STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITIZENS FOR RESPONSIBLE BOATING, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 93-5699RX
) DEPARTMENT OF ENVIRONMENTAL PROTECTION, )
)
Respondent. )
)
FINAL ORDER
This case was heard by Eleanor M. Hunter, the Hearing Officer designated by the Division of Administrative Hearings, on November 2 and 3, 1993, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Robert S. Thurlow, Attorney
Hal Spence, Attorney Bolt, Spence & Hall
221 North Causeway
New Smyrna Beach, Florida 32169
For Respondent: Jonathan A. Glogau
Assistant Attorney General Department of Legal Affairs PL-01, The Capitol
Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES
Whether Rules 16N-22.001, 16N-22.002, and 16N-22.0121, Florida Administrative Code, are an invalid exercise of delegated legislative authority.
PRELIMINARY STATEMENT
The Petitioner in this case challenges the validity of Rules 16N-22.001, 16N-22.002, and 16N-22.0121, Florida Administrative Code, which impose speed limits for boats in Volusia County. The Department of Environmental Protection ("DEP") relies on Section 370.12(2), Florida Statutes, the Manatee Sanctuary Act, as the statutory authorization for the rules.
On September 10, 1993, DEP published notice in the Florida Administrative Weekly ("FAW") of the enactment of Rule 16N-22.0121 and changes to Rule 16N-
22.001 and 16N-22.002, Florida Administrative Code.
On October 4, 1993, the Petitioner, Citizens for Responsible Boating, Inc., filed a petition for determination that the rules are invalid. The petition asserted that the challenged rules constitute an invalid exercise of delegated authority as defined in Subsection 120.52(8), Florida Statutes (1993).
On October 27, 1993, the Save the Manatee Club filed a Motion to Intervene. On October 28, 1993, Petitioner filed an Objection to Motion to Intervene. The Motion to Intervene brought by the Save the Manatee Club was denied, as untimely pursuant to Rule 60Q-2.010, Florida Administrative Code. At the final hearing, the Petitioner presented the testimony of Michael James Godfrey, Sr., (expert water-skier); Edward J. Stupack, Jr., (expert in boat navigation, and expert boater for inspected vessels of 25 gross tons and uninspected vessels up to 100 gross tons); Richard E. Rawlins (an expert fisherman and operator of boats of 10 to 25 feet in length); William B. Flowers, Sr., (expert fisherman), and Patrick
M. Rose.
DEP presented the testimony of Capt. Alan S. Richard (expert in boating equipment and instruments, operation of boats, and boating safety), and Patrick
Rose (expert in manatee ecology, behavior and biology).
Petitioner introduced four exhibits: (1) water temperature readings, (2) DEP's interrogatory answers, (3) a version of the challenged rule dated August 1991, and (4) a version of the challenged rules dated February 1993. DEP introduced as exhibits (1) the Curriculum Vitae of Capt. Richard, (2) excerpts from the Coast Pilot, (3) the Curriculum Vitae of Patrick Rose, and (4) an agency briefing memorandum. At the request of the Petitioner and without objection, judicial notice was taken of Chapters 370 and 120, Florida Statutes, and Chapter 16N, Florida Administrative Code.
The transcript of the hearing was filed at the Division of Administrative Hearings on November 15, 1993. Recommended Final Orders were filed on December 20, 1993.
FINDINGS OF FACT
Citizens for Responsible Boating, Inc., the Petitioner, is a not-for- profit corporation organized under the laws of Florida. Its approximately 500 members own, sell and use boats and boat related products on the waters regulated by the State. Their purposes are to promote boating and water sports and to protect the boating public's right to access and use of Florida waters.
The Department of Environmental Protection ("DEP") is the state agency with primary responsibility for rulemaking to regulate boat speeds incident to protection of manatees, pursuant to Subsection 370.12(2), Florida Statutes.
After a series of public hearings on earlier versions of the rule, the Secretary of DEP approved the rules on August 11, 1993, to be effective on September 9, 1993.
Subsection 370.12(2), Florida Statutes, the Florida Manatee Sanctuary Act, was enacted to give DEP the authority to regulate:
(f). . . the operation and speed of motorboat traffic, only where manatee sightings are frequent and it can be generally assumed, based on available scientific information, that they inhabit these areas on a regular or continuous basis . . . .
The challenged rules enacted pursuant to the Act have the effect of limiting boat speeds in western Volusia County in the Hontoon Dead River, and the parallel St. Johns River, roughly from a point just south of the Beresford Peninsula at Marker 63 extending south to Marker 81; and in eastern Volusia County on the Indian River from the North Bridge in New Smyrna Beach through Ponce Inlet to Rock House Creek, and on the Indian River in Edgewater and Oak Hill from Marker 65 to Marker 9A. The waterways are designated year round slow speed zones. Slow speed zones are, according to the definitions in Rule 16N- 22.002, designated areas . . . "within which it has been established that manatees are known to congregate."
Eastern Volusia County (Halifax and Indian River)
In the slow speed zone north of New Smyrna Beach, Michael Godfrey, Sr., a boat dealer from Edgewater who formerly water-skied in the area, reported seeing probably 6 manatees over 27 years. His average speed on the water was 45 miles per hour in boats, and in excess of 38 miles per hour on water-skis. The only manatees he is able to see are the ones which have come to the surface of the water to feed.
High speed corridors are included in most of the Volusia County waterways. Exemptions from the speed limits are available for boat dealers with service departments, but no application has been made based on Mr. Godfrey's unexplained conclusion that it is not economically feasible. What was a 15 minute demonstration ride for boats from his Edgewater dealership through the Ponce Inlet prior to the enactment of speed restrictions, now takes 45 minutes.
Water-skiing is impossible in the slow speed zone, and because he is a professional skier, Mr. Godfrey has to use a freshwater lake in Volusia County to ski at speeds exceeding 35 miles per hour. The nearest available freshwater lake is 35 miles from Edgewater. For nonprofessionals, water-skiing is still available in a 35 mile per hour designated water sports area near a power plant. That area is particularly congested on weekends.
The water temperature is usually below 68 degrees in December, January and February. Surface temperatures go as low as 58 degrees.
The rule also applies to jet skis and other types of personal watercraft, skies which average 300 pounds in weight, and extend approximately three inches into the water and have no propellers. These watercraft are not equipped with speedometers.
Some barges on the St. Johns River extend six feet into the water and have not had the speed at which they operate affected by the rule. The speed allowed for boats depends, in part, on the type of hull.
Mr. Godfrey knows how to determine if a boat is operating on a plane, not causing a wake, and coming off plane.
A United States Coast Guard licensed ocean master, Edward J. Stupack, Jr., operated commercial fishing, diving and tour boats in Volusia County to see shuttle launches and to tour Tomoka State Park. The speed limits have caused him to eliminate Tomoka State Park tours, because trips that took four hours now take a full day. Shuttle launch tours which previously took 1 1/2 hours to the shuttle, now take 3 to 4 1/2 hours to the shuttle site.
Registration for the Greater Daytona Strike and Fish Tournament has fallen from 250 boats to less than 200 in the past two years.
At slower speeds, more carbon collects in boat engines, and more maintenance is required. In addition, exhaust fumes and heat make boat rides less comfortable at slow speeds.
In eleven years of boating in eastern Volusia County, Mr. Stupack has seen two manatees both hugging the shoreline, one going out Ponce Inlet to sea and another around Rock House Creek. There is undisputed expert testimony in this case, however, that manatees do not always, or as a general rule, travel along the shoreline. Mr. Stupack has not applied for an exemption from the rules because he does not believe his small, part-time business has enough clout.
In the 50 miles of Intercoastal Waterway from Flagler to Brevard County, eight of the total ten and a half miles regulated were regulated idle speed areas for boating safety prior to the manatee protection speed limits.
The manatee slow speed zone resulted in the addition of two and a half miles of regulated area. There are two designated recreational areas along the 50 miles. DEP relied, in part, on the 1988 report of the Marine Manual Commission to support regulation in Eastern Volusia County.
Western Volusia County (St. Johns River)
Richard E. Rawlins, the owner and operator of a fish camp in Deland with a 150 boat slip and 59 unit campground, operates guided fishing tours exclusively in the St. Johns River Basin from Lake George at Putnam County to Lake Monroe in Seminole County.
Prior to the adoption of the rule, idle zones existed around bridges and marinas on the St. Johns. Mr. Rawlins operated guided fishing tours at speeds of 40 to 45 miles per hour. The camp is close to bankruptcy having gone from 8 to 3 employees, from 80 to 85 percent to 10 percent wet storage occupancy and 30 to 35 percent dry storage occupancy.
Having received three tickets and many warnings for exceeding the speed limit, Mr. Rawlins has reduced, by approximately half, his own recreational boating and fishing. Pulling persons on innertubes has also been eliminated by slow speeds, which he estimates equates to 5 to 7 miles per hour, as compared to innertubing at 40 miles per hour prior to the rule. Although, innertubing at 40 miles per hour was probably unsafe.
Mr. Rawlins 20 foot boat with a 200 horsepower engine gets up on a plane at approximately 28 miles per hour and maintains a plane at 25 miles per hour.
Prior to the rule, water-skiing on the St. Johns occurred primarily between Markers 38 and 20 at Cross Creek. The area now has a 30 mile per hour speed limit above Marker 32 and 25 miles below it.
From the fish camp to the lower basin of the Hontoon Dead River takes over four hours, as compared to 45 to 50 minutes by boat prior to the adoption of the rule. The camp's operation of bass fishing tournaments has been eliminated by the inability to cover greater distances in shorter periods of time.
In 32 years of St. Johns River boating and fishing, Mr. Rawlins estimates having seen manatees on one of every 18 to 20 trips, although the waters of the St. Johns River and its tributaries are relatively dark. He recalls one boat related manatee killing near his camp two and a half years ago, and a couple more at the Hontoon Dead River at about the same time. Recently, he has seen manatees outside of the Blue Springs area near Marker 20. Prior to that, he had not seen manatees in the area for 60 to 70 days.
Although it varies, generally in December, January and February, the guide sees up to 70 manatees congregating in Blue Springs. When water temperature drops below 68 degrees in the rest of the river basin, the manatees move to Blue Springs because of its constant water temperature of 72 degrees.
Mr. Rawlins does not need a speedometer to determine whether his boat is settled in the water. Because different boats settle differently depending on the type of hull, Mr. Rawlins believes Marine Patrol enforcement is not uniform.
The speed limits in the areas north of the camp in the Norris Dead River to Lake Woodruff are at least 25 miles per hour, except for areas of idle zones established for marinas and for public safety, but not under the manatee protection rules. Access to southern fishing areas through the Hontoon Dead River have been adversely affected by the rule. Mr. Rawlins has not filed any written application for an exemption from the rule. He claims to have applied and been turned down by telephone.
One boat manufacturer in Volusia County has received an exemption to test its boats at higher speeds.
William B. Flowers, Sr., is a fishing guide who lives near the Lake Beresford Peninsula, and operates a 14 foot boat powered by a 48-horsepower motor at slower speeds than 300 foot long barges pushed by tugboats with two five foot propellers. It now takes approximately 4 hours to reach the areas of the Wekiva, River which he could reach in 35 minutes prior to the adoption of the rule. He will not apply for an exemption from the rule based on concern for his neighbors who would still have to adhere to the slow speeds.
Lake Beresford is too crowded with fishermen to also accommodate water-skiers. Lake Woodruff and Lake Dexter are in a Federal Wildlife Refuge infested with alligators.
On the St. Johns River, three miles of idle speed zone is imposed for boating safety and an additional nine-tenths of a mile for manatee protection, seven miles around Blue Springs and south of it, and another four and a quarter miles going into the southern Norris Dead River.
The best estimate is that two thousand manatees live in Florida waters. Up to 76 manatees spend some time during the winter months in Blue Springs, particularly when water temperatures elsewhere drop to 20 degrees Centigrade or 68 degrees Fahrenheit. As water temperature approaches 50 degrees, manatees stop feeding and must get to warmer water to survive. Except for times of the most severe cold fronts, manatees in Blue Springs venture out into the St. Johns River system on a daily basis. In general, they venture out
12 kilometers from the springs, but have been known to go to Jacksonville. Mr. Flowers sees manatees around the springs from December to early March, and a few in Lake Beresford when there is grass left in the lake.
The Regulations
Rule 16N-22.003(6) authorizes exemptions for commercial fishermen and professional fishing guides and adopts, by reference, a written application form. Exemptions may not be granted for speeds in excess of 20 miles per hour nor in "motorboat prohibited" and "no entry" zones. There have been no denials of exemption applications from Volusia County. One exemption has been granted in Volusia County, other applications are pending.
DEP relied, in part, on the Bengston study of manatees in the St. Johns River, which shows manatees move from one area to another depending on the availability of grasses for feeding. DEP also relies on the federal Endangered Species Recovery Plan for Manatees, which lists as its first priority reducing boating speeds in order to reduce boating-related accidental manatee deaths.
A killing of a manatee by personal watercraft has been reported in Puerto Rico. There are no documented cases of manatees being killed by airboats. The rules apply to personal watercraft and airboats. Although, there was undisputed expert testimony that exemptions are available for airboats in some slow zones.
In the last 15 to 20 years, an average of two manatees a year have been killed in Volusia County. There was no evidence of the types of watercraft causing the fatal injuries.
Average boating speeds in Broward, Palm Beach and Pinellas Counties are 26 to 28 miles per hour, and lower in the rest of Florida. The majority of smaller recreational boats plane safely at speeds of 25 miles per hour or less. Because of its size and depth of the hull, DEP acknowledges that a barge going 5 miles per hour may pose more danger to manatees than smaller vessels traveling faster.
The meaning of slow speed, as taught to Marine Patrol officers, is that a vessel is fully settled and level in the water and the wake does not endanger other vessels operating on the water or tied up along the shore. If an officer approaches a boat which settles into the water after reducing its speed, then the boat has not been operating at a slow speed.
The view from a moving boat is a poor vantage point to determine the presence of manatees. Manatees are only able to move at speeds up to 15 miles per hour for short distances.
To allow vessels to plane at approximately 20 miles per hour, 25 miles per hour zones have been adopted due to the absence of lower effective boat speeds between slow and 25 miles per hour, at which a boat could plane. The regulations also include 30 and 35 mile per hour speed zones. At 30 miles per
hour, virtually all vessels, except the largest cigarette boats, can plane. At
35 miles per hour, innertubing, parasailing and water-skiing are possible if the water is deep and wide enough, except for barefoot and professional water- skiing. Although many boats are not equipped with speedometers, relatively accurate and inexpensive ones are available to determine speeds in excess of 10 miles per hour. Personal watercraft and jet skis cannot be equipped with speedometers. Other methods for determining speed are frequently used by boaters.
Some of the higher speed zones in Volusia County decrease to 25 miles per hour at night, although moving boaters are unlikely to see manatees and manatees are unlikely to see boats. Manatees are able to see only two or three feet ahead, depending on water clarity, but there was unrefuted expert testimony that they are more aware of surroundings in daylight and better able to sense where to move to avoid boats.
CONCLUSIONS OF LAW
The Division of Administrative hearing has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes.
The Petitioner has standing and has the burden of proof in this rule challenge proceeding. See, Adam Smith Enterprises v. Department of Environmental Regulation, 553 So.2d 1260 (Fla. 1st DCA 1990) and Agrico Chemical Company v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979).
The Petitioner has alleged that the challenged rules are an invalid exercise of delegated legislative authority. A rule is an "invalid exercise of delegated legislative authority," in pertinent part, if:
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);
The rule enlarges, modifies or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary or capricious.
The "Florida Manatee Sanctuary Act," Subsection 370.12(2)(f), Florida Statutes, is the statutory authority for the adoption of motorboat speed limits to protect manatees and provides, in relevant part, for speed limits:
8. In Volusia County: Blue Springs Run and connecting waters of the St. Johns River within 1 mile of the confluence of Blue Springs and the St. Johns River; and Thompson Creek, Strickland Creek, Dodson Creek, and the Tomoka River.
The act also provides that:
(n) The department may designate by rule other portions of state waters where manatees are frequently sighted and it can be assumed that manatees inhabit such waters periodically or continuously.
The legal argument of Petitioner that the legislature restricted regulation of motorboat speeds to the areas of Volusia County specified in Subsection 370.12(2)(f)8, is rejected. That interpretation is inconsistent with Subsection (2)(n) which allows regulation of "other portions of state waters" in which manatees are frequently sighted and can be assumed to inhabit periodically or continuously. Subsection (n) was enacted after (2)(f) and broadens the scope of DEP's rulemaking authority.
The Petitioner next argues that the speed limits unduly interfere with its members' rights.
Subsection 370.12(2) also includes a statement on legislative intent which provides that:
It is not the intent of the Legislature to permit the department to post and regulate boat speeds generally in the above-described inlets, bays, rivers, creeks, thereby unduly interfering with the rights of fishermen, boaters and water-skiers using the area for recreational and commercial purposes.
Undue interference is also defined, by rule, as:
. . . regulation which exceeds that which is warranted based upon all information available, either in degree or in geographic scope, for the protection of manatees in the waters subject to regulation.
. . .[and] is excessive if the regulation
encompasses a larger geographic area or time frame than is warranted for the protection of the manatee,
sets speed limits which are more restrictive than are warranted to protect the manatee, or
encompasses an area where the Department has determined that a likelihood of threat to manatees, as set forth in 16N-22.001(2)(a) does not exist.
Rule 16N-22.002(21), F.A.C.
According to the Petitioner, the speed limits are in effect in areas where manatees are rarely or never seen, and where the temperature is too low during the winter for manatees to survive. The evidence presented in this case is that the witnesses have seen relatively few (6 in 27 years and 2 in 11 years)
manatees in the eastern Volusia County areas, and that manatees congregate in large numbers during the winter only in Blue Springs in the western Volusia County.
Water temperature around Blue Springs offers a reliable basis for being certain that manatees will remain in the springs only on very cold days. However, their behavior gives no assurance that manatees will confine themselves solely to the springs at any other time, even during winter months. In fact, there was credible, expert testimony that other than the duration of extreme cold fronts, manatees may be expected to venture out into adjacent areas to feed. There is no showing that the speed zones in western Volusia County from Marker 63 to Marker 81 on the Hontoon Dead River and the parallel St. Johns are excessive. With Blue Springs between Markers 69 and 75, and the Bengston study documenting manatee movements, the Petitioner has failed to show that the speeds are excessively slow or that the area encompassed is excessively large. Testimony of relatively few sightings in the St. Johns River is further undermined by the testimony regarding the murkiness of the water.
Petitioner's witnesses all testified regarding the frequency of sightings from skis or motorboats in eastern Volusia County. There was reliable evidence that manatees surface to feed, but cannot be seen at greater depths or resting on the bottom of the water. Petitioner's unscientific reports of sightings from a poor vantage point necessitates a conclusion that Petitioner has failed to meet its burden of proving the regulations are an invalid exercise of delegated legislative authority.
Petitioners have also alleged undue interference with the rights of boaters and water-skiers. There was undisputed testimony, that DEP considered and modified rules to benefit boaters, and that the average speed for boats in Florida is between 26 and 28 miles per hour. Speed regulations between 25 to 35 miles per hour are not an undue interference for the average boater. Activities which have been substantially eliminated by the rule are barefoot and professional water-skiing, which require speeds in excess of 35 miles per hour in water over eight feet deep. If innertubing at 40 miles per hour has also been eliminated, there is no undue interference with an activity which would merit a ticket for reckless endangerment from the Florida Marine Patrol. The elimination of very limited types of skiing and of an unprotected activity from the regulated waterways is not undue interference with the rights of boaters.
In fact, rules establishing the more extreme motorboat prohibited zones were upheld against claims of undue interference in Ward v. Department of Natural Resources, etc., DOAH Case No. 89-5661R (F.O. 1/5/90).
Petitioner asserts that no rational relationship exists between boat speeds and manatee deaths and injuries, and that "slow speed" is inadequately defined.
Slow speed is defined in the rule, as follows:
(7) "Slow speed" means no speed greater than that which is reasonable and prudent to avoid either intentionally or negligently annoying, molesting, harassing, disturbing, colliding with, injuring or harming manatees and which comports with the duty of all persons to use due care under the circumstances.
A vessel that is: (1) operating on a plane is not proceeding at slow speed; (2) operating at a speed that creates no wake or minimum wake is proceeding at slow speed; (3) in the process of coming off plane and settling into the water or coming up onto plane is not proceeding at slow speed; (4) completely off plane and which has fully settled into the water and is proceeding without wake or with minimum wake is proceeding at slow speed.
The Petitioner also argues that the rule is arbitrary because different types of boats are allowed to travel at different speeds, and that many boats and related watercraft operating without speedometer cannot observe the speed limits.
The Florida Supreme Court described the standard for review in rule challenge cases in General Telephone Company of Florida v. Florida Public Service Commission, 446 So.2d 1063, 1067 (Fla. 1984), as follows:
We adopt as the proper standard of review one set forth by the First District Court of Appeal upon review of similar rulemaking:
Where the empowering provision of a statute states simply that an agency may make such rules and regulations as may be necessary to carry out the provisions of this act. The validity of the regulations promulgated thereunder will be sustained as long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary and capricious. Agrico Chemical Company v.
State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. den., 376 So.2d 74 (Fla. 1979).
The rational relationship or reasonable related test is not, as determined by the hearing officer in Citizens For Responsible Boating, Inc. v. Division of Administrative Hearings, Department of Natural Resources, DOAH Case No. 91- 7635R, (F.O. 2/24/92), per curiam aff'd., 612 So.2d 731 (Fla. 5th DCA 1993), and State v. Rawlins, Volusia County Case No. 92-1098-G, affirmed, in part, and reversed, in part, 623 So.2d 598 (Fla. 5th DCA 1993). In the latter, the district court affirmed the county court's finding of a rational relationship between regulating motorboat speeds and the permissible legislative objective of protecting manatees. The district court also reversed the county court's order dismissing the charges against Rawlins, because that version of the rule failed to define "undue interference." The county court judge's determination that the term "frequent" has a commonly understood meaning, and that "slow speed" was appropriately defined by rule to give adequate notice of the prohibited conduct was not overturned. Indeed, in this case, every witness testified that he understood "slow speed," and there was competent evidence to support the conclusion that through a variety of methods, boaters are and must be, by state and federal law, able to determine the approximate speed of their vessels, regardless of hull type.
In the absence of a showing that they are excessive, arbitrary or capricious, Rules 16N-22.001, 16N-22.002, and 16N-22.0121 may not be invalidated.
The well recognized general rule is that agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies' general statutory duties. Florida Commission on Human Relations v. Human Development Center, 413 So.2d 1251 (Fla. 1st DCA 1982).
An agency's construction of the statute it administers is entitled to great weight and
is not to be overtuned unless clearly erroneous.
Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984).
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition for Determination of the Invalidity of Florida
Administrative Code Rules 16-22.001, 16N-22.002, and 16N-22.012 filed in this
case is DISMISSED.
DONE AND ENTERED this 4th day of February, 1994, in Tallahassee, Leon County, Florida.
ELEANOR M. HUNTER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1994.
APPENDIX TO FINAL ORDER, CASE NO. 93-5699RX
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been reejected and the reason for their rejection have also been noted.
Petitioner's Proposed Findings of Fact.
Accepted in Finding of Fact 1.
Accepted in Finding of Fact 1.
Accepted in Finding of Fact 1.
Accepted in Conclusions of Law 43.
Accepted in Finding of Fact 2.
Subordinate to Findings of Fact 2 and 3.
Accepted in Preliminary Statement.
Accepted in Finding of Fact 4 and Conclusions of Law 45 and 47.
Accepted in Finding of Fact 3.
Omitted.
Rejected in Findings of Facts 6 and 40.
Subordinate to Finding of Fact 6.
Accepted in Finding of Fact 8.
Rejected first sentence and accepted second sentence in Findings of Fact 40.
Subordinate to Finding of Fact 40.
Subordinate to Finding of Fact 40.
Subordinate to Finding of Fact 40.
Accepted in Finding of Fact 40.
Subordinate to Finding of Fact 40.
Accepted in Finding of Fact 40.
Rejected in Findings of Fact 40.
Accepted in Finding of Fact 8.
Accepted in Finding of Fact 8.
Accepted in Finding of Fact 6, 22, and 30.
Subordinate to Finding of Fact to 40.
Accepted in Finding of Fact 40.
Accepted in Finding of Fact 40.
Accepted in Finding of Fact 8.
Accepted in Finding of Fact 6.
Accepted in Finding of Fact 8 for those in Edgewater area.
Accepted in Finding of Fact 33.
Rejected in Findings of Fact 8.
Accepted in Finding of Fact 10.
Accepted in Finding of Fact 10.
Subordinate to Finding of Fact 10.
Rejected in Findings of Fact 39.
Accepted in Finding of Fact 33.
Accepted in general, but, in part, contradicted by Finding of Fact 15.
Not substantiated.
Accepted in Findings of Fact 13,14, 19, 23 and 29.
Accepted as amended in Finding of Fact 7.
Accepted in Finding of Fact 15.
Subordinate to Finding of Fact 15.
Accepted in Finding of Fact 44.
Accepted in Finding of Fact 15.
Accepted in Finding of Fact 19.
Accepted in Finding of Fact 20.
Rejected, as not having been established in Findings of Fact 27.
Accepted in Finding of Fact 18.
Accepted in Finding of Fact 19.
Accepted in Finding of Fact 23.
Subordinate to Finding of Fact 23.
Subordinate to Finding of Fact 23.
Accepted in Finding of Fact 33.
Subordinate to Finding of Fact 33.
Accepted in Finding of Fact 5.
Subordinate to Finding of Fact 37.
Accepted as modified in Finding of Fact 14.
Accepted as modified in Finding of Fact 23.
Accepted as modified in Finding of Fact 17.
Accepted as modified in Finding of Fact 17.
Accepted as modified in Finding of Fact 17.
Rejected in Finding of Fact 37.
Accepted in Finding of Fact 19.
Subordinate to Finding of Fact 17.
Subordinate to Finding of Fact 5 and Accepted in Finding of Fact 7.
Subordinate to Finding of Fact 5 and Accepted in Finding of Fact 27.
Subordinate to Findings of Fact 25 and 27.
Subordinate to Finding of Fact 4.
Accepted in Findings of Fact 16, 24, 25, 32, and 34.
Irrelevant.
Accepted as modified in Finding of Fact 36.
Subordinate to Finding of Fact 36.
Rejected in Conclusion of Law 50.
Rejected in Conclusion of Law 50.
Rejected as not established in Conclusions of Law 49 and 51.
Rejected as not established in Conclusions of Law 49 and 51.
Rejected as not established in Conclusions of Law 49 and 51.
Accepted for surface water in Finding of Fact 9.
Rejected in Findings of Fact 32.
Rejected as not established in Conclusions of Law 50 and 51.
Accepted in Finding of Fact 5.
Rejected as not relevant.
Subordinate to Conclusion of Law 48.
Rejected in Findings of Fact 48.
Subject to Conclusion of Law 55.
Rejected in Conclusion of Law 55.
Accepted as to hitting, rejected as to harming in Conclusion of Law
55.
Rejected in Findings of Fact 4.
Rejected in Findings of Fact 4, 45, 46, and 48.
Rejected in Findings of Fact 4, 45, 46, and 48.
Accepted in Finding of Fact 41.
Rejected. See, Section 120.60, Florida Statutes.
Rejected as not established.
Accepted in Finding of Fact 28.
Issue not reached based on Conclusions of Law 50 and 51.
Rejected in Conclusion of Law 54.
Rejected in Conclusion of Law 54.
Rejected in Conclusion of Law 54.
Rejected in Conclusion of Law 55.
Subordinate to Finding of Fact 55.
Subordinate to Finding of Fact 55.
Subordinate to Finding of Fact 55.
Subordinate to Finding of Fact 55.
Rejected as not established.
Rejected as modified in Finding of Fact 55.
Rejected in Findings of Fact 36 and 37.
Accepted in Finding of Fact 37.
Subordinate to Findings of Fact 36 and 37.
Subordinate to Findings of Fact 36 and 37.
Accepted in Finding of Fact 11.
Issue not reached.
Subordinate to Finding of Fact 10 and 11.
Subordinate to Finding of Fact 10 and 11.
Subordinate to Finding of Fact 11.
Accepted in Finding of Fact 37.
Accepted in part in Finding of Fact 11 and rejected in part in Finding of Fact 38.
Accepted as modified in Finding of Fact 40.
Subordinate to Finding of Fact 40.
Subordinate to Finding of Fact 40.
Subordinate to Finding of Fact 40.
Accepted in Finding of Fact 39.
Subordinate to Finding of Fact 16.
Accepted in Finding of Fact 39.
Accepted as modified in Findings of Fact 39 and 41.
Subordinate to Findings of Fact 39 and 41.
Respondent's Proposed Findings of Fact.
Accepted in Finding of Fact 7.
Accepted in Conclusions of Law 50.
Subordinate to Finding of Fact 33.
Accepted in Finding of Fact 34.
Accepted in Finding of Fact 34.
Subordinate to Finding of Fact 34.
Accepted in Conclusions of Law 45 and 46.
Accepted in Finding of Fact 32.
Accepted in Finding of Fact 16.
Accepted in Conclusions of Law 46.
Accepted in Finding of Fact 46.
Accepted in Conclusions of Law 50.
Accepted in Conclusions of Law 51.
Accepted in Finding of Fact 34.
Accepted in Finding of Fact 41.
Accepted in Finding of Fact 35.
Subordinate to Finding of Fact 3.
Accepted in Finding of Fact 25.
Accepted in Conclusions of Law 48.
Accepted in Finding of Fact 37 and Conclusion of Law 50.
Accepted in Findings of Facts 12, 26, and 38 and Conclusion of Law 51.
Subordinate to Finding of Facts 12, 26, 38 and Conclusion of Law 51.
Accepted in Conclusions of Law 51.
Accepted in Finding of Fact 40.
Subordinate to Conclusions of Law 51.
Subordinate to Conclusions of Law 51.
Subordinate to Conclusions of Law 51.
Subordinate to Conclusions of Law 51.
Subordinate to Conclusions of Law 51.
Subordinate to Conclusions of Law 51.
Subordinate to Conclusions of Law 51.
Accepted in Finding of Fact 24 and 39.
Accepted in Finding of Fact 20 and Conclusions of Law 50.
Accepted in Findings of Fact 21, 37 and 40.
Accepted in Conclusions of Law 52.
Accepted in Finding of Fact 40 and Conclusion of Law 50.
Accepted in Finding of Fact 40.
Accepted in Finding of Fact 17.
Accepted in Finding of Fact 31.
Accepted in Finding of Fact 31.
Accepted in Finding of Fact 33.
Accepted as not solely determinative; Rejected as not useful in Finding of Fact 37.
Subordinate to Conclusion of Law 50.
Accepted in Finding of Fact 40.
Accepted in Finding of Fact 40.
Accepted in Finding of Fact 40.
COPIES FURNISHED:
Hal Spence, Attorney Bolt, Spence & Hall, P.A.
221 North Causeway
New Smyrna Beach, Florida 32169-5239
Jonathan A. Glogau Assistant Attorney General PL-01, The Capitol
Tallahassee, Florida 32399-1050
Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Kenneth J. Plante, Esquire General Counsel
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Proceedings |
|---|---|
| Feb. 04, 1994 | CASE CLOSED. Final Order sent out. Hearing held November 2 and 3, 1993. |
| Dec. 20, 1993 | Respondent's Proposed Final Order filed. |
| Dec. 17, 1993 | (unsigned) Recommended Final Order; Floppy Disk Continuance Recommended Final Order w/copies of Case Law Cited in Recommended Final Order filed. (From Hal Spence) |
| Nov. 29, 1993 | Order Granting Extension of Time sent out. (Proposed Recommended Order`s due 12/17/93) |
| Nov. 23, 1993 | Respondent's Motion for Extension of Time to File Proposed Recommended Order filed. |
| Nov. 18, 1993 | Transcript (Vols 1&2) filed. |
| Nov. 01, 1993 | Petitioner`s Response to Request for Production; Petitioner`s Notice of Service of Answers to Respondent`s First Interrogatories; Petitioner`s Answers to Respondent`s First Interrogatories; Objection to Motion to Intervene filed. |
| Nov. 01, 1993 | (joint) Prehearing Stipulation filed. |
| Oct. 29, 1993 | (Petitioner) Objection to Motion to Intervene filed. |
| Oct. 29, 1993 | Petitioner`s Request for Production of Documents; Petitioner`s Notice of Service of Interrogatories; Petitioner`s First Interrogatories to Respondent filed. |
| Oct. 29, 1993 | Petitioner`s Response to Request for Production filed. |
| Oct. 28, 1993 | Petitioner's Notice of Service of Interrogatories; Petitioner's Request for Production of Documents filed. |
| Oct. 28, 1993 | (Save the Manatee, Club) Motion to Intervene filed. |
| Oct. 22, 1993 | Notice of Hearing sent out. (hearing set for 11/2-3/93; 10:00am; Tallahassee) |
| Oct. 22, 1993 | Respondent's Notice of Service of Interrogatories; Respondent's Request for Production of Documents filed. |
| Oct. 19, 1993 | (Respondent) Notice of Appearance filed. |
| Oct. 18, 1993 | Petitioner's Response to Prehearing Order filed. |
| Oct. 08, 1993 | Prehearing Order sent out. |
| Oct. 05, 1993 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard w/cc: Agency General Counsel sent out. |
| Oct. 05, 1993 | Order of Assignment sent out. |
| Oct. 04, 1993 | Petition for Determination of Invalidity of Florida Administrative Code Rules 16N-22.001, 16N-22.002 And 16N-22.021 filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 04, 1994 | DOAH Final Order | Burden of proving invalid Volusia County boat speed limits enacted for man- atee protection not met. |
