STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COUNTY COMMISSIONERS ) OF NASSAU COUNTY, FLORIDA, )

et. al., )

)

Petitioners, )

)

vs. ) CASE NOS. 92-4912RU

) 92-4913RX

DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in these cases before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 21, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioners: William E. Williams, Esquire

Robert D. Fingar, Esquire

Huey, Guilday, Kuersteiner & Tucker, P.A.

106 East College Avenue Highpoint Center, Suite 900 Post Office Box 1794 Tallahassee, Florida 32302

For Respondent: Edwin A. Steinmeyer

Barrie J. Sawyer

Assistant General Counsels Department of Natural Resources 3900 Commonwealth Boulevard Mail Station Number 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES

1. Whether Petitioners' exhibit 2 (Respondent's exhibit 1), the "Amelia Island State Recreation Area Beach Access Information Sheet", with map, (hereinafter referred to as the "Information Sheet"), which was issued by the Department of Natural Resources' Division of Recreation and Parks, and certain signs erected by Division of Recreation and Parks constitute a "rule";

   
   

2. If the Information Sheet and signs constitute a "rule", has the Respondent adopted the information evidenced on the Information Sheet and the signs pursuant to Section 120.54(4), Florida Statutes; and

   
   

3. If the information evidenced on the Information Sheet and the signs constitutes a "rule", was the Respondent required by Section 120.535, Florida

   Statutes, to adopt the Information Sheet and the signs as a rule pursuant to Section 120.54, Florida Statutes?

   
   

   PRELIMINARY STATEMENT

   
   

   On August 12, 1992, the Petitioners, the Board of County Commissioners of Nassau County, Florida, et al., filed two petitions with the Division of Administrative Hearings: (1) a Petition for Administrative Determination of Failure to Adopt Agency Statement Through Rulemaking pursuant to Section 120.535, Florida Statutes; and (2) a Petition for Administrative Determination of Invalidity of Existing Rule pursuant to Section 120.56, Florida Statutes.

   The Section 120.535, Florida Statutes, challenge was assigned case number 92- 4912RU and the Section 120.56, Florida Statutes, challenge was assigned case number 92-4913RX.

   
   

   The Petitioners also filed a Notice of Related Cases and Motion to Consolidate with the rule challenge petitions. In the notice, the Petitioners informed the Division of Administrative Hearings and the Respondent that two rule challenge petitions relating to the same general subject matter had been filed with the Division of Administrative Hearings and that a third petition, a Petition for Formal Administrative Hearing, had been filed with the Respondent pursuant to Section 120.57(1), Florida Statutes. The Petitioners requested that all three cases be consolidated.

   
   

   On August 25, 1992, an Order Granting Motion to Consolidate was entered consolidating the two rule challenge cases. In light of the fact that the petition filed pursuant to Section 120.57(1), Florida Statutes, had not yet been filed with the Division of Administrative Hearings by the Respondent and, due to the requirement that the final hearing in the rule challenge cases be held within thirty days of the assignment of those cases, the Order Granting Motion to Consolidate did not address the petition filed pursuant to Section 120.57(1), Florida Statutes.

   
   

   The petition filed pursuant to Section 120.57(1), Florida Statutes, was subsequently filed with the Division of Administrative Hearings by the Respondent on September 15, 1992, with a letter requesting that the final hearing on that matter be conducted by a Hearing Officer of the Division of Administrative Hearings. The petition filed pursuant to Section 120.57(1), Florida Statutes, was designated case number 92-5604 and was assigned to the undersigned. On September 23, 1992, a Second Order Granting Motion to Consolidate was entered consolidating case number 92-5604 with these cases.

   
   

   The final hearing of these two cases was scheduled for final hearing on September 14, 1992, in Tallahassee, Florida, by Notice of Hearing entered August 18, 1992. The hearing was rescheduled for November 12 and 13, 1992, by an Order Granting Motion for Continuance and Rescheduling Final Hearing entered September 11, 1992. The hearing was rescheduled for December 21-23, 1992, by an Order

   entered October 30, 1992.

   
   

   Only one final hearing was conducted to receive evidence on all three cases. A separate Recommended Order has been entered in case number 92-5604 simultaneously with this Final Order.

   
   

   At the final hearing the Petitioners presented the testimony of the Honorable John Alvin Crawford and Jack B. Healan. The Petitioners also presented the deposition testimony of Michael Kevin Murphy (Petitioners' exhibit 17), Don Duden (Petitioners' exhibit 24) and Nevin Smith (Petitioners' exhibit

   25). The Petitioners offered a total of 26 exhibits, which were marked as Petitioners' exhibits 1-6 and 8-27. All of the Petitioners' exhibits were accepted into evidence. No Petitioners' exhibit 7 was offered.

   
   

   The Respondent presented the testimony of Robert Edwin Joseph, Patrick Jodice and Mark Glisson. The Respondent also offered the deposition testimony of Michael Kevin Murphy (Respondent's exhibit 12), James Hardwick (Respondent's exhibit 13), and Fran Mainella (Respondent's exhibit 15) The Respondent offered fifteen exhibits which were accepted into evidence. Respondent's exhibits 1-2, 6, 9 and 12 are duplicates of exhibits offered into evidence by the Petitioners.

   
   

   A transcript of the hearing was filed on January 12, 1993.

   
   

   The parties have filed proposed final orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

   
   

   FINDINGS OF FACT

   
   

   1. The Parties.

      
      

      1. The Respondent, the Department of Natural Resources (hereinafter referred to as the "Department") is a state agency charged with the responsibility to manage Florida's parks and recreation areas pursuant to Chapter 258, Florida Statutes, and the rules promulgated thereunder.

         
         

      2. The Department is also charged with responsibility to administer, supervise, develop and conserve the natural resources of the State pursuant to Chapter 370, Florida Statutes, and the rules promulgated thereunder.

         
         

      3. At issue in this proceeding are certain actions taken by the Department, primarily through the Department's Division of Recreation and Parks (hereinafter referred to as the "Division"), with regard to Amelia Island State Recreation Area (hereinafter referred to as the "AISRA"). The AISRA is located at the southern tip of Amelia Island, Nassau County, Florida.

         
         

      4. Petitioner Board of County Commissioners (hereinafter referred to as the "Board"), of Nassau County, Florida, is the governing body of Nassau County, Florida, a non-charter county of the State of Florida.

         
         

      5. The Board is authorized to enact ordinances not inconsistent with general or special law pursuant to Section 1(f), Article VIII of the Constitution of Florida.

         
         

      6. The Board is interested in insuring continued vehicular access to the southern end of Amelia Island within the AISRA. In part, the Board's concern is caused by a belief that the southern end of the AISRA is a good fishing area. The Board's concern is also based upon a belief that access to the southern end of the island will be severely restricted to the old and disabled if vehicular traffic is prohibited in the AISRA.

         
         

      7. The Board has authorized participation in this proceeding.

         
         

      8. Petitioner Amelia Island Company is a Florida corporation:

         1. Amelia Island Company has developed a resort and residential community known as Amelia Island Plantation (hereinafter referred to as the "Plantation"), on Amelia Island.

            
            

         2. Amelia Island Company also owns Amelia Island Inn, 2 undeveloped tracts of land, a beach club, a conference center, a tennis facility and golf courses. All of these properties are located within the Plantation.

            
            

         3. The eastern boundary of the Plantation consists of Atlantic Ocean beach.

            
            

         4. Some facilities of Amelia Island Company front on the Atlantic Ocean.

            
            

         5. The Plantation is located north of the AISRA.

            
            

         6. Amelia Island Company manages approximately 525 residential units within the Plantation pursuant to rental contracts with the unit owners. The units are rented and guests have the right to use the Plantation beach.

            
            

         7. Some owners and guests of the properties located within the Plantation use the AISRA for fishing. The weight of the evidence failed to prove how many people use the AISRA or how often.

         
         

      9. Petitioner Amelia Island Plantation Community Association (hereinafter referred to as the "AIPCA"), is an association:

         
         

         1. The members of AIPCA represent the residential communities within the Plantation, including Amelia Island Company and individual property owners.

            
            

         2. Members participate in the AIPCA through eighteen condominium associations representing the individual property owners.

            
            

         3. The AIPCA maintains the Plantation beach.

            
            

         4. The AIPCA owns the roads, parks and some other facilities within the Plantation.

            
            

      10. Petitioner Amelia Island Rental Property Owners Association (hereinafter referred to as the AIRPOA) is an association:

          
          

          1. AIRPOA consists of approximately 410 residential unit owners whose units are located within the Plantation.

             
             

          2. AIRPOA member units are rented through the Amelia Island Company.

             
             

          3. The AIRPOA has supported activities designed to stop beach driving on the Plantation beach.

          
          

      11. Petitioner Dune Club Company II is a Florida corporation:

          
          

          1. The company owns undeveloped land which it intends to develop as multifamily condominiums.

             
             

          2. The land owned by Dune Club Company II is located in the Plantation. Therefore, future owners of condominiums will have the right to use the Plantation beach.

      12. Petitioner Amelia Island Holding Company is a Florida corporation:

          
          

          1. The corporation owns undeveloped land within the Dunes Club development, which is located within the Plantation.

             
             

          2. Future owners of property within this development will have the right to use the Plantation beach.

          
          

      13. Petitioner Piper Dunes is a Florida corporation:

          
          

          1. Piper Dunes is developing multifamily condominiums within the Plantation.

             
             

          2. Future owners of Piper Dunes' condominiums will have the right to use the Plantation beach.

          
          

      14. Petitioners Dunes Club Community Association, Dunes Row Community Association, Beachwalker Villas Association, Inc., Captain's Court Villas Association, Inc., Inn Rooms at Amelia, a Condominium Association, Inc., Sandcastles at Amelia Island Condominium Association, Inc., Sea Dunes Condominium Association, Inc., Shipwatch Villas Association, Inc., Spyglass Villas Owners Association, Inc., Turtle Dunes Condominium Association, Inc., and Windsong at Amelia Island Plantation Community Association, Inc., (hereinafter referred to as the "Plantation Associations") are Florida corporations and condominium associations:

          
          

          1. The Plantation Associations are comprised of residents and owners located within the Plantation.

             
             

          2. The Plantation Associations' members are all proximate to the Atlantic Ocean beach of the Plantation.

             
             

          3. The governing boards of the Plantation Associations have been active in attempting to restrict driving on the beach running through the Plantation.

             
             

          4. A substantial number of property owners of the Plantation Associations use the beach running through the Plantation for sunbathing, swimming, surfing, walking, jogging, and other beach activities.

          
          

   2. Geography.

      
      

      1. Amelia Island is located at the most northeasterly corner of Nassau County, Florida, and the State of Florida.

         
         

      2. Amelia Island is bounded on the east by the Atlantic Ocean and on the west by the Intercoastal Waterway. Where the Intercoastal Waterway meets the Atlantic Ocean at the southern tip of the island is named Nassau Sound.

         
         

      3. The AISRA is bounded on the southwest by Nassau Sound, on the southeast by the Atlantic Ocean, on the north-northwest by Highway A1A and on the north by a relatively large area of undeveloped, privately-owned land.

         
         

      4. It is approximately one-half mile from the areas which have been designated by the Department as parking areas in the AISRA to the southernmost tip of Amelia Island. The distance can make it more difficult for fishermen to access the southern end of the island.

   3. The Creation of the AISRA.

      
      

      1. The previous owners of the property which makes up the AISRA transferred the property by warranty deeds dated July 1, 1983, December 19, 1983 and June 28, 1985 to the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (hereinafter referred to as the "Trustees"). See Petitioners' exhibit 16.

         
         

      2. The Division took over management of the property which makes up the AISRA pursuant to a Lease Agreement and pursuant to a Management Agreement for Certain Submerged Lands Bordering State Lands (hereinafter referred to as the "Management Agreement"). The Lease Agreement, dated November 19, 1984, and the Management Agreement were entered into between the Trustees and the Division. Petitioners' exhibit 16.

         
         

      3. The Lease Agreement was amended on June 22, 1987. Petitioners' exhibit 16.

         
         

      4. The Management Agreement was amended on January 19, 1988. Petitioners' exhibit 16.

         
         

      5. In general, the property was leased to the Division for recreation and conservation purposes. The Division is given authority to manage the property for public health and safety, for protection of the property and to be managed as a recreation area.

         
         

      6. In part, the Management Agreement, as amended, gave the Division authority over:

         
         

         All those sovereign submerged lands lying within 400 feet of the mean high water or ordinary high water line . . . .

         
         

      7. The Lease Agreement and Management Agreement require that the Division, within twelve months of entering into the Lease Agreement, adopt a Management Plan providing for the "basic guidance for all management activities." Management Plans are to be reviewed by the Trustees every five years after the first Management Plan is adopted. No Management Plan has been adopted by the Department.

         
         

      8. The evidence in this proceeding failed to prove that the Trustees have taken any action against the Division for failing to adopt a Management Plan as contemplated by the Lease Agreement. The evidence also failed to prove that the Petitioners are privy to the Lease Agreement or Management Agreement.

         
         

      9. Administratively, the Division treated the AISRA as part of the Talbot Island State Geo Park. The Geo Park is made up of Big Talbot Island State Park, Little Talbot Island State Park, Fort George Island Cultural Site and the AISRA. Therefore, because the administrative offices of the Talbot Island State Geo Park were not located at the AISRA, the AISRA has received minimal attention since its creation.

         
         

   4. Beach Driving and Parking; Prior to, and Immediately After, the Acquisition of the AISRA by the Department.

      
      

      1. Prior to the creation of the AISRA, people drove and parked motor vehicles on the beach which is now part of the AISRA. People were able,

         depending on the tides, to drive on the beach of the AISRA from the southwest end of Amelia Island from Highway A1A at Nassau Sound, around the southern tip of the island, and north on the Atlantic side of Amelia Island.

         
         

      2. After the Division acquired responsibility for the management of AISRA, the Division, and thus the Department, did not take any action to prohibit all driving and parking on the beach in the AISRA. See, however, section J, infra.

         
         

   5. Legislative Prohibition Against Driving on Coastal Beaches.

      
      

      1. Prior to 1985, driving and parking on the beach fronting the Plantation, as well as other beaches under the jurisdiction of the Board, was permissible.

         
         

      2. In 1985, the Florida Legislature enacted Section 161.58, Florida Statutes. In relevant part, Section 161.58, Florida Statutes, as amended by Chapter 88-106, Laws of Florida, provided that "[v]ehicular traffic . . . is prohibited on coastal beaches "

         
         

      3. As amended, Section 161.58, Florida Statutes, allows a "local government with jurisdiction over a coastal beach or portions of a coastal beach" to authorize vehicular traffic "on all portions of the beaches under its jurisdiction" [emphasis added], upon three-fifths vote of the local government's governing body and if certain conditions concerning existing off-beach parking are met.

         
         

   6. The Special Act, Chapter 89-455, Laws of Florida.

      
      

      1. A dispute over Section 161.58, Florida Statutes, arose between the Board and various private landowners on Amelia Island, including some, if not all, of the Petitioners in these cases. The Board was opposed to the ban on vehicular traffic on the beaches of Amelia Island provided by Section 161.58, Florida Statutes, while the private landowners were in favor of the total ban.

         
         

      2. As a result of the dispute between the Board and private landowners, the Board and private landowners approached the legislative representatives for their area. As a result of this effort, the Florida Legislature enacted a special act, Senate Bill 1577, Chapter 89-445, Laws of Florida (hereinafter referred to as the "Special Act"). The Special Act represented a compromise between the positions of the Board and the private landowners.

         
         

      3. Chapter 89-445, Laws of Florida, provides as follows:

         
         

         . . . .

         Section 1. (1) Scott Road shall be relocated south of the Amelia Surf and Racquet Club Condominium in Nassau County. As part of this relocation, off-beach parking spaces for 100 vehicles must be provided. In addition, access for motorized vehicles onto the Atlantic Beach area must be provided.

         
         

         1. Parking on the beach is permitted in Nassau County in the area known geographically as Peters Point Road to Scott Road, as

            relocated after September 30, 1989. Parking on the beach in such area is prohibited after Nassau County issues a certificate of occupancy for the planned Ritz Carlton Hotel.

            
            

         2. On-beach parking shall continue to be permitted in the following nonresort areas:

            1. The Peters Road intersection with the beach area north to the city limits of Fernandina Beach.

            2. The Lewis Street intersection with the beach area north to the developed resort area parcel and south to the developed resort area parcel.

            3. The southerly end of Amelia Island from the Nassau Sound side to the developed resort area parcel on the Atlantic Ocean side.

The term "developed resort area" means any property that is subject to a development order as of the effective date for this act if such development order indicates resort activities.

(4)(a) On-beach parking in front of an undeveloped resort area parcel shall be prohibited upon the issuance of a certificate of occupancy for that parcel, contingent upon the existence of adequate off-beach parking during the peak period.

(b) For purposes of determining the existence of adequate off-beach parking, the parking available at sites off the beach, measured for the entire beach, under the exclusive jurisdiction of the Nassau County Commission must be considered. The peak period must be determined as measured by the Department of Natural Resources formula as published in the Administrative Weekly in May 1989, except that

70 percent of peak user must be the standard. Those sites which are permanent on-beach parking sites must be included in the determination.

Section 2. Any resort area parcels which are developed and which are not contiguous must have lanes of traffic connecting with defined lanes identified by traffic-path indicators.

Section 3. A motorized tram system is hereby authorized on the Atlantic Ocean beaches within the jurisdiction of Nassau County.

Section 4. This act shall take effect March 1, 1990.

. . . .

1. County Ordinance 89-23.

   
   

   1. Subsequent to the enactment of the Special Act, the Board enacted Ordinance 89-23, which provides as follows:

      
      

      ORDINANCE 89 - 23

      
      

      AN ORDINANCE DETERMINING, PURSUANT TO RULE

      16B-45, FLORIDA ADMINISTRATIVE CODE, THAT LESS THAN 50 PERCENT OF THE PEAK USER DEMAND FOR OFF BEACH PARKING IS AVAILABLE; PROVIDING AN EFFECTIVE DATE.

      
      

      WHEREAS, Paragraph 161.58(2)(b), Florida Statutes, mandates that vehicular traffic be prohibited from coastal beaches except where a local government has determined by October 1, 1989, in accordance with the rules of the Department of Natural Resources that less than fifty percent (50%) of the peak user demand for off-beach parking is available; and

      
      

      WHEREAS, the Board of County Commissioners had determined that it is in the public interest to preserve the maximum access to the public beaches of Nassau County; and

      
      

      WHEREAS, the public was in jeopardy of losing access to a majority of beaches in Nassau County unless action was taken by the Board on behalf of the citizens of the County in order to preserve the citizens' right to their beaches; and

      
      

      WHEREAS, the Legislature adopted Senate Bill 1577, which is a local bill pertaining to vehicular access to the Nassau County beaches; and

      
      

      WHEREAS, the Department of Natural Resources has adopted Rule 16B-47, Florida Administrative Code; and

      
      

      WHEREAS, pursuant to Rule 16B-47.004, the Board of County Commissioners desires to continue to authorize vehicular traffic on its County beaches.

      
      

      NOW, THEREFORE, BE IT ORDAINED this 12th day

      of September, 1989, by the Board of County Commissioners of Nassau County, Florida, as follows:

      SECTION 1. TITLE

      
      

      This Ordinance shall be known as the "Authorized Beach Vehicular Traffic

      Ordinance".

      
      

      SECTION 2. INVENTORY OF AVAILABLE OFF-BEACH PARKING

      
      

      The following is an inventory of the available off-beach parking within the Board of County Commissioners of Nassau County's jurisdiction:

      
      

      1. Pasco access - 10 parking spaces

      2. Peters Point Park - 200 parking spaces

      3. Scott Road - 50 parking spaces

      4. Burney Park - 200 parking spaces

      5. Dunes Club access - 30 parking spaces

      6. South End Ramp - 25 parking spaces TOTAL OFF-BEACH PUBLIC PARKING SPACES 515

      SECTION 3. PEAK USER DEMAND FOR OFF-BEACH PARKING

      
      

      The Board of County Commissioners has determined from the Kings Bay Area Recreation Master Plan dated March 8, 1985, that:

      
      

      1. In 1985, the study indicated that peak day on-beach demand was 4,775 people per day. The study further indicated that 1,640 parking spaces would be needed for the year 1985.

      2. The study further projected that in 1990 the peak day beach users would be 5,669 and require 1,995 parking spaces.

      3. The study further indicates that in the year 2000 the peak day beach users would be 7,487 and require 2,602 parking spaces.

      4. The above represents peak day beach users and off-beach parking spaces required from Sadler Road to the South End of the island.

      
      

      SECTION 4. AVAILABLE PERCENTAGE OF PEAK USER DEMAND FOR OFF-BEACH PARKING

      
      

      The Board of County Commissioners has determined, based upon the above referenced study, that there is less than fifty percent (50%) of the peak user demand for off-beach parking available and, as a result, the Board hereby authorizes vehicular traffic to continue to utilize the County beach areas within its jurisdiction. Commencing March 1, 1990, the county beach areas available to vehicular traffic shall be set forth in the Special Act referred to as Senate Bill 1577.

      SECTION 5. EFFECTIVE DATE

      
      

      This Ordinance shall take effect upon being filed in the Secretary of State's office.

      . . . .

      
      

2. Amelia Island Company v. Nassau County, Florida.

1. Despite the enactment of the Special Act and Ordinance 89-23, some of the Petitioners were not satisfied because vehicular traffic continued along the beaches in front of their property. Consequently, a number of the Petitioners, including Amelia Island Company, brought an action for declaratory judgment against the Board in the Circuit Court, Fourth Judicial Circuit in and for Nassau County, Case No. 90-397.

   
   

2. Parking was only authorized by the Special Act and Ordinance 89-23 on beaches fronting undeveloped property. Parking was not authorized on beaches fronting developed property such as the property of most of the Petitioners. Those Petitioners which were involved in the litigation in the Circuit Court were interested in insuring that vehicles were not allowed to drive along the beach in front of their developed areas in order to access the beach in front of undeveloped areas.

   
   

3. On February 1, 1991, the Circuit Court entered a Final Judgment in Case No. 90-397 (hereinafter referred to as the "Final Judgment"), and another related case which had been consolidated with it. Among other things, the Court concluded in the Final Judgment, the following:

   
   

   1. Section 161.58, Florida Statutes, "prohibits vehicular traffic on all beaches in the State of Florida except where the local government authorizes such traffic and determines that 'less than 50% of the peak user demand for off- beach parking is available.'"

      
      

   2. The Special Act "authorizes vehicular traffic on beaches within the exclusive jurisdiction of Nassau County." [Emphasis added]. The Court further stated:

      
      

      Senate Bill 1577 [Chapter 89-455, Laws of Florida], creates an exception for beaches under the exclusive jurisdiction of Nassau County by authorizing parking in certain areas and directing the creation of lanes of traffic on its beaches. It goes without saying that for one to use the parking areas on the beaches designated by the legislature, one must be able to drive. . . . The Court must conclude that Senate Bill 1577, by inference and implication authorizes vehicular traffic on the beaches within the exclusive jurisdiction of Nassau County. As a result, it conflicts with Chapter 161, Florida Statutes, and the Special Act takes precedence. Consequently, even if the

      Ordinance is invalid, Senate Bill 1577 authorizes vehicular traffic on the beaches within the exclusive jurisdiction of Nassau County.

      
      

   3. Ordinance 89-23 "permits vehicular traffic within the exclusive jurisdiction of Nassau County." [Emphasis added].

      
      

   4. Ordinance 89-23 was enacted consistent with the exception against vehicular traffic on coastal beaches of Section 161.58, Florida Statutes. Ordinance 89-23 is valid.

   
   

4. As a result of the Final Judgment, beach driving was still permitted on Nassau County beaches that fronted developed and undeveloped property. The Final Judgment did not specifically address the beach of the AISRA. In fact, the Final Judgment is expressly limited to beaches "within the exclusive jurisdiction of Nassau County."

   
   

5. The Final Judgment was appealed to the District Court of Appeal, First District. The District Court reversed the Final Judgment in part and affirmed it in part. Amelia Island Company v. Nassau County, 585 So.2d 1061 (Fla. 1st DCA 1991). In pertinent part, the District Court concluded the following:

   
   

   In sum, the trial court correctly found that Nassau County Ordinance 89-23 is valid, but the final judgment is in error to the extent that it interprets the ordinance and SB 1577 as authorizing unrestricted vehicular traffic over the entire beach. Instead, the county beach areas available to vehicular traffic

   . . . include only areas reasonably necessary to permit use of all specified beach parking in the manner permitted under the terms of the special act. Accordingly, the final judgment is affirmed in part, reversed in part, and remanded for entry of judgment in conformity with this opinion.

   
   

   Amelia Island Company, 585 So.2d at 1064.

   
   

6. On April 28, 1992, the Circuit Court entered a Final Judgment (hereinafter referred to as the "Final Judgment on Remand"), on remand from the District Court. Among other things, the Final Judgment on Remand lists those areas "on the beaches within the jurisdiction of Nassau County" where driving is prohibited. No reference to the AISRA is contained in the listing.

   
   

7. There is a relatively large area of undeveloped privately-owned land north of the AISRA and south of the land owned by some of the Petitioners. As a result of the Special Act and Ordinance 89-23, parking is allowed on the beach bounding this undeveloped property. As a result of the Final Judgment on Remand, vehicular traffic was authorized to travel to the undeveloped property beach. Such access was available, however, by traveling around the southern tip of Amelia Island through the AISRA. Consequently, vehicular traffic would not be allowed on the beaches fronting the property of the Petitioners (other than the Board) so long as beach driving is allowed through the AISRA.

8. The Final Judgment on Remand, however, recognized that it was possible that beach driving could be prohibited in the AISRA despite Ordinance 89-23 and the Special Act. Although the Circuit Court and District Court did not specifically construe section 1(3)(c) of the Special Act, the Final Judgment on Remand includes the following reference to the southern end of Amelia Island:

   
   

   6. In the event the access to the south end is closed to public use by any state or federal law or regulation (and for so long as such access is closed), access to the parking areas permitted by Section 1(3)(c) of the Senate Bill will be permitted from the Lewis Street access south to the southerly end of Amelia Island. In addition, in the event any state or federal law or regulation closes or limits the access to the south end of any part of a twenty-four hour period, then during such time, access to the south end will be permitted from the Lewis Street south (unless such closure or limitation is applicable to all the beaches under the jurisdiction of Nassau County), in accordance with the provisions of Senate Bill 1577.

   
   

9. Recognizing that beach driving could be prohibited in the AISRA, which would in turn prevent access to beaches of the privately-owned undeveloped tracts of property immediately to the north of the AISRA, the Final Judgment on Remand recognized that beach driving would have to be allowed from north of the privately-owned undeveloped tracts of property. The only northerly access to the beaches of the undeveloped privately-owned property is a road located north of the property owned by Petitioners (excluding Nassau County). Consequently, beach traffic would have to travel along the beach of the Plantation to reach the undeveloped privately-owned property if beach driving were prohibited in the AISRA.

   
   

   1. Powers and Duties of the Division; The General Prohibition Against Driving and Parking in State Parks.

      
      

10. Section 258.004, Florida Statutes, sets out, in general, the duties of the Division as follows:

    
    

    258.004 Duties of division.-

    1. It shall be the duty of the Division of Recreation and Parks of the Department of Natural Resources to supervise, administer, regulate, and control the operation of all public parks, including all monuments, memorials, sites of historic interest and value, sites of archaeological interest and value owned, or which may be acquired, by the state, or to the operation, development, preservation, and maintenance of which the state may have made or may make contribution or appropriation of public funds.

    2. The Division of Recreation and Parks shall preserve, manage, regulate, and protect all parks and recreational areas held by the

    state and may provide these services by contract or interagency agreement for any water management district when the government board of a water management district designates or sets aside any park or recreation area within its boundaries.

    
    

11. In order to implement the Division's responsibilities pursuant to Chapter 258, Florida Statutes, the Department enacted Chapter 16D-2, Florida Administrative Code.

    
    

12. Section 258.007, Florida Statutes, sets out the power of the Division to adopt rules. In relevant part, the Division is given the following rule- making power:

    
    

    (2) The division shall make and publish such rules and regulations as it may deem necessary or proper for the management and use of the parks, monuments, and memorials under its jurisdiction, and the violation of any of the rules and regulations authorized by this section shall be a misdemeanor and punishable accordingly.

    
    

13. Pursuant to the authority and duties assigned to the Division by Chapter 258, Florida Statutes, the Department has adopted rules governing vehicles and traffic on lands within the Department's jurisdiction, including state recreation areas such as the AISRA. Rule 16D-2.002, Florida Administrative Code. See also Rule 16D-2.001, Florida Administrative Code.

    
    

14. In particular, the Department has provided the following with regard to driving:

    
    

    1. Restriction to Roads. No person shall drive any vehicle on any area except designated roads, parking areas, or other such designated areas.

       
       

       Rule 16D-2.002(4), Florida Administrative Code.

       
       

15. Pursuant to this rule, driving is not allowed anywhere in a state recreation area except to the extent specifically designated by the Division.

    
    

16. With regard to parking, the Department has provided the following:

    
    

    1. Parking. All vehicles shall be parked only in established parking areas or in such other areas and at such time as the Division may designate.

    
    

    Rule 16D-2.002(5), Florida Administrative Code.

    
    

17. Pursuant to this rule, parking is not allowed anywhere in a state recreation area except to the extent specifically designated by the Division.

    
    

18. The evidence failed to prove that Rules 16D-2.002(4) and (5), Florida Administrative Code, are invalid or otherwise not applicable in these cases.

19. Rules 16D-2.002(4) and (5), Florida Administrative Code, apply to the AISRA. As evidenced in findings of fact 29, 57 and 59, following the acquisition and lease of AISRA to the Division, the Division (and, therefore, the Department) failed to totally enforce Rules 16D-2.002(4) and (5), Florida Administrative Code. Instead, the Division allowed most of the historical beach activities, including beach driving and parking, to continue despite the general prohibition against driving and parking unless otherwise designated by the Department pursuant to Rules 16D-2.002(4) and (5), Florida Administrative Code.

    
    

20. In effect, by failing to enforce Rules 16D-2.002(4) and (5), Florida Administrative Code, the Division authorized driving and parking in the AISRA without taking any action to formally "designate" authorized parking or driving areas as contemplated by Rules 16D-2.002(4) and (5), Florida Administrative Code.

    
    

    1. The Department's Subsequent Decision to Enforce Rules 16D-2.002(4) and (5), Florida Administrative Code.

       
       

21. In part, because of the fact that the AISRA was a satellite of Talbot Island State Geo Park, Robert Joseph, the Park Manager, did not take any action to totally enforce the ban of Rules 16D-2.002(4) or (5), Florida Administrative Code, on beach parking and driving in the AISRA, when the AISRA was first created.

    
    

22. Mr. Joseph's decision was also based, in part, on the fact that such activities had historically been allowed. Therefore, Mr. Joseph was concerned about the impact that enforcement of the rules would have on the public.

    
    

23. Mr. Joseph did take action to enforce the prohibitions of the rules on the dunes of the AISRA and in areas covered by vegetation in the AISRA.

    
    

24. Mr. Joseph believed that the issue of beach driving and parking would have to be looked at closely in the future.

    
    

25. In subsequent years, after the services of environmental specialists of the Department became available to evaluate the AISRA, the rules banning parking and driving in state parks were enforced in the AISRA to the extent that it appeared that shore bird nesting areas were being negatively impacted by driving and parking.

    
    

26. Eventually, Mr. Joseph became convinced that the ban on parking and driving of Rules 16D-2.002(4) and (5), Florida Administrative Code, needed to be enforced throughout the AISRA. Mr. Joseph made this decision based upon the following general observations:

    
    

    1. Driving on the beach of the AISRA had been increasing since the Department's acquisition of responsibility for the AISRA, further endangering the resources of the AISRA; and

       
       

    2. There was an increase of safety hazards as a result of the increased vehicular activity.

    
    

27. In light of Mr. Joseph's fear that the proposed enforcement of the Department's rules banning parking and driving in the AISRA would be controversial, Mr. Joseph decided to make a recommendation to his supervisors

    that beach driving be prohibited in order to allow their input. Mr. Joseph recommended an immediate and total ban on all beach driving.

    
    

28. Mr. Joseph's recommendation was ultimately reviewed by the District Manager for the district of the Division in which the AISRA is located, the Assistant Division Director, the Division Director and the Department's Policy Coordinating Committee (hereinafter referred to as the "PCC"). Among those serving on the PCC were the Assistant Executive Director of the Department, Deputy Assistant Executive Director of the Department and the Director of the Division. The recommendation was also reviewed by the Chief of the Bureau of Natural and Cultural Resources of the Department.

    
    

29. The PCC is an advisory committee which considers various issues which the Department must confront. The PCC makes recommendations to the Executive Director of the Department concerning a variety of policy decisions.

    
    

30. After considering Mr. Joseph's recommendation at a meeting of the PCC on July 22, 1991, the PCC adopted the following:

    
    

    Amelia Island State Recreation Area

    Beach driving will be phased out beginning with a night driving ban effective January 1, 1992 and ending with a total ban on April 1, 1992. The status and legal implications of Chapter 89-445, Laws of Florida, will be investigated and clarified as it relates to driving on the island.

    
    

31. Ultimately, Mr. Joseph's recommendation, as modified by the PCC, was reviewed, further modified and accepted by the Executive Director of the Department.

    
    

    1. Implementation of the Department's Decision to Enforce Rules 16D-2.002(4) and (5), Florida Administrative Code.

    
    

32. Mr. Joseph was ultimately informed that he should prohibit beach driving in the AISRA in the manner ultimately explained on the Information Sheet at issue in this proceeding.

    
    

33. On or about April 1, 1992, Mr. Joseph caused signs to be posted in the AISRA notifying the public of the Department's decision concerning beach driving and parking (hereinafter referred to as the "Signs"). It was indicated on the Signs, when and where driving and parking on the beach of the AISRA was allowed and not allowed.

    
    

34. The Signs were intended to notify the public that there were two designated parking areas in the AISRA. One parking area was designated at the southwestern edge of the AISRA adjacent to Highway A1A. The other parking area was designated at the northeast edge of the AISRA on the Atlantic ocean side of the AISRA.

    
    

35. The Signs were also intended to notify the public that driving on the beach was restricted from April 1 to October 31, 1992. The Signs indicated that between April 1 to October 31, 1992, driving was not allowed south of the two designated parking areas.

36. Although couched in terms of a restriction, the Signs also have the effect of designating where and when vehicular traffic is allowable in the AISRA as contemplated by Rules 16D-2.002(4) and (5), Florida Administrative Code.

    
    

37. Subsequent to placing the Signs in the AISRA, Mr. Joseph became concerned that there was confusion over exactly what the Signs allowed and prohibited. Consequently, Mr. Joseph decided to distribute the Information Sheet in an effort to better inform the public of what was acceptable in the AISRA.

    
    

38. The Information Sheet (without the map that was attached thereto) provided the following:

    
    

    AMELIA ISLAND STATE RECREATION AREA BEACH ACCESS INFORMATION SHEET

    
    

    DNR's policy to regulate beach driving is clearly established. The Division of Recreation and Parks (DRP), with management authority for Amelia Island State Recreation Area (AISRA), is charged with the multiple tasks of providing maximum access for recreational pursuits with protection of Florida's natural values and rare and fragile resources.

    
    

    Beginning April 1, 1992, and continuing until October 31, 1992, a seasonal program of beach access will prohibit vehicular beach access to the southernmost tip of Amelia Island within AISRA. Pedestrian access to the south tip is encouraged during this period. Vehicular parking will be allowed during this period from AISRA boundaries to signs posted on the beach. Access to, and parking on the beach in these areas will be allowed on the hard sand beach area below the high tide line. No driving or parking will be allowed above the high tide line. The entire beach will be closed to parking and driving during high tide and after sunset.

    
    

    The seasonal program of beach access will continue until October 31, 1992, whereupon beach driving and parking will again be permitted on the entire beach within AISRA below the high tide line.

    
    

    Absence of vehicles from the south tip will further protect one of only three designated Critical Wildlife Areas (CWA) in Northeast Florida. Several listed species utilize the Amelia Island CWA, including american oystercatchers and the threatened least tern. During nesting season, park visitors should avoid walking within a 100 yard perimeter of the designated CWA. Adult birds must remain

    on the nest during the day to protect eggs and hatchlings from the intense heat from the

    sun. Even temporary abandonment may cause the eggs to literally bake. The boundaries of the CWA will be designated by red and white nesting area signs.

    
    

    The program will improve nesting habitat for marine turtles. The absence of artificial lights, and vehicular traffic will combine with the natural beach profile to enhance nesting.

    
    

    Amelia Island State Recreation Area now offers a recreational experience available nowhere else on Amelia Island. The ability to walk

    a stretch of the island which is undeveloped, pristine, and un-impacted, with a chance to view native wildlife that has been excluded elsewhere to the brink of extinction. For more information, please contact the Talbot Islands State Park Ranger Station on Little Talbot, or call (904) 251-2320.

    
    

    SUMMARY OF RESTRICTIONS

    (April 1, 1992 - October 31, 1992)

    
    

    • No driving on the beach after sunset.

    • No driving on the beach at high tide.

    • Driving allowed on hard sand beach only. (below previous high tide line)

    • See attached map for authorized parking areas.

    
    

    Petitioners' exhibit 2 and Respondent's exhibit 1.

    
    

39. The Information Sheet was distributed to persons entering the AISRA.

    
    

40. Although the Signs and the Information Sheet are limited to a particular period of time, the evidence established that the decisions of the Department evidenced by the Signs and the Information Sheet will apply to future years also.

    
    

41. The parties have characterized the action of the Department evidenced on the Signs and in the Information Sheet as a restriction on parking and beach vehicular traffic. Because driving and parking on the beach has historically continued in the AISRA, from a practical standpoint, the Signs and Information Sheet do impose a restriction. Technically and legally, however, without the designation of appropriate parking areas on the Signs and the Information Sheet, parking and vehicular traffic on the beach of the AISRA was already prohibited or restricted in the AISRA pursuant to Rules 16D-2.002(4) and (5), Florida Administrative Code.

    
    

42. The Signs and Information Sheet constitute a designation by the Department, pursuant to Rules 16D-2.002(4) and (5), Florida Administrative Code, of when and where driving and parking is permitted in the AISRA and not a ban on driving or parking.

43. The Signs and Information Sheet apply to any person who uses the AISRA. It has no application to other areas operated or managed by the Division.

    
    

44. The Signs and Information Sheet inform the public of two separate decisions of the Department. The Petitioners have challenged the Signs and Information Sheet to the extent that they inform the public of the Department's first decision: the decision to begin enforcement of the ban on driving and parking in state parks set out in Rules 16D-2.002(4) and (5), Florida Administrative Code. The Petitioners have not, however, challenged the Signs and Information Sheet to the extent that they inform the public of the Department's second decision: the decision to designate the acceptable areas and times for beach vehicular traffic and parking in the AISRA.

    
    

45. By enforcing the prohibition against beach driving in the AISRA, vehicular traffic is no longer able, at least from April 1 to October 31 of each year, to access the beaches of the undeveloped, privately-owned tracts of land north of the AISRA from the south. Therefore, pursuant to the Final Judgment on Remand, vehicular traffic is allowed to travel from the beach access road located to the north of the property of the Petitioners (other than the Board), to the south on the beaches running through the Petitioners' property.

    
    

46. The Department has conceded that it has not followed the rule making procedures of Section 120.54, Florida Statutes, to adopt the Signs or the Information Sheet, and the policies evidenced therein, as a rule.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

47. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.535, Florida Statutes (1992 Supp.), and Section 120.56, Florida Statutes (1991).

    
    

    1. Burden of Proof.

       
       

48. The burden of proof in this proceeding was on the Petitioners. See Adam Smith Enterprises v. Department of Environmental Regulation, 553 So.2d 1260, (Fla. 1st DCA 1990); and Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979). In determining whether the Petitioners have met their burden of proof, the general rule 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" has been recognized. See Department of Professional Regulation v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984).

    
    

    1. Standing.

       
       

49. Sections 120.535(2)(a), Florida Statutes (1992 Supp.), provides, in pertinent part, the following:

    
    

    Any person substantially affected by an agency statement may seek an administrative determination that the statement violates subsection (1).

50. Section 120.56(1), Florida Statutes, provides, in pertinent part, the following:

    
    

    (1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

    
    

51. In order to conclude that a person is a "substantially affected" person, it must be proved:

    
    

    1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a . . . hearing, and 2) that his substantial injury is of a type or nature the proceeding is designed to protect.

    
    

    Florida Society of Ophthalmology v. Board of Optometry, 532 So.2d 1279, 1285 (Fla. 1st DCA 1988), rev. denied, 542 So.2d 1333 (1989). See also Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981).

    
    

52. Additionally, in order for an association to be considered a "substantially affected" person, the association must also prove the following:

    
    

    1. . . . a substantial number of its members, although not necessarily a majority, are substantially affected by the challenged rule;

    2. the subject matter of the proposed rule is within the association's general scope of interest and activity; and

    3. the relief requested is of a type appropriate for a trade association to receive on behalf of its members.

    
    

    Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So.2d 753 (Fla. 1st DCA 1982). See also Florida Homebuilders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982).

    
    

53. Based upon the evidence presented in these cases, the Board has proved that it is a "substantially affected" person.

    
    

54. The other Petitioners have also proved that they have standing to participate in this proceeding. As a result of the decision to enforce the restriction on beach driving during part of the year on the beach of the AISRA and the interpretation of the Special Act and Ordinance 89-23 by the Courts, vehicular traffic is being allowed along the beach which the members of the Petitioners which are associations and the Petitioners who are property owners use. They are, therefore, "substantially affected."

    
    

55. The evidence also supports a finding that the Petitioners that are associations meet the tests of Florida Home Builders Association.

    1. The Petitioners' Challenges.

       
       

56. Section 120.535, Florida Statutes (1992 Supp.), provides that substantially affected persons may challenge any agency statement that constitutes a "rule" as defined in Section 120.52(16), Florida Statutes, which the agency has not adopted by the rulemaking procedures of Section 120.54, Florida Statutes, unless rulemaking is not "feasible" or "practicable." In case number 92-4812RU, the Petitioners have alleged that the agency statement evidenced by the Signs and the Information Sheet constitutes a "rule" to the extent that the Department has restricted beach driving and parking in the AISRA. The Petitioners have also alleged that rulemaking was feasible and practicable and that the Department has not adopted the "rule" pursuant to Section 120.54, Florida Statutes.

    
    

57. Section 120.56, Florida Statutes (1991), authorizes a substantially affected person to seek an administrative determination that any agency rule is an "invalid exercise of delegated legislative authority" as those terms are defined in Section 120.52(8), Florida Statutes. An "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, in pertinent part, as follows:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceed its grant of rulemaking authority . . . ;

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented . . . ;

    . . . .

    (e) The rule is arbitrary or capricious.

    
    

58. In case number 92-4913RX, the Petitioners have alleged that the Signs and the Information Sheet are a "rule" to the extent that the Department has restricted beach driving and parking in the AISRA. The Petitioners have also alleged that the Department's actions constitutes an invalid exercise of delegated authority pursuant to the definition of Section 120.52(8), Florida Statutes, quoted, supra.

    
    

59. The challenges filed by the Petitioners in these cases are limited by the terms of the petitions they filed to a challenge to the "restrictions" on beach driving and parking in the AISRA which the Petitioners have argued have been implemented by the Department. For example, in the petition filed in case number 92-4912RU, the following allegation has been made:

    
    

    1. In December 1991 and March 1992, the Department issued its Amelia Island State Recreation Area Beach Access Information Sheet and the accompanying map. According to the Information Sheet, "DNR's policy to regulate

       beach driving is clearly established." In furtherance of this policy, the Information Sheet and map establish a "seasonal program of beach access [to] prohibit vehicular beach access to the southernmost tip of Amelia Island within [the Amelia Island State Recreation Area]." Pursuant to the Information Sheet and map, on-beach parking and vehicular access is prohibited in portions of the southernmost area of the Amelia Island State Recreation Area from April 1 to October 31, 1992. The Information Sheet and map were not adopted in accordance with the rulemaking procedures of Section 120.54, Florida Statutes.

    2. Section 120.52(16), Florida Statutes, provides that a rule is "each agency statement of general applicability that implements, interprets, or prescribes law or policy." The Information Sheet and map are statements by an agency, meant to apply to all members of the public who may wish to obtain access to the area now off-limits to vehicular traffic. In fact, the Information Sheet encourages visits by pedestrians to the disputed area. By its own terms, the Information Sheet and map, by restricting vehicular access and encouraging pedestrian access to the beach, are intended to "implement, interpret or describe" the Department's "clearly established" "policy to regulate beach driving."

    
    

60. The Petitioners have not challenged any policy decision of the Department evidenced in the Signs and Information Sheet concerning a designation of the appropriate driving times or areas or the appropriate parking areas in the AISRA.

    
    

61. Prior to the enactment of Section 120.535, Florida Statutes (1991), during the 1991 Legislative Session, a policy of an agency which constituted a "rule" as defined in Section 120.52(16), Florida Statutes, and which the agency had not adopted pursuant to the rulemaking procedures of Section 120.54, Florida Statutes, could be challenged pursuant to Section 120.56, Florida Statutes, as an "invalid exercise of delegated legislative authority". Section 120.535, Florida Statutes, now specifically provides for the manner in which an unpromulgated "rule" of an agency may be challenged. It is, therefore, questionable whether a challenge to an unpromulgated "rule" may also be instituted pursuant to Section 120.56, Florida Statutes.

    
    

62. Although it appears that the Legislature now intends that Section 120.535, Florida Statutes, is the exclusive remedy to challenge an unpromulgated agency "rule", the Petitioners challenge pursuant to Section 120.56, Florida Statutes, in case number 92-4913RX will not be dismissed. The issue to be decided in that case, however, will be limited to whether the Department's policy as evidenced by the Signs and the Information Sheet constitutes a "rule" and, if so, whether the Department's "rule" has been promulgated pursuant to Section 120.54, Florida Statutes. Whether the "rule" is also an invalid

    exercise of delegated legislative authority as defined in Section 120.52(8)(b),

    (c) or (e), Florida Statutes, as alleged by the Petitioners will not be decided.

    
    

63. Additionally, in light of the conclusion that the agency statement challenged in these cases is not a "rule", it is not necessary to reach the allegations of case number 92-4913RX that the agency statement is an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(b),

    (c) or (e), Florida Statutes.

    
    

    1. What Constitutes a "Rule"?

       
       

64. Section 120.52(16), Florida Statutes (1992 Supp.), defines the term "rule", in pertinent part, as follows:

    
    

    (16) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. . . .

    
    

    1. Do the Signs and the Information Sheet Constitute a Statement of General Applicability?

       
       

65. The Signs and Information Sheet evidence an agency statement of general applicability. Although the practical impact of the Signs and Information Sheet is limited to a specific geographic area of the State of Florida, the evidence proved that the Signs and Information Sheet apply to all those who enter the AISRA.

    
    

    1. Do the Signs and the Information Sheet Constitute an Agency Statement of Policy?

       
       

66. Whether the agency statement evidenced on the Signs and Information Sheet constitutes a statement that "implements, interprets, or prescribes law or policy" is a more difficult question. The difficulty, however, has been caused, at least in part, by the characterization by the parties of the action of the Department that is being challenged in these cases. The evidence, however, proved that the Signs and Information Sheet contain at least two separate decisions of the Department: (a) a decision to begin enforcement of the ban on driving and parking in state parks set out in Rules 16D-2.002(4) and (5), Florida Administrative Code; and (b) a decision to designate the acceptable areas and times for beach vehicular traffic and parking in the AISRA.

    
    

67. The Petitioners' argument that the "restriction" on beach driving and parking in the AISRA evidenced in the Signs and Information Sheet represents an agency statement of policy which constitutes a "rule" is based partly upon the fact that beach driving and parking in the AISRA had not been prohibited prior to the formation of the AISRA and the fact that after the AISRA was formed, the Department did not totally stop beach driving and parking in the AISRA.

68. The actions of the Department in reviewing and modifying Mr. Joseph's recommendation that beach driving and parking be banned add to the confusion.

    
    

69. The Petitioners' characterization of the actions of the Department, however, fail to consider Rules 16D-2.002(4) and (5), Florida Administrative Code. Pursuant to these presumably valid rules, beach driving and parking is already restricted in the AISRA. Pursuant to these rules, no beach driving or parking is allowed except to the extent that the Division specifically designates acceptable areas for vehicular traffic and parking.

    
    

70. The fact that beach driving and parking has been historically allowed in the AISRA even by the Division does not eliminate the unchallenged, lawfully adopted rules of the Department. The fact that beach driving and parking has been tolerated merely means that the Department has failed to enforce its rules. The Petitioners have cited no case which indicates that the enforcement of a rule which an agency has not always enforced requires that the agency again adopt the rule pursuant to Section 120.54, Florida Statutes.

    
    

71. The fact that the Department considered Mr. Joseph's recommendation also does not change the character of the Department's actions with regard to restricting beach parking and driving. Most of the persons reviewing the recommendation did not view the recommendation as a legal issue. They reviewed the recommendation in light of the practical consequences of changing a historically accepted public practice. Additionally, the action of the Department in reviewing Mr. Joseph's recommendation may also be viewed, not as a review of a question of restricting parking and driving, but also as a determination of where and when beach driving and parking is to be "designated" by the Department as required by Rules 16D-2.002(4) and (5), Florida Administrative Code.

    
    

72. To the extent that the Department notified the public through the Signs and the Information Sheet as to the "restrictions" on beach driving and parking in the AISRA, the Signs and Information Sheet do not constitute an agency statement that "implements, interprets, or prescribes law or policy". The Signs and Information Sheet only constitute an effort by the Division to inform the public of the intent of the Division to enforce existing law or policy, Rules 16D-2.002(4) and (5), Florida Administrative Code. Therefore, to the extent that the Signs and Information Sheet inform the public of the restrictions on beach driving and parking, they do not constitute a "rule".

    
    

73. Whether the Department's second policy decision concerning designated parking areas and driving times and areas evidenced by the Signs and the Information Sheet constitutes a "rule" or merely a management decision, as argued by the Department, need not be decided. The challenge filed by the Petitioners in these cases is limited by the terms of the petitions they filed to a challenge to the "restrictions" on beach driving and parking which the Petitioners have argued have been implemented by the Department. The Petitioners have not challenged the Department's action to the extent that the Signs and Information Sheet evidence a policy decision of the Department concerning the appropriate driving times or areas or the appropriate parking areas. Therefore, whether such a policy decision of the Department constitutes a "rule" need not, and should not, be decided in these cases. To reach such an issue would be to reach an issue not raised, or specifically addressed, by the parties.

    1. Is Rulemaking Feasible and Practical?

    
    

74. Having concluded that the agency statement evidenced in the Sign and Information which the Petitioners have challenged in these cases does not constitute a "rule" within the meaning of Section 120.52(16), Florida Statutes, it is not necessary to determine whether rulemaking was feasible or practical for the Department.

    
    

    I. The Special Act.

    
    

75. The Petitioners have suggested that the Special Act carves out an exception to Section 161.58(2), Florida Statutes, which authorizes vehicular traffic and parking in the AISRA absent the adoption of a rule pursuant to Section 120.54, Florida Statutes. This argument is rejected.

    
    

76. Section 161.58, Florida Statutes, the Special Act and Chapter 258, Florida Statutes, must all be considered together. Section 161.58, Florida Statutes, and the Special Act are intended to govern driving and parking on Florida beaches which are under the jurisdiction of the coastal counties of Florida. Section 161.58, Florida Statutes, prevents a local government from allowing beach driving on beaches over which the local government has jurisdiction unless the conditions of Section 161.58, Florida Statutes, are met. Section 161.58, Florida Statutes, is not, however, intended to prohibit the carrying out of the Department's duties and responsibilities over the state parks, including those with coastal beaches, contemplated by Chapter 258, Florida Statutes.

    
    

77. The Special Act was enacted to create an exception to Section 161.58, Florida Statutes. In enacting the Special Act, the Legislature evidenced an intent to allow parking on undeveloped beaches, but only those within the jurisdiction of Nassau County.

    
    

78. The Circuit Court's decision in the challenge to Ordinance 89-23, although it did not specifically deal with the issues involved in this proceeding, supports the conclusion that the Special Act is only intended to govern beaches over which Nassau County has jurisdiction. In the Final Judgment entered in that challenge, the Circuit Court stated the following:

    
    

    Senate Bill 1577 [Chapter 89-455, Laws of Florida], creates an exception for beaches under the exclusive jurisdiction of Nassau County by authorizing parking in certain areas and directing the creation of lanes of traffic on its beaches. . . . The Court must conclude that Senate Bill 1577, by inference and implication authorizes vehicular traffic on the beaches within the exclusive jurisdiction of Nassau County. As a result, it conflicts with Chapter 161, Florida Statutes, and the Special Act takes precedence. Consequently, even if the Ordinance is invalid, Senate Bill 1577 authorizes vehicular traffic on the beaches within the exclusive jurisdiction of Nassau County. [Emphasis added].

    
    

79. The provisions of subsection 1(3)(c) of the Special Act do raise a question as to whether the Legislature intended to authorize Nassau County to

    decide whether parking was to be allowed on part of the beach of the AISRA. Section 1(3)(c) of the Special Act includes the following pertinent language:

    
    

    (3) On-beach parking shall continue to be permitted in the following nonresort areas:

    . . . .

    (c) The southerly end of Amelia Island from the Nassau Sound side of to the developed resort area parcel on the Atlantic Ocean side.

    
    

80. A review of Petitioners' exhibits 26 and 27 reveals that a little less than half (approximately) of the beach of the AISRA is located from the southern tip of Amelia Island at Nassau Sound to a large undeveloped tract of land which runs from the northern border of the AISRA to the first developed property. Literally read, the portion of section 1(3)(c) of the Special Act quoted, supra, only describes a little less than half of the AISRA. Such a literal interpretation, however, would lead to an absurd result. First, such an interpretation would result in the Board being granted jurisdiction over a state park owned by the Trustees and for which the Department has already been assigned responsibility. Additionally, such an interpretation would result in the Board having such authority over only part of the beach of the AISRA. For what purpose would the Legislature authorize the Board to decide if parking should be allowed on the beach of the AISRA north of the southernmost tip of Amelia Island on the Atlantic Ocean side but not to determine whether parking should be allowed on the beach of the AISRA from the southern most tip of Amelia Island to Highway A1A? The undersigned can think of no such purpose and the evidence failed to prove that any such purpose would be fulfilled by such an interpretation.

    
    

81. Given the intent of the Legislature evidenced by Section 161.58, Florida Statutes, a consistent interpretation of intent in the Special Act, and the intent of Chapter 258, Florida Statutes, the only logical and consistent interpretation of the portion of section 1(3)(c) of the Special Act quoted, supra, is that the Board is authorized to determine whether parking should be allowed on the beach in front of those undeveloped tracts of land within the Board's jurisdiction which are located outside of the AISRA to the north of Nassau Sound. Such an interpretation would only authorize the Board to authorize beach parking on the undeveloped land north of the AISRA, consistent with the general Legislative intent of Section 161.58, Florida Statutes, and Chapter 258, Florida Statutes.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition for Administrative Determination of Failure to

Adopt Agency Statement Through Rulemaking and the Petition for Administrative Determination of Invalidity of Existing Rule are DISMISSED.

DONE AND ENTERED this 8th day of March, 1993, in Tallahassee, Florida.

LARRY J. SARTIN

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 8th day of March, 1993.

APPENDIX

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 rejected and the reason for their rejection have also been noted.

Petitioners' Proposed Findings of Fact

1. Accepted in 1-2 and hereby accepted.

2. Accepted in 66 and hereby accepted.

3. Accepted in 4-5 and 7.

4. Accepted in 6.

5. Accepted in 18. The first two sentences are not supported by the weight of the evidence.

6. See 33-34 and hereby accepted.

7. Accepted in 8.

8. Accepted in 9.

9. Accepted in 14 and hereby accepted.

10. Accepted in 14.

11. Accepted in 12.

12. Accepted in 10.

13. Accepted in 12.

14. Accepted in 11.

15. Accepted in 13.

16. Not supported by the weight of the evidence. The second sentence is only partly true. The Department's actions by themselves did not open the portion of the beach described. The Department's action concerning parking had no appreciable impact on this portion of the beach.

17. Not relevant or supported by the weight of the evidence.

18. Hereby accepted.

19. Accepted in 28 and 30.

20-28 Although these proposed findings of fact are generally true, they are not relevant to this proceeding.

1. Accepted in 19-20 and 27.

2. See 29.

3. Accepted in 20 and 24-25. But see 26.

4. The Department did not continue to provide beach driving and parking in the AISRA. Otherwise, this proposed finding is generally correct but not relevant. See 26.

5. See 26 and hereby accepted. 34 See 29 and 31-32.

1. Accepted in 31-32 and hereby accepted.

2. See 33.

3. Accepted in 34. With regard to the last two sentences, the Special Act speaks for itself. See 35.

4. Accepted in 35.

5. See 36.

6. Not supported by the weight of the evidence. The reference to the transcript (pages 55-56) is a reference to opening statements.

7. Accepted in 37-38.

8. See 39.

9. Accepted in 39 and hereby accepted.

10. Accepted in 39.

11. Hereby accepted. See 40.

12. Accepted in 41 and hereby accepted.

13. Accepted in 41 and hereby accepted.

14. Accepted in 41 and hereby accepted.

15. Accepted in 42 and hereby accepted. The last two sentences are not supported by the weight of the evidence.

16. See 44. The second sentence is not supported by the weight of the evidence.

17. The first sentence is not supported by the weight of the evidence. See 63-67. The Department's decision not to pursue rulemaking was also based upon the conclusion that rules prohibiting driving and parking already existed.

18. Accepted in 66.

19. Accepted in 67-72 and 76. 54 See 73-74.

55 Accepted in 81. The second sentence is not supported by the weight of the evidence.

56-61 Not relevant to this proceeding. Even if it were appropriate to entertain the issues of whether the challenged "rule" in case number 92-4913RX is an invalid exercise of delegated legislative authority pursuant to Sections 120.52(8)(b), (c) or (e), Florida Statutes, having concluded that the challenged agency action is not a "rule", it is not necessary to reach these issues.

1. Not supported by the weight of the evidence.

2. Hereby accepted.

3. Hereby accepted.

The Department's Proposed Findings of Fact

1. Accepted in 19.

2. Accepted in 19 and hereby accepted.

3. Accepted in 20-23.

4. Accepted in 20.

5. Accepted in 23-24.

6. Hereby accepted.

7. Accepted in 27.

8. Accepted in 61.

9 See 62-63.

1. See 61-62 and hereby accepted.

2. See 62.

12 See 63-64.

13 See 64-67.

1. Accepted in 1 and 46.

2. Accepted in 47.

3. Accepted in 77-78.

4. Accepted in 69-72.

5. Accepted in 73-74.

6. See 77.

7. Accepted in 74-75 and 70. 21-23 Not relevant.

COPIES FURNISHED:

William E. Williams, Esquire Rex D. Ware, Esquire

Robert D. Fingar Post Office Box 1794

Tallahassee, Florida 32302

Edwin A. Steinmeyer Assistant General Counsel Barrie J. Sawyer Assistant General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Mail Station #35

Tallahassee, Florida 32399-3000

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

Donald Duden

Acting Executive Director Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth Plante General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-004912RU

Orders for Case No: 92-004912RU