STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL P. VENTURA and J & M )

FLOYD, INC., a Florida ) corporation, d/b/a Jim's Bike ) & Scooter Rentals, )

)

Petitioners, )

)

vs. ) CASE NO. 93-5964

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION and LEE COUNTY, )

)

Respondents. )

)

RECOMMENDED ORDER

Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted the final hearing in Ft. Myers, Florida, on February 8 and 9, 1996.

APPEARANCES

For Petitioners: Russell P. Schropp

Henderson Franklin Post Office Box 280

Ft. Myers, Florida 33902

For Respondent John W. Costigan Department of V. Paige Hammond

Environmental Department of Environmental Protection Protection: 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent Audrey E. Vance Lee County: Patrick G. White

Lee County Attorney's Office Post Office Box 398

Ft. Myers, Florida 33902-0398 STATEMENT OF THE ISSUE

The issue is whether Lee County is entitled to a permit to install markers prohibiting personal watercraft in certain waters.

PRELIMINARY STATEMENT

By Petition for Administrative Hearing dated August 6, 1993, Petitioners challenged the reissuance of a permit dated August 3, 1993. The Petition alleges that Respondent Department of Environmental Protection issued the revised permit to Respondent Lee County so that Lee County could install markers prohibiting personal watercraft from certain waters.

The case was abated for two years to permit the parties to litigate in circuit and appellate court in an attempt to resolve the issue raised in this case. The hearing officer reset the case for hearing at Petitioners' request shortly after the decision of the appellate court discussed below.

At the hearing, Petitioners called two witnesses and offered into evidence

18 exhibits. Respondent Department of Environmental Protection called one witness and offered into evidence four exhibits. Respondent Lee County called six witnesses and offered into evidence ten exhibits. Hearing Officer Composite Exhibit No. 1 was also admitted, consisting of the orders issued by Lee County Circuit Court pertaining to the issue raised in this case. All exhibits were admitted except for part of Lee County Exhibit No. 9.

The transcript was filed March 8, 1996. Rulings on timely filed proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. In January 1992, Respondent Lee County (Lee County) filed an application with Respondent Department of Natural Resources (references to the Department of Natural Resources or its successor agency, the Department of Environmental Protection, shall be to DEP). The application sought a permit to install numerous regulatory markers in the waters adjacent to Captiva Island.

   
   

2. The application contains a location map for the markers, a statement of the purpose of the markers with a citation to the ordinance to be implemented by the markers, a list of persons responsible for the installation and maintenance of the markers, and a hold-harmless agreement. The hold-harmless agreement, which is preprinted on what appears to be a Coast Guard application form, is for the Coast Guard and covers claims arising from alleged negligence in the maintenance and operation of the markers, but not in their placement.

   
   

3. The purpose of the markers was to implement Lee County Ordinance No. 90-51, which prohibits personal watercraft from operating in certain waters adjacent to Captiva Island and set an idle-speed zone for all other vessels in the same waters.

   
   

4. Section 6.F of Ordinance 90-51 provides:

   
   

   No owner or operator shall operate any personal watercraft within the following areas of prohibited personal watercraft activity:

   1. All waters within five hundred (500) feet of the shoreline of the west side of Captiva Island between Blind Pass and Redfish Pass; and

   2. All waters between the shoreline of the east side of Captiva Island and a line commencing at the tripod marker and extending due south to Blind Pass. This area shall include Roosevelt Channel.

      
      

5. Lee County tried to enforce the ordinance prohibiting personal watercraft before installing the markers. However, Lee County Circuit Court in Lippi v. Lee County, Case No. 90-8334- CA-RWP, enjoined Lee County on November 2, 1990, from enforcing this vessel-exclusion zone until the affected area was marked in accordance with Chapter 373, Florida Statutes.

   
   

6. On December 23, 1991, Lee County Circuit Court entered an Order of Partial Summary Judgment finding that Section 6.F of Ordinance No. 90-51 was in conflict with Section 327.46(2), Florida Statutes. The order states that Section 6.F purports to make it unlawful to operate certain vessels in restricted waters that have been unmarked, and Section 327.46(2) makes it unlawful to operate vessels in restricted waters that have been marked. The court held that, although Section 6.F was not invalid, Section 327.60, Florida Statutes, rendered it inoperative until Lee County complied with the statutory requirements for creating restricted waters.

   
   

7. On April 12, 1994, Lee County Circuit Court entered an Order of Partial Summary Judgment finding that Section 6.F is in conflict with Section 327.46(1). The order states that Section 327.46(1) authorizes only DEP to create restricted waters for public safety and requires DEP to do so by rule. The court held this time that Section 6.F was inoperative and invalid.

   
   

8. In Lee County v. Lippi, 662 So. 2d 1304 (Fla. 2d DCA 1995), decided October 25, 1995, the appellate court reversed the trial court's holding that Section 6.F was in conflict with state law. Reviewing the various statutes, the court noted that the issue was not one of preemption, but only whether the ordinance conflicted with any provision of Chapter 327.

   
   

9. The Lippi court found no conflict between the statutes and the ordinance prohibiting personal watercraft in certain waters. The court stated that the ordinance "does not impede or purport to preclude the ability of [DEP] to designate the same area as restricted for other purposes." 662 So. 2d at 1306. The court concluded by cautioning:

   
   

   Our holding that the trial court erred by declaring the ordinance invalid does not mean that the ordinance may be enforced without the restricted areas being properly marked by the county in accordance with the permitting requirements set forth in Chapter 62N-23, Florida Administrative Code.

   
   

   662 So. 2d at 1307.

   
   

10. In the meantime, Lee County tried to obtain from DEP a permit to mark the waters with idle-speed and vessel-exclusion zones. By letter dated April 2, 1992, Major J. K. Thompson of the Florida Marine Patrol, objected to Section 6.F as "discriminatory" in unfairly singling out personal watercraft from other vessels when establishing the vessel-exclusion zone.

11. Lee County's Director of the Department of Community Services advised Major Thompson, by letter dated July 1, 1992, that the Lee County Circuit Court had found no fault with Section 6.F. He also advised that Lee County would have no objection to designating the area merely as a "Swim Area--Idle Speed" zone.

    
    

12. By return letter dated July 8, 1992, Major Thompson advised that he would defer to the court's ruling. DEP issued Permit No. 92-032, which allowed Lee County mark the coastal waters adjacent to Captiva Island as an idle-speed zone.

    
    

13. Lee County installed the idle-speed markers authorized by Permit No. 92-032. It then asked the Circuit Court to dissolve the injunction. The judge refused to dissolve the injunction because the markers did not create a vessel- exclusion zone and thus the waters were not marked in accordance with Chapter

    327 so as to exclude personal watercraft.

    
    

14. Lee County informed DEP of the county's continued inability to mark the waters to prevent their use by personal watercraft. After additional communications between Lee County and DEP, by letter dated August 3, 1993, DEP informed Lee County that it was rescinding and reissuing Permit No. 92-032 for the Gulf side and Roosevelt Channel on the bay side. DEP this time allowed Lee County to install markers not only requiring idle speed and prohibiting a wake, but also prohibiting personal watercraft.

    
    

15. On August 16, 1993, Petitioners filed the petition commencing this case and the reissuance of a permit allowing Lee County to implement Section 6.F of Ordinance No. 90-51 by excluding personal watercraft within 500 feet of shore.

    
    

16. Major Thompson's substantive review of the fairness and presumably legality of Ordinance No. 90-51 was contrary to DEP policy. DEP typically reviews all requests for regulatory markers from local governments or private persons to determine if an underlying ordinance justifies the restrictions sought to be implemented by the markers, if the markers would adequately notify the typical boater of the restrictions, and if the markers' location would constitute a hazard to navigation.

    
    

17. DEP does not review an underlying ordinances for fairness or legality. DEP does not conduct an independent investigation to determine if the requested markers are needed for navigation or safety, nor does DEP review any claims of a governmental entity that its ordinance serves navigational or safety interests.

    
    

18. If an ordinance prohibited all blue boats from certain waters, DEP would not decline to issue the permit on the grounds of likely unlawfulness of the ordinance. DEP instead would issue the permit, if all other requirements were met, and rescind the permit if and when a court invalidated the underlying ordinance.

    
    

19. DEP has received 59 applications for vessel-exclusion permits since 1984. DEP has granted 47 of these applications. Ten are inactive or pending. DEP has denied only two of these applications; in both cases, the governmental entity or entities with jurisdiction over the affected waters had not adopted ordinances establishing the restrictions for which the markers were sought.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

21. Section 327.46(1) authorizes DEP to establish restricted areas in waters of the State. The statute provides:

    
    

    1. [DEP] shall have the authority for establishing, by rule, restricted areas on the waters of the state for any purpose deemed necessary for the safety of the public . . .. Each such restricted area shall be developed in consultation and coordination with the governing body of the county or municipality in which the

       restricted area is located and, where required, with the United State Army Corps of Engineers. Restricted areas shall be established in accordance with the procedures under chapter 120.

       
       

22. Section 327.46(1) does not preclude local governments from establishing their own restricted areas in waters of the State. See, e.g., Lee County v. Lippi, 662 So. 2d 1304 (Fla. 2d DCA 1995).

    
    

23. A local government (or private person) seeking to establish a restricted area in waters of the State may request DEP to establish and mark, presumably at DEP's expense, such an area through rulemaking, as provided by Section 327.46(1).

    
    

24. In the alternative, a local government (or private person) may ask DEP for a permit to mark the restricted area by and at the expense of the applicant. The latter procedure is authorized by Section 327.40(2), which provides:

    
    

    Application for marking inland lakes and state waters and any navigable waters under concurrent jurisdiction of the Coast Guard and the division [DEP's Division of Law Enforcement] shall be made to the division, accompanied by a map locating the approximate placement of markers, a statement concerning the purpose of marking and the names of persons responsible for the placement and upkeep of such markers. The division will secure the proper permission from the Coast Guard where required, make such investigations as needed and issue a permit. The division shall furnish the applicant with the information concerning the system adopted and regulations existing for placing and maintaining the uniform safety and navigation markers. The division shall keep records of all approvals given and counsel with individuals, counties, municipalities, motorboat clubs, or other groups desiring to mark waterways for safety and navigation purposes in Florida.

25. Rule 62N-23.003(2) repeats the statutory requirements in terms of marker applications, but adds another:

    
    

    (e) An agreement to hold harmless the Department of Environmental Protection, Division of Law Enforcement, from fault with respect to any claim or claims arising from alleged negligence in the placement, maintenance or operation of the approved markers.

    
    

26. In reviewing an application under Section 327.40(2), DEP's role is limited to determining if the applicant has satisfied the requirements of the statute. DEP determines if the applicant has adequately provided for the maintenance of the markers. In reviewing the purpose of the markers, DEP sensibly determines if the markers are to restrict waters pursuant to some underlying authority, such as a local ordinance.

    
    

27. Section 327.40(2) does not require DEP to review the adequacy of the safety or navigation grounds or the for the ordinance and, thus, the markers. Section 327.40(2) does not require DEP to review the underlying ordinance for fairness of legality. The issue in this case is not whether DEP could conduct such reviews, just as it requires an underlying ordinance under the "statement of purpose" provision.

    
    

28. The issue in this case is whether DEP must conduct such reviews. DEP's interpretation of its more limited duties under the statute is fair and reasonable, leaving to the courts the issues of the legality of underlying

    ordinances and the extent to which such ordinances serve navigational and safety interests. This interpretation is also consistent with DEP's longstanding practice.

    
    

29. In this case, Lee County's application met all of the statutory requirements, but failed to meet the requirement of the rule that the applicant hold DEP harmless from claims arising from alleged negligence in the placement, maintenance, or operation of the approved markers. The form application contains a hold-harmless provision for the Coast Guard, but not DEP, and omits mention of placement. However, these omissions, though important, may be easily satisfied.

RECOMMENDATION

It is

RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the Petition and granting the challenged permit to Lee County, on the condition that Lee County first furnish the Department a hold-harmless agreement satisfying the requirements of Rule 62N-23.003(2)(e)

ENTERED on May 3, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

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 on May 3, 1996.

APPENDIX

Rulings on Petitioner's Proposed Findings

1: adopted or adopted in substance. 2-4: rejected as irrelevant.

5-10: adopted or adopted in substance.

11-13: rejected as subordinate and irrelevant. 14-15: adopted or adopted in substance.

16-25: rejected as irrelevant.

Rulings on Respondents' Proposed Findings

1-11: adopted or adopted in substance. 12-31: rejected as irrelevant.

32: adopted or adopted in substance, except that the hold- harmless agreement extends only to the Coast Guard, not DEP.

33-34: rejected as irrelevant.

35-37: adopted or adopted in substance. 38-39: rejected as irrelevant.

40-48: adopted or adopted in substance.

49: rejected as subordinate and irrelevant. 50-54: rejected as recitation of evidence.

55-73: rejected as recitation of evidence, irrelevant, and subordinate.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth Plante, General Counsel Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Russell P. Schropp Henderson Franklin Post Office Box 280

Ft. Myers, Florida 33902

John W. Costigan

V. Paige Hammond

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Audrey E. Vance Patrick G. White

Lee County Attorney's Office Post Office Box 398

Ft. Myers, Florida 33902-0398

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: 93-005964

Orders for Case No: 93-005964