STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOARD OF COUNTY COMMISSIONERS ) OF ST. JOHNS COUNTY, FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 93-3842RU
)
BOARD OF TRUSTEES OF THE ) INTERNAL IMPROVEMENT TRUST FUND, )
)
Respondent. )
) BOARD OF COUNTY COMMISSIONERS ) OF ST. JOHNS COUNTY, FLORIDA, )
)
Petitioner, )
) CASE NOS. 93-3875RX
vs. ) 93-4533RP
)
DEPARTMENT OF ENVIRONMENTAL )
PROTECTION, )
)
Respondent. )
)
FINAL ORDER
On August 26, 1993, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Daniel J. Bosanko, Esquire
Assistant County Attorney St. Johns County
Post Office Box 1533
St. Augustine, Florida 32085-1533
For Respondent: Edwin A. Steinmeyer, Esquire
Barrie J. Sawyer, Esquire Assistant General Counsel
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES
The issues in these cases are: in Case No. 93-3875RX, whether F.A.C. Rule 16D-2.002(4)-(5) is an invalid exercise of delegated legislative authority; and, in Case No. 93-4533RP, whether the proposed amendment to F.A.C. Rule 18-20.004,
incorporating by reference the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), is an invalid exercise of delegated legislative authority. Both F.A.C. Rule 16D-2.002(4)-(5) and the proposed amendment to
F.A.C. Rule 18-20.004 have been cited by the Respondent, the Department of Environmental Protection (DEP), as authority for prohibiting driving motor vehicles on the Atlantic Ocean beaches in St. Johns County that are within the Guana River Marsh Aquatic Preserve (the Preserve).
(On August 24, 1993, the Petitioner voluntarily dismissed its petition in Case No. 93-3842RU, which attacked the Management Plan under Section 120.535, Fla. Stat. (Supp. 1992), as being an invalid unpromulgated rule. The dismissal was based on the Respondent's assurance that it was proceeding with the rule amendment challenged in Case No. 93-4533RP and that it would not enforce the provisions of the proposed amendment to F.A.C. Rule 18-20.004 to prohibit driving on the Atlantic Ocean beaches in the Preserve until the resolution of Case No. 93-4533RP. See the Preliminary Statement.)
PRELIMINARY STATEMENT
On July 8, 1993, the Petitioner, St. Johns County (the County) filed two proceedings at the Division of Administrative Hearings: (1) a "Section 120.535(2), Florida Statutes, Petition to Invalidate an Agency Policy Statement on the Grounds that it has not been Adopted as a Rule in Accordance with Section 120.54, Florida Statutes"; and (2) a "Section 120.56, Florida Statutes, Petition to Invalidate Portions of Rule 16D-2.002 Florida Administrative Code in that they are an Invalid Exercise of Delegated Authority in Relation to St. Johns County." The former was given Case No. 93-3842RU, and the latter was given Case No. 93-3875RX. Both were assigned to the undersigned hearing officer on July 15, 1993.
At the same time, the County filed with the Department of Environmental Protection a "Petition Challenging the Validity of Agency Action and Request for Formal Proceedings pursuant to Section 120.57(1), Florida Statutes."
A prehearing conference was conducted by conference telephone call on July 21, 1993. The parties advised that the Section 120.57(1) petition was in the process of being referred to the Division of Administrative Hearings and requested that all three cases be consolidated for final hearing on August 26- 27, 1993, at the Division of Administrative Hearings in Tallahassee. (The Section 120.57(1) case was referred later on July 21, 1993, and was given Division of Administrative Hearings Case No. 93-3970.) The parties' request was granted by entry of an Order Consolidating Cases, a Notice of Hearing, and a Prehearing Order (requiring prehearing conferences and a prehearing stipulation.)
On August 13, 1993, the County filed a "Section 120.54, Florida Statutes, Petition Challenging Proposed Amendment to Rule 18-20.004 Florida Administrative Code as an Invalid Exercise of Delegated Authority." The proposed amendment incorporated by reference the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), including the prohibition against driving on the Atlantic Ocean beaches in the Preserve. The proposed rule challenge also was assigned to the undersigned hearing officer and was given DOAH Case No. 93-4533RP.
Unopposed motions for leave to amend the petitions in the other cases, and an unopposed Motion to Consolidate Case No. 93-4533RP with the other cases, also were filed on August 13, 1993. On August 17, 1993, an Order Consolidating Cases and Granting Leave to Amend Petitions was entered.
On August 23, 1993, the County filed second motions for leave to amend its petitions in Case Nos. 93-4533RP and 93-3970. On the record of the final hearing, DEP stated that it had no objection, and the motions were granted.
On August 24, 1993, the County filed a voluntary dismissal of its petition in Case No. 93-3842RU. The dismissal was based on the DEP's assurance that it was proceeding with the proposed rule amendment challenged in Case No. 93-4533RP and that it would not enforce the provisions of the proposed amendment to F.A.C. Rule 18-20.004 to prohibit driving on the Atlantic Ocean beaches in the Preserve until the resolution of Case No. 93-4533RP.
At the final hearing, the parties had Joint Exhibits 1 and 2 admitted in evidence. Without objection, the County also had Petitioner's Exhibits 1 through 6 admitted in evidence. (Petitioner's Exhibit 2 was a videotape depicting a drive along the beach in question, which was viewed during the hearing.) Without objection, the DEP had Respondent's Exhibits 1 and 3 through
5 admitted in evidence. (Respondent's Exhibit 2 was not identified. It related to Case No. 93-3842RU, which was dismissed.) The County called three witnesses, and the DEP called one.
At the end of the presentation of the evidence, the parties ordered the preparation of a transcript of the final hearing and requested 20 days from the filing of the transcript in which to file proposed orders. The transcript was filed on September 9, making the proposed orders due by September 29, 1993.
Explicit rulings on the proposed findings of fact contained in the parties' proposed final orders may be found in the attached Appendix to Final Order.
FINDINGS OF FACT
The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned property. Title is held by the Board of Trustees of the Internal Improvement Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns County.
Within the boundaries of the Preserve is included the Guana River State Park (the Park). It, too, is state-owned. It is managed and operated by the Division of Recreation and Parks (the DRP) of the Department of Environmental Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are included within the boundaries of the Park.
The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in the Preserve is the area of the beach between mean high water and mean low water. The mean high water line is essentially the landward extent of the ocean at mean high tide; the mean low water line is essentially the landward extent of the ocean at mean low tide. When the tide is low, this entire area of the beach is exposed. It remains wet and, generally, relatively hard-packed during the time it is exposed. However, there are beds of "red shell" in this part of the beach that are softer. In the summer, this part of the beach averages approximately 50 feet in width. In the winter, when the waves and tides generally are higher, it is narrower.
In the Preserve, the mean high water line usually is indicated both by debris washed up during the highest tides and left on the beach and by a "shelf." This "shelf," made by the erosive action of the ocean waves during the highest tides and during storms, rises at an angle of approximately 45 degrees and can be from one to four or five feet high. Landward of this shelf is the
"dry sand" or "soft sand" beach, also sometimes referred to as the "upper beach." It extends landward from the mean high water line to the vegetation line, where the dunes start. Usually, some pioneer vegetation is found in the uppermost reaches of this part of the beach, forming what is called the "foredune" area of the beach.
The tides along the Atlantic Ocean beaches in the Preserve are semi- diurnal, i.e., there usually are two high tides and two low tides a day. These high and low tides last approximately one hour, and each day they occur approximately an hour later than they did the day before.
There are five beach access points with motor vehicle parking areas located along U.S. Highway A1A within the Preserve. Three are within the Park. There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five parking areas. There also is a current proposal for the addition of three more access points in the Park, with parking for a total of 340 vehicles, five beach bathhouses, and five pedestrian overpasses.
There are many other places where pedestrians can walk from A1A to the beaches, including 30 County-controlled access points. But there are no lawful parking areas adjacent to any of these other access points at this time, and parking on the right-of-way of A1A is prohibited.
Currently, the only lawful motor vehicle access to the Atlantic Ocean beaches in the Preserve is to the south of the Preserve. Prior to the agency action challenged in these proceedings, motor vehicles lawfully could be driven onto the beach at this access point and be driven north into the Preserve, so long as they remained below the mean high water line. A former access near the north end of the Preserve has been cordoned off. To leave the Preserve, motor vehicles would have to be turned around and driven back south to the same motor vehicle access point.
Due to the restricted access to the Atlantic Ocean beaches in the Preserve, not much use is made of those beaches. In comparison, beaches to the south are used much more heavily. Of the relatively few who use the motor vehicle access to the south and drive on the beach north through the Preserve, some ultimately use the beaches to picnic, swim, surf, beach-comb and similar activities; some probably just drive on the beach. There was no evidence quantifying the uses currently being made of the beaches in the Preserve.
In the past, homemade motor vehicles called "skeeters" were built with a light-weight chassis and over-sized wheels. They were used for driving on both the hard and soft areas of the beaches, as well as illegally in the dunes. This practice has been curtailed due to better enforcement of the prohibitions against driving in the dunes, a generally heightened environmental consciousness among the public, and prohibitions against driving the "skeeters" on public highways. Generally, there has been less driving on the beaches of the Preserve in recent years, although the practice persists at a reduced level.
At all times of the year, it sometimes is impossible to drive along the entire length of the beaches in the Preserve without driving on the soft sand area. This is especially true during the winter months when the waves and tides are higher and storms are more frequent. But even in the summer months, there are times when "red shell beds" in the "wet sand" part of the beach must be circumvented to avoid getting stuck. Especially when the tide is not at its lowest, the only way to avoid some of these "red shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on the tides, this may also be
necessary in order to turn a vehicle around on the beach. In many places, the "soft sand" area is not very wide, and it would be necessary under those circumstances to drive in the "foredune" area.
The times of the daily high and low tides can be obtained relatively easily by members of the public. But there is no assurance that all persons who would drive on the beaches would know the times of the tides. Nor is there any assurance that persons who drive the "wet sand" or "hard sand" part of the beaches at low tide also would plan to both start their beach drive and their return trip during low enough tides to be able to avoid driving on the "soft sand" part of the beach. For these and other reasons, it would be difficult, if not practically impossible, to effectively monitor beach driving throughout the Preserve and consistently enforce a restriction to driving only on the "wet sand" or "hard sand" areas of the beach.
In the summer months, sea turtles lay eggs in nests dug in the sand of the foredune and dune areas of the Atlantic Ocean beaches in the Preserve.
After a period of incubation in the nests, the turtle hatchlings dig themselves out of the nests and crawl to the ocean to begin their lives in the sea.
Driving motor vehicles over nests on those parts of the beaches in the summer months could crush eggs in their nests or pack the sand hard enough to reduce the number of hatchlings that emerge from the nest alive. In addition, driving motor vehicles in these area, even in other parts of the year, can leave ruts in the beach that disorient hatchlings that leave the nests in summer so that fewer reach the ocean alive.
Sea turtles crawl out of the ocean to their nest sites at night. Artificial lighting can disturb their nesting and egg-laying activities. However, it seems that moving lights, or lights that turn on and off (in the manner of car lights), create more of a disturbance than stationary lights, such as those more often found at residences along the beaches in the Preserve. The Management Plan does not prohibit artificial lighting along the beaches in the Preserve, but it recommends that further attention be given to this problem and that ways to address the problem be explored and pursued in cooperation with the County.
Various shore birds, including the threatened least tern, make their nests in the foredune area of the beaches in the Preserve. Driving on the foredunes destroys and disturbs nesting habitat and disturbs the nesting activities of these birds. In addition, both these ground nesting shore birds and a variety of migratory birds make use of different areas of the beaches to rest and feed. Driving on the beaches disturbs these activities, as well. The only known nesting colony of least terns in St. Johns County is located in the Park, where beach driving is prohibited.
The Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to prohibit driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park. At least parts of the beaches in the Park have been posted as areas where driving motor vehicles is prohibited.
In order to develop a management plan for the Preserve, the manager of the Preserve personally researched the geology, climate and natural resources of the Preserve, as well as the records of the County, and also collected data pertaining to the Preserve from several state agencies. Over the course of a year, the manager's input was taken into consideration, and a management plan,
called the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), was developed for the Preserve. It was adopted by the Board of Trustees of the Internal Improvement Trust Fund on December 17, 1991.
The Management Plan recites in pertinent part:
At the present time, motorized vehicular traffic is permitted, by county ordinance, below the natural vegetation line on the beaches adjacent to the Atlantic Ocean in St. Johns County. Vehicles are not allowed on the 4.2 miles of beach within Guana River State Park. The coarse coquina sand and steep profiles of the beaches in the preserve make driving on the wet sand area difficult. Drivers are forced to cross the dry sand area, damaging the foredunes, pioneer dune vegetation and sea turtle nesting habitat.
Due to the negative environmental impacts resulting from this activity, motorized vehicular traffic shall not be considered an authorized activity on sovereign submerged lands within [Prime Resource Protection Area] PRPA beach management areas of the preserve, and therefore will be prohibited.
Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are Prime Resource Protection Area, and the driving of motorized vehicles on them is prohibited.
On June 11, 1993, the DEP's DRP sent St. Johns County a letter advising that, based on the Management Plan, DEP no longer would permit the driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or about August 18, 1993, the DEP agreed not to enforce the beach driving prohibition in the Preserve until these cases are resolved.
CONCLUSIONS OF LAW
F.A.C. Rule 16D-2.002, dealing with vehicles and traffic in state parks, provides in pertinent part:
Restriction to Roads. No person shall drive any vehicle on any area except designated roads, parking areas, or other such designated areas.
Parking. All vehicles shall be parked only in established parking areas or in such other areas and at such times as the Division may designate.
Utilizing this rule, the Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has prohibited driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park.
The proposed amendment to F.A.C. Rule 18-20.004, dealing with management policies, standards and criteria for state aquatic preserves, incorporates by reference the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), including the beach driving prohibition in the Management Plan.
Jurisdiction Over the Beaches
The first essential ground on which the County challenges the validity of both F.A.C. Rule 16D-2.002(4)-(5) and the proposed amendment to F.A.C. Rule 18-20.004 is its contention that the County, not the DEP, has jurisdiction over vehicular traffic on the Atlantic Ocean beaches in St. Johns County.
In 1941, the Florida Legislature declared the Atlantic Ocean beach within St. Johns County seaward of the mean high water line to be a public highway under the jurisdiction and control of St. Johns County, subject to the right of the public to use the beach for bathing and recreation. Chapter 21543, Laws of Florida (1941).
In 1949, the Legislature limited the County's jurisdiction by prohibiting the operation of motor vehicles on the northerly two and a half miles of the beach referred to in Chapter 21543, Laws of Florida (1941). Chapter 26196, Laws of Florida (1949).
In 1961, the Legislature further limited the County's jurisdiction by prohibiting the operation of motor vehicles on the southerly four miles of the northerly six and a half miles of the beaches referred to in Chapter 21543, Laws of Florida (1941). Chapter 61-2744, Laws of Florida (1961).
In 1965, the Legislature specified that the County only had jurisdiction to "supervise, regulate, prohibit and permit the operation of" motor vehicles on the beaches within the county limits over which the county had jurisdiction. Chapter 65-2178, Laws of Florida (1965).
These earlier special acts dealing with vehicular traffic on the coastal beaches of St. Johns County must be read in pari materia with more recent legislative pronouncements on the same subject. Specifically, more recent legislative acts addressing the entire subject, only some of which was addressed in earlier enactments, take precedence over the older legislation. See Alvarez v. Board of Trustees of the City Pension Fund for Fire Fighters and
Police Officers in the City of Tampa, 580 So. 2d 151 (Fla. 1991). It is assumed that the more recent laws were enacted with full knowledge of the older ones.
Oldham v. Rooks, 361 So. 2d 140 (Fla. 1978).
In 1985, the Legislature enacted the Coastal Zone Protection Act, which recognized the importance of beach ecology and the need to control and manage beaches in order to preserve their unique features. See Sections 161.52- 161.58, Fla. Stat. (1991).
Section 161.58(1), Fla. Stat. (1991), prohibits "vehicular traffic . .
. on the dunes or native stabilizing vegetation of the dune system of coastal beaches," except that which is necessary for cleanup, repair, or public safety, "and except for traffic upon authorized local or state dune crossovers." Section 161.58(2), Fla. Stat. (1991), provides:
Vehicular traffic, except that which is necessary for cleanup, repair, or public safety, or for the purpose of maintaining existing licensed and permitted traditional commercial fishing activities or existing authorized public accessways, is prohibited on coastal beaches except where a local government with jurisdiction over a coastal beach or portions of a coastal beach has:
Authorized such traffic, by at least a three-fifths vote of its governing body, on all or portions of the beaches under its jurisdiction prior to the effective date of this act; and
Determined, by October 1, 1989, in accordance with the rules of the department, that less than 50 percent of the peak user demand for off-beach parking is available. However, the requirements and department rulemaking authority provided in this paragraph shall not apply to counties that have adopted, prior to January 1, 1988, unified countywide beach regulations pursuant to a county home rule charter.
Since the County proved compliance with the terms of paragraphs (a) and (b) of Section 161.58(2), this statute raises the issue whether the County has jurisdiction over the coastal beaches within the Preserve.
Also in 1985, the Legislature designated the Guana River Marsh Aquatic Preserve for inclusion in the Floridaa Aquatic Preserve Act of 1975. Section 258.394, Fla. Stat. (1991). It includes "all the sovereignty submerged lands and other state-owned lands" lying within the boundaries described in the statute. Id. Within those boundaries are the coastal beaches in St. Johns County that are the subject of the controversy in this case. Some of the coastal beaches in question are within the boundaries of the the Guana River State Park (the Park), which lies wholly within the Preserve boundaries.
Title to the Preserve and the Park is held by the Board of Trustees of the Internal Improvement Trust Fund in trust for the use and benefit of the people of the state pursuant to Section 7, Article II, and Section 11, Article X, of the Florida Constitution. Section 253.001, Fla. Stat. (1991). The Board is "vested and charged with the acquisition, administration, management, control, supervision, conservation, protection, and disposition of the lands it holds in trust for the people of the state." Section 253.03, Fla. Stat. (Supp. 1992).
The Department of Environmental Protection (DEP), acting as the agent for the Board of Trustees of the Internal Improvement Trust Fund, is a state agency charged with the responsibility of managing Florida's aquatic preserves under Chapter 258.35-258.46, Fla. Stat. (1991).
The DEP's Division of Recreation and Parks (DRP) is a state agency charged with the responsibility of managing Florida's state parks under Chapter 258, Fla. Stat. (1991), and the rules promulgated under that law. The DRP was reassigned to the new Department of Environmental Protection in 1993. Chapter 93-213, Laws of Florida (1993).
The DEP also is charged with the responsibility to administer, supervise, develop and conserve the natural resources of the State under Chapter 370, Florida Statutes, and the rules promulgated under that law.
The DEP also is required to preserve and protect state-owned lands and the natural resources associated with these lands, such as dunes, sea turtles and least terns. Chapter 253, 258 and 370, Fla. Stat. (1991).
In 1988, the Park was leased to the State of Florida, Department of Natural Resources, Division of Recreation and Parks (the DRP). The DRP was reassigned to the new Department of Environmental Protection in 1993. Chapter 93-213, Laws of Florida (1993). The DRP has the statutory duty to preserve, manage, regulate, and protect all parks and recreational areas held by the state. Section 258.004(2), Fla. Stat. (1991). The DRP is authorized to promulgate rules "as it may deem necessary or proper for the management and use of the parks . . . under its jurisdiction . . .." Section 258.007(2), Fla. Stat. (1991).
These and other statutory authorities make clear that the County no longer has jurisdiction over the coastal beaches in the Preserve and in the Park. To the contrary, the Board of Trustees of the Internal Improvement Trust Fund has jurisdiction over the Park and has delegated its jurisdiction to the DEP. The DRP of the DEP has jurisdiction over the Park. The County no longer has jurisdiction to authorize vehicular traffic on beaches within the Park and within the Preserve.
Traditional Uses of the Beaches
The County also argues that, even if the County no longer has jurisdiction over vehicular traffic on the coastal beaches, the DEP's jurisdiction is significantly limited, at least in the Preserve, if not in the Park. Section 258.43(1), Fla. Stat. (1991), dealing with state aquatic preserves, provides:
The Board of Trustees of the Internal Improvement Trust Fund shall adopt and enforce reasonable rules and regulations to carry out the provisions of this act and specifically to provide regulation of human activities within the preserve in such a manner as not to unreasonably interfere with lawful and traditional public uses of the preserve, such as sport and commercial fishing, boating, and swimming.
The County contends that beach driving is a traditional use of the beaches in the Preserve and that, in addition, prohibiting beach driving in the Preserve would unreasonably interfere with fishing, boating and swimming in the Preserve.
When construing a statute, the mention of one thing in the statute implies the exclusion of things not mentioned. (Expressio unius est exclusio alterius.) Thayer v. State, 335 So. 2d 815 (Fla. 1976); Devin v. City of Hollywood, 351 So. 2d 1022 (Fla. 1976). Another rule of statutory construction is that, where general words follow a list of particulars, the general words are presumed to be restricted by the nature of the particulars. (Ejusdem generis.) Cf. Shepard v. Thames, 251 So. 2d 265 (Fla. 1971); Arnold v. Shumpert, 217 So. 2d 116 (Fla. 1968). Applying these rules, even assuming that the listing in the statute is non-exclusive, it is concluded that the mention of fishing, boating and swimming in the statute was intended to exclude beach driving.
It also is concluded that the prohibition against driving motor vehicles on the beaches in the Preserve does not unreasonably interfere with any lawful and traditional public uses of the Preserve.
Reasonableness of the Challenged Promulgations
The County also argues that the prohibition of all beach driving on the beaches in the Preserve and in the Park is overly broad. It argues that a prohibition against driving only during the winter season, or a restriction to driving only at low tide, would have been sufficient to achieve the State's purposes.
It has been found that, at all times of the year, it sometimes is impossible to drive along the entire length of the beaches in the Preserve without driving on the soft sand area. This is especially true during the winter months when the waves and tides are higher and storms are more frequent. But even in the summer months, there are times when "red shell beds" in the "wet sand" part of the beach must be circumvented to avoid getting stuck. Especially when the tide is not at its lowest, the only way to avoid some of these "red shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on the tides, this may also be necessary in order to turn a vehicle around on the beach. In many places, the "soft sand" area is not very wide, and it would be necessary under those circumstances to drive in the "foredune" area.
It also has been found that there is no assurance that all persons who would drive on the beaches would know the times of the tides. Nor is there any assurance that persons who drive the "wet sand" or "hard sand" part of the beaches at low tide also would plan to both start their beach drive and complete their return trip during low enough tides to be able to avoid driving on the "soft sand" part of the beach. For these and other reasons, it would be difficult, if not practically impossible, to effectively monitor beach driving throughout the Preserve and consistently enforce a restriction to driving only on the "wet sand" or "hard sand" areas of the beach.
For these reasons, it is concluded that a complete prohibition against driving motor vehicles on the beaches in the Preserve and in the Park is not unreasonable or overly broad.
DISPOSITION
Based on the foregoing Findings of Fact and Conclusions of Law, these challenges to the validity of F.A.C. Rule 16D-2.002(4)-(5) and to the proposed amendment to F.A.C. Rule 18-20.004, incorporating by reference the Guana River Marsh Aquatic Preserve Management Plan, are denied.
DONE AND ORDERED this 30th day of November, 1993, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 30th day of November, 1993.
APPENDIX TO FINAL ORDER, CASE NO. 93-3842RU
To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact, Case No. 93-3875RX.
Accepted and incorporated.
Accepted but subordinate and unnecessary.
Accepted and incorporated.
Accepted in part and rejected in part, as reflected in the Findings of Fact.
Petitioner's Proposed Findings of Fact, Case No. 93-4533RP.
1.-5. Accepted and incorporated to the extent not subordinate or unnecessary.
6. Subordinate and unnecessary.
7.-8. Accepted and incorporated to the extent not subordinate or unnecessary.
First sentence, rejected as not proven. There also is access by boat and, albeit over longer distances, by foot.
Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted in part and rejected in part, as reflected in the Findings of Fact.
Accepted as representative of dead low tide. Subordinate and unnecessary.
Accepted and incorporated.
Rejected in part: in that there are "red shell beds" in summer, too, and they can force drivers onto the "soft sand" areas in summer, too, depending on the tides; in that "dramatically" is argument and not proven; and in that Exhibit 2 depicts dead low tide in summer.
Accepted but subordinate and unnecessary.
Rejected as not proven. (Enforcement of such mitigation would be impracticable or impossible.)
Accepted but subordinate and unnecessary.
Accepted and incorporated.
19.-20. First sentence, accepted and incorporated. Second sentence, accepted that the County uses "due care," but enforcement of a prohibition against driving anywhere except on the "hard sand" is impracticable or impossible.
Rejected as not proven.
Accepted but subordinate and unnecessary.
Rejected as not proven that there is "no way to get to many beach areas" or that limited access "restricts traditional use." (Access as limited, or more limited, is "traditional.")
24.-26. Accepted and incorporated.
Rejected as not proven. (How easy it is depends entirely on the tide, the number and location of people on the beach, and the presence of "red shell" beds.)
Accepted and incorporated.
Respondent's Proposed Findings of Fact.
1.-3. Accepted and incorporated except to the extent conclusion of law and unnecessary.
Accepted and incorporated.
Accepted but subordinate and unnecessary.
6.-20. Accepted and incorporated to the extent not concluson of law, subordinate or unnecessary.
21.-24. Rejected as being conclusion of law.
25.-33. Accepted and incorporated to the extent not subordinate or unnecessary.
34. Rejected as conclusion of law as to who is "responsible."
35.-54. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven. Also, conclusion of law.
Accepted but subordinate and unnecessary.
COPIES FURNISHED:
Daniel J. Bosanko, Esquire Assistant County Attorney St. Johns County
Post Office Box 1533
St. Augustine, Florida 32085-1533
Edwin A. Steinmeyer, Esquire Barrie J. Sawyer, Esquire Assistant General Counsel
Department of Environmental Protection 2600 Blair Stone Road, Mail Station 35 Tallahassee, Florida 32399-2400
Kenneth Plante, Esquire General Counsel
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Carroll Webb, Executive Director Administrative Procedures Committee
120 Holland Building Tallahassee, Florida 32399-1300
Liz Cloud, Chief
Bureau of Administrative Code Department of State
The Elliot Building
Tallahassee, Florida 32399-0250
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.
=================================================================
DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 1994
BOARD OF COUNTY COMMISSIONERS NOT FINAL UNTIL TIME EXPIRES OF ST. JOHNS COUNTY, etc., TO FILE MOTION FOR REHEARING,
AND, IF FILED, DISPOSED OF.
Appellant,
CASE NO. 93-2949
vs. 94-274
DOAH CASE NOS. 93-3842RU
THE DEPARTMENT OF ENVIRONMENTAL 93-3875RU PROTECTION,
Appellee.
/ Decision filed September 27, 1994
Administrative Appeal from the Department of Environmental Protection.
Daniel J. Bosanko, Assistant County Attorney, James G. Sisco, County Attorney, St. Augustine and David G. Conn, St. Augustine, for Appellant.
Kenneth J. Plante, General Counsel, Edwin A. Steinmeyer, John W. Costigan and Barrie J. Sawyer, Assistant General Counsels, Tallahassee, for Apellee.
PER CURIAM,
AFFIRMED.
HARRIS, C.J., DIAMANTIS and THOMPSON, JJ., concur
| Issue Date | Proceedings |
|---|---|
| Feb. 27, 2004 | Opinion filed. |
| Oct. 24, 1996 | Fifth DCA Opinion (filed with DOAH on 10/24/96, Affirmed) filed. |
| Apr. 13, 1994 | Order Denying Motion to Vacate Automatic Stay sent out. |
| Apr. 11, 1994 | CC Petitioner`s Response to Respondents` Motion to Vacate Automatic Stay filed. |
| Apr. 08, 1994 | Petitioner`s Response to Respondents` Motion to Vacate Automatic Stay filed. |
| Apr. 05, 1994 | Notice of Hearing filed. (From Lisa L. Glenn) |
| Mar. 25, 1994 | Respondents` Motion to Vacate Automatic Stay filed. |
| Nov. 30, 1993 | CASE CLOSED. Final Order sent out. Hearing held August 26, 1993. |
| Nov. 30, 1993 | Order of Consolidation sent out. (Consolidated cases are: 93-3842RU,93-3875RX, 93-4533RP) |
| Nov. 30, 1993 | Case No/s 93-3842RU, 93-3875RX, 93-4533RP, 93-3970: unconsolidated. |
| Oct. 06, 1993 | Motion to Amend Petition (for 93-4533RP) filed. |
| Sep. 29, 1993 | Respondent`s Proposed Final Order filed. |
| Sep. 29, 1993 | Respondent`s Proposed Recommended Order filed. |
| Sep. 27, 1993 | Transcript filed. |
| Sep. 27, 1993 | Petitioner`s Proposed Recommended Order (filed in 93-4533RP, 93-3875RX and 93-3970) filed. |
| Sep. 27, 1993 | Transcript filed. |
| Sep. 17, 1993 | Notice of Written Communication sent out. |
| Sep. 15, 1993 | Letter to JLJ from John W. Underwood (re: statement) filed. |
| Aug. 24, 1993 | (Petitioner) Voluntary Dismissal of Amended Section 120.535 (2), Florida Statutes Petition to Invalidate an Agency Policy Statement on the Grounds That It Has Not Been Adopted as A Rule in Accordance With Section 120.54, Florida Statutes Request for Heari |
| Aug. 23, 1993 | Second Motion to Amend Petition Challenging the Validity of Agency Action and Request for Formal Proceedings Pursuant to Section 120.57(1),Florida Statutes (filed in 93-3970) filed. |
| Aug. 23, 1993 | (Petitioner) Motion to Amend Section 120.54, Florida Statutes Petition Challenging Proposed Amendment to Rule 18-20.004 Florida Administrative Code As An Invalid Exercise of Delegated Authority and Request for Hearing (filed in 93-4533RP) filed. |
| Aug. 17, 1993 | Order Consolidating Cases and Granting Leave to Amend Petitions (hearing set for Aug. 26-27, 1993) sent out. (Consolidated cases are: 93-3842RU, 93-3875RX, 93-3970 & 93-4533RP) |
| Aug. 16, 1993 | Prehearing Stipulation filed. (From Edwin A. Steinmeyer) |
| Aug. 13, 1993 | (Petitioner) Motion to Consolidate filed. |
| Aug. 13, 1993 | Amended Section 120.535(2), Florida Statutes Petition to Invalidate an Agency Policy Statement on the Grounds that it has not Been Adopted as a Rule in Accordance with Section 120.54, Florida Statutes Request for Hearing (for 93-3842RU) filed. |
| Aug. 13, 1993 | Amended Section 120.56 Florida Statutes Petition to Invalidate Portions of Rule 16D-2.002 Florida Administrative Code in that they are an Invalid Exercise of Delegated Authority in Relation to St. Johns County, Florida (for 93-3875RX) filed. |
| Aug. 13, 1993 | Motion to Amend Section 120.56 Florida Statutes Petition to Invalidate Portions of Rule 16D-2.002 Florida Administrative Code in that they are an Invalid Exercise of Delegated Authority in Relation to St. Johns County, Florida (for 93-3875RX) filed. |
| Aug. 13, 1993 | Amended Petition Challenging the Validity of Agency Action and Request for Formal Proceedings Pursuant to Section 120.57(1), Florida Statutes (for 93-3970) filed. |
| Aug. 13, 1993 | Motion to Amend Petition Challenging the Validity of Agency Action and Request for Formal Proceedings Pursuant to Section 120.57(1), Florida Statutes (for 93-3970) filed. |
| Aug. 13, 1993 | Motion to Amend Section 120.535(2), Florida Statutes Petition to Invalidate an Agency Policy Statement on the Grounds that it has Not Been Adopted as a Rule in Accordance With Section 120.43, Florida Statutes (for 93-3842RU) filed. |
| Aug. 13, 1993 | (Petitioner) Notice of Taking Deposition Duces Tecum; Letter to JLJ from D. Bosanko (re: request for subpoenas) filed. |
| Aug. 11, 1993 | (DEP) Notice of Taking Deposition Duces Tecum filed. |
| Jul. 21, 1993 | Prehearing Order sent out. |
| Jul. 21, 1993 | Notice of Hearing sent out. (hearing set for 8/26/93; 9:00am; Tallahassee) |
| Jul. 21, 1993 | Order Consolidating Cases sent out. (Consolidated cases are: 93-3842RU, 93-3875RX, 93-3970) |
| Jul. 15, 1993 | Letter to Liz Cloud & Carroll Webb from J. York w/cc: Agency General Counsel sent out. |
| Jul. 15, 1993 | Order of Assignment sent out. |
| Jul. 08, 1993 | Section 120.535(2), Florida Statutes Petition to Invalidate An AgencyPolicy Statement on the Grounds That it has Not Been Adopted as a Rule in Accordance With Section 120.54, Florida Statutes and Request for Hearing; Appendix; & C over Letter from D. Bosa |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 27, 1994 | Opinion | |
| Nov. 30, 1993 | DOAH Final Order | Rule prohibits motor vehicles in state park except in designated areas. Proposed rule prohibits it on beaches in the Guana Park and Preserve. Valid. |
