “advertising for and performing guided kayak and standup paddleboard tours on Grayson Lake . . . without the expressed written permission of the District Commander[.]” [Id.]. Warman acknowledged receipt via email, writing “Thank You.” [Gov. Ex. 1 at pg. 1].

Thereafter, Warman communicated with the USACE’s Real Estate Division concerning the permit requirements. [Id.] An in-person meeting was scheduled for May 27, 2022, but was later cancelled. [Id.]. On May 27, 2022, Jeffrey was contacted by Warman’s attorney about the permit requirements and application process. [Id. at pg. 2].

On July 5, 2022, the USACE’s Real Estate Division informed Jeffrey that Warman’s company continued to operate and advertise tours on Grayson Lake. [Id.]. After investigating, Jeffrey concluded that Warman was, in fact, engaging in or soliciting business on project lands without a permit, in violation of 36 C.F.R. § 327.18(a).[5] [Id.]. So, Jeffrey and Natural Resource Specialist Justine Smith cited Warman for violating the regulation. [Id.]. On September 7, 2022, Jeffrey chronicled his investigation into a Memorandum for Record, which the United States offered as an exhibit at trial. [Id.].

C

Warman’s defense is two-fold. First, she says she doesn’t “own” SUP Kentucky, so she argues it’s impossible for her to have operated a business on federal project lands or waters without a permit in violation of 36 C.F.R. § 327.18(a). [R. 6 at pg. 2] (“Warman did not and has not ever owned the Web-Site presented as evidence by the United States of America and as detailed on the Kentucky Secretary of State official records Mrs. Warman does not and has never owned Sup Kentucky.”).[6]
Second, because the citation was issued on July 23, 2022-when she was out of the country, at sea, on her way to Grenada-it was impossible for her to “solicit business or even communicate with anyone other than those physically on board her ship.” [Id.].

Warman’s first defense calls for the Court to make a credibility determination. See United States v. Vance, 956 F.3d 846, 853 (6th Cir. 2020) (explaining that during a bench trial, where the district court sits as “the finder of fact,” the district court “is best placed to determine witness credibility”). Is Jeffrey or Warman’s account of the facts most credible?

Jeffrey, as discussed above, documented his interactions with Warman on numerous occasions spanning a period of several months.[7] During these interactions, Warman held herself out as the owner and/or CEO of SUP Kentucky (and admitted that SUP Kentucky was conducting and soliciting business on Grayson Lake). [Gov. Ex. 1 at pg. 1] (noting that Jeffrey explained orally, at least twice, that “she could not continue to guide on Grayson until a permit is issued,” but that Warman “disagreed”). During trial, however, Warman claimed that she never represented to Jeffrey that she owned, operated, or served as CEO of SUP Kentucky.[8] Yet, Warman testified to holding herself out as a “Representative” of SUP Kentucky, that she serves as a “Manager” for SUP Kentucky, and that her husband owns SUP Kentucky. This aligns with her tendency to use personal possessive pronouns on the stand when referring to SUP Kentucky, such as “we” and “our.” Given Warman’s admissions, Jeffrey’s detailed chronology of his conversations with Warman, and the fact that only Jeffrey’s account has evidentiary support, the Court concludes that Jeffrey’s account of the facts is inherently more credible than Warman’s. So, Warman’s defense that it was impossible for her to violate 36 C.F.R. § 327.18(a) for lack of an ownership interest in SUP Kentucky is unavailing.[9]

Warman’s second defense asserts a conclusion of law without reference to any legal authority: that it was legally impossible for Warman to solicit business from a website while at sea without access to the internet. [R. 6 at pg. 2]. Yet, Jeffrey testified that he issued a citation for Warman because of her ongoing, continuous wrongful conduct-conduct that Jeffrey first became aware of by Warman’s voluntary admission, no less. [Gov. Ex. 1 at pg. 1]. It is a coincidence, at best, that Warman happened to be out of the country on the date that Jeffrey and Smith wrote Warman’s citation. This “defense” would be unavailable if Jeffrey or Smith wrote Warman’s citation on any one of the other 116 days that Warman unlawfully solicited and conducted business on Grayson Lake without permission. And it is illogical to argue that Warman’s travel to another country, alone, precludes her from using a website to passively solicit business.

Although neither of Warman’s defenses persuade the Court, the United States must still carry its burden of proving beyond a reasonable doubt that Warman violated 36 C.F.R. § 327.18(a). Here, the United States did so.

Through the testimony of Jeffrey, the United States proved that Warman is interested in the success of SUP Kentucky.[10]
See [Gov. Ex. 1 at pg. 1]. Also through the testimony of Jeffrey, and implicitly through the testimony of Warman herself, the United States proved that Warman solicited and conducted guided kayak and standup paddle tours on Grayson Lake without a commercial business license. See [Id.]; [Gov. Ex. 6; R. 6-1 at pg. 3] (“All Stand Up Paddle Kentucky adventures meet on-site where your trip will take place…. To help you plan your travels: . . . Grayson Grotto is in Grayson Lake State Park in Olive Hill, Kentucky.”) (emphasis added).

Finally, also through the testimony of Jeffrey and Warman, the United States proved that Warman conducted these activities knowingly. See United States v. Davis, 339 F.3d 1223, 1228 (10th Cir. 2003) (holding that receiving “verbal warnings and correspondence from the Corps of Engineers . . . make clear that [Defendant] had actual knowledge of the regulations and that lake management officials considered his actions to be illegal”). Warman was orally warned by Jeffrey twice that she would need to obtain a commercial business license before operating or soliciting business on Grayson Lake and, when she failed to comply with Jeffrey’s oral warnings, Warman was warned again in writing by the USACE’s Real Estate Division that she was in violation of 36 C.F.R § 327.18(a). [Gov. Ex. 1 at pg. 1]. Warman is guilty beyond any reasonable doubt.[11]

CONCLUSION

Heather Warman was cited with violating 36 C.F.R. § 327.18(a) for soliciting for and operating her guided tour and kayak rental business on Grayson Lake without written permission from the District Commander. Warman pled not guilty. However, the Court concludes beyond a reasonable doubt that Warman violated 36 C.F.R. § 327.18(a). That is, she knowingly engaged in or solicited business on Grayson Lake without the express written permission of the District Commander, despite receiving two prior oral warnings and a formal, written cease-and-desist letter. Therefore, IT IS ORDERED AND ADJUDGED that Heather Warman is GUILTY of violating 36 C.F.R. § 327.18(a).

IT IS FURTHER ORDERED that Heather Warman shall appear for SENTENCING on April 13, 2023 at 10:00 A.M. in the United States District Courthouse at Ashland, Kentucky. On or before Monday, April 10, 2023, the parties shall file memoranda presenting matters that should be considered by the court in calculating an appropriate sentence.

Signed.

———

Notes:

[1] When interacting with USACE Project and Resource Manager Francis Jeffrey, Warman introduced herself as the “owner” and “CEO” of SUP Kentucky. But on cross-examination, Warman said that she doesn’t own SUP Kentucky or serve as its CEO, but instead serves as a “Manager” who holds herself out as a “Representative” of SUP Kentucky.

[2] [Gov. Ex. 6; R. 6-1 at pg. 3] (“All Stand Up Paddle Kentucky adventures meet on-site where your trip will take place. . . . To help you plan your travels: . . . Grayson Grotto is in Grayson Lake State Park in Olive Hill, Kentucky.”) (emphasis added).

[3] The notice was served on Warman via USPS Certified Mail at 2478 Glen Cairn Road, Roger, Kentucky 41365. Jeffrey obtained this address directly from SUP Kentucky’s website, and Warman obviously received the notice given her participation in this action.

[4] This alleged permit was never presented to Jeffrey, or anyone else with the USACE, nor was it offered as evidence at trial.

[5] Jeffrey’s investigation included soliciting a guided kayak tour on Grayson Lake from SUP Kentucky.

[6] Warman asserted at trial and in her trial brief that the Kentucky Secretary of State’s official business registry proves that she’s not an owner of SUP Kentucky. [R. 6 at pg. 2]. However, Warman never offered these records into evidence for the Court’s consideration. So, her claim is without factual support.

[7] Warman, on the other hand, did not.

[8] In a footnote, the United States suggests that Warman’s testimony that she “never informed Resource Manager Francis Jeffrey, the Real Estate Division of the USACE, or her SUP Kentucky clientele that she owned this company or that she represented she was one of the owners of the company” might constitute “perjury and obstruction of justice.” [R. 7 at pg. 7 n.1]. The United States bases its claim off a statement located on the SUP Kentucky website. [Id.]. The USACE is investigating the matter.

[9] Again, Warman’s reliance on evidence outside the record-the Kentucky Secretary of State’s official business registry to argue that she’s not an owner of SUP Kentucky fails to rebut evidence within the record that indicates the opposite. See, supra note 6.

[10] Warman’s precise title seems to be something that not even she can discern. See supra note 1 (highlighting that Warman has held herself out as the “CEO,” “Owner,” “Manager,” and “Representative” of SUP Kentucky at various times to different target audiences).

[11] It’s unclear from the record what type of business association SUP Kentucky is. However, even if SUP Kentucky is a Limited Liability Corporation-the most protective of business associations-“under Kentucky law, a member or manager of an LLC can be held personally liable for [her] own wrongful acts or misconduct even if [she] was acting on behalf of the LLC.” 5ifth Element Creative, LLC v. Kirsch, No. 5:10-cv-255-KKC, 2010 WL 5139235, at *2 (E.D Ky. Dec. 9, 2010); Ky. Rev. Stat. Ann. § 275.150(3); see also 4A Ky. Prac. Methods of Prac. § 18.33 (Nov. 2022) (“In fact, KRS 275.150(3) specifically provides that KRS 275.150(1) shall not affect the liability of a member, manager, employee, or agent of a limited liability company for his or her own negligence, wrongful acts, or misconduct.”). Warman never made this argument at trial or in briefing. But even if Warman had advanced such an argument, she remains liable for her wrongful criminal acts.

———

G-YQ06K3L262


First Aid has its Limits. By law!

However, you need to understand the law as well as first aid. Especially if what you are being taught is an illegal act.

A question posted on Facebook by a first aid training organization asked the question of its face book fans. The responses were all along the lines of a not been trained to perform the illegal act. Most of the answers were correct. However, what has me concerned is the issue that is an issue floating around in the wilderness first aid world.

The question asked about doing an illegal act. The question was, would you stitch a wound if you were in the wilderness? The vast majority of the answers was no. There were a few yes’s, most of them qualified.

There the correct answer is no it is an invasive act. Therefore, it is illegal for anyone other than a physician, or dependent upon the state, someone under a physician’s direct supervision and control. There seems to be a real issue on what someone can do in a first aid situation. Most people who received wilderness first aid training believe they can do anything if they have a doctor or physician advisor or who has taught them how to do it. There are many physicians who have the same belief.

(Remember this is a legal blog: no morals, no ethics just law.)

This blog is not the place to do a complete legal analysis of this issue. However, a short synopsis is appropriate. All first aid training divides the first aid provider into two groups: those who are licensed to provide first aid care and those who are not. A licensed first aid provider is an EMT, paramedic, nurse, nurse practitioner, physician assistant, or physician, etc. A person who has taken a test administered by the state and required by the state to take the test before practicing is a licensed health care provider. Non-licensed first aid providers are everyone else. The non licensed category includes Boy Scouts, wilderness first aiders, Wilderness First Responders, any person happening by the accident. Dependent upon the state where you are operating, a licensed first aid provider may be allowed to do invasive acts. No state allows a non-licensed first aid provider no matter what the training, to do any invasive act.

An invasive act is one where the first aid provider does anything more to an open wound other than clean and bandage the wound. It does not matter what they had been trained to do, or what they think they can do.

If it is a criminal act the person receiving the treatment, the injured person, cannot waive their right and allow the person to do it. It is still a criminal act the matter. The next legal issue is, no criminal act is protected any state Good Samaritan act.

I guess what I find disturbing is the idea that if the person has been trained to do this it would be okay for them to do it. That is not the case. You can be trained to perform heart surgery, but if you do not have a license to practice medicine it does not matter if you are the best heart surgeon in the world it is still a criminal act. If a physician will be standing in the room next to you and has agreed to abide by the state laws you may or may not be able to do something under that physician’s supervision and control. Supervision and control is defined differently in each state. In most states, it means the physician is in the same room where you are performing the procedure you have been trained in.

Does this mean that you get arrested if you do something like this? It totally depends on the outcome. If it’s a good outcome possibly not, if it’s a bad outcome possibly.

The issue is not my paranoia, the issue is the first aid training being received based on the egos of the instructors. And I’m not saying this to condemn any first aid instructor. I’ve met dozens and they are wonderful people. What I’m saying is we all love to impress people; we all love to stand in front of a group of people and tell them how to do things, to educate them. We want them to like us. This is one of the reasons why we teach. If that goes so far as to teach people that if they knew a little more they could do a little more that is where we cross the boundary. Sometimes it’s more than what you have been trained, sometimes it’s whether not you are teaching someone to violate the law.

So am I overly paranoid about that issue? Probably. Is my concern legally correct? Yes.

For more information about these issues see Legal Issues in Wilderness First Aid: Value of various first aid certificates and training, Legal Issues in Wilderness First Aid, and Legal Issues in First Aid #3: The prescription drug conundrum

See http://www.facebook.com/wildernessmedicine?ref=nf

What do you think? Leave a comment.

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