STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
COLLIER COUNTY BOARD OF COUNTY ) COMMISSIONERS, ET AL., )
)
Petitioners, )
)
vs. )
)
FLORIDA FISH AND WILDLIFE ) CONSERVATION COMMISSION, ET ) AL., )
)
Respondents, )
)
and )
) CITIZENS TO PRESERVE NAPLES ) BAY, INC., AND THE CONSERVANCY ) OF SOUTHWEST FLORIDA, INC., )
)
Intervenors. )
Case Nos. 05-2034
05-2035
05-2036
05-2037
)
RECOMMENDED ORDER
This cause came on for formal proceeding and hearing before
Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Naples, Florida, on February 22 through 24, and by agreement of the parties on June 26 through 27, 2006. The appearances were as follows:
APPEARANCES
For Petitioner: Frank E. Matthews, Esquire
D. Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
Colleen M. Greene, Esquire Jeffrey A. Klatzkow, Esquire Office of the County Attorney Collier County Government Center 3301 Tamiami Trail, East
Harmon Turner Building, 8th Floor Naples, Florida 34112
For Petitioners
pro se: Captain Allen Walburn 678 14th Avenue South Naples, Florida 34102
Captain Eric Alexander 654 Squire Circle
Naples, Florida 34102
James Pergola 1830 Kingfish Road
Naples, Florida 34102
Douglas Finlay
3430 Gulf Shore Boulevard, North, 5H Naples, Florida 34103
For Respondents: Elise M. Matthes, Esquire
Captain Allen Richards, Esquire Florida Fish and Wildlife Conservation Commission
620 South Meridian Street Tallahassee, Florida 32399
Robert G. Menzies, Esquire James D. Fox, Esquire Roetzel & Andress, LPA
850 Park Shore Drive Trianon Centre, 3rd Floor Naples, Florida 34103
For Intervenors: Mimi S. Wolok, Esquire
1112 Trial Terrace Drive Naples, Florida 34103
Ralf Brooks, Esquire
1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33112
Michael R.N. McDonnell, Esquire McDonnell Trial Lawyers
5150 Tamiami Trial North, Suite 501
Naples, Florida 34103 STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether the City of Naples's (City) Waterway Marker Permit Application should be granted, given the requirements of Section 327.40, Florida Statutes (2005) and Florida Administrative Code Rule 68-23.105(1)(b)(3) through (6).
PRELIMINARY STATEMENT
The City of Naples applied for a Waterway Marker Permit (permit) in accordance with the requirements of Florida Administrative Code Section 68D-23.105(1)(b), in furtherance of its ordinance enacted in order to impose slow speed zones in relevant portions of Naples Bay. On May 5, 2005, the Florida Fish and Wildlife Conservation Commission (FWC), issued a Notice of Intent to issue that permit.
Thereafter this cause arose when the various Petitioners named above filed timely Petitions for Administrative Hearing to contest that Notice of Intent to Issue and to dispute that the
requirements of the above-cited rule had been met by the applicant city. The dispute was referred to the Division of Administrative Hearings on June 3, 2005, and was consolidated by Order of June 14, 2005.
Thereafter a Motion to Relinquish Jurisdiction was filed by the City which was denied by Order of August 31, 2005. The formal hearing was originally scheduled for September 28 and 29, 2005, but had to be postponed due to the advent of Hurricane Wilma and its aftermath on the environs of the venue site, parties, counsel, and witnesses. Thereafter, by agreement of the parties the hearing was re-scheduled for February 22 through 24, 2006. The hearing was convened on February 22, 2006, and was conducted through February 24, 2006, but was not concluded. Thereafter, the parties advised the undersigned of their conclusion that five continuous days would be needed to finish the formal hearing. It developed that the only five continuous days by which the multiple parties, counsel, and the Administrative Law Judge could convene together was the week of June 26, 2006. Accordingly, the parties stipulated that the hearing be held commencing on June 26, 2006, to be conducted through June 30, 2006. The hearing was convened on June 26, 2006, and concluded on June 27, 2006.
When the cause came on for hearing, as noticed, the Petitioner, Collier County (County), presented the testimony of
Allen Walburn, a Naples resident and charter boat business owner, by deposition. It also presented the testimony of Captain Eric Alexander, also a Naples resident and charter boat business owner; Jim Pergola, a Naples resident and recreational boat user of Naples Bay, and a homeowner living adjacent to Naples Bay; Douglas Finlay, also a Naples resident and recreational boater who uses Naples Bay; and Murdo Smith, a representative of the Collier County Parks and Recreation Department. No separate exhibits were introduced into evidence by the County.
The Petitioner Marine Industries Association of Collier County, Inc. (MIACC), adduced the testimony of Edward K. Baker, Ph.D., accepted as an expert witness in the area of boat traffic studies, boat congestion simulation and modeling; Major Paul Ouellette of the FWC, who was accepted as an expert witness in the area of vessel traffic safety, vessel operation, vessel accident causes and waterways management; and City of Naples Police Chief Stephen Moore, and Lt. Ed Traszyk, accepted as experts in law enforcement procedures and identification of safety issues on roadways and waterways. MIACC also presented the testimony of John Staiger, Ph.D., a former City of Naples Natural Resources Director; Russ R. Ayres, City of Naples Marine Unit Officer; Phil Osborne, a representative for MIACC and Naples Boat Mart Owner; Phil Jentgen, a representative of MIACC
and a Naples Marina Co-owner, and the testimony of Rocco Marion and Joe Scalaro, both Collier County Sheriff's Deputies, by deposition.
The pro se Petitioners testified on their own behalf. They did not introduce any separate exhibits into evidence.
The City presented the testimony of David Lykins, the City of Naples Director of Community Services and Andrew Anderson, who was accepted as an expert witness in the areas of boat handling, boat traffic safety, vessel accident causes and prevention, and vessel operations.
The FWC presented the testimony of Major Paul Ouellette, an FWC representative and section leader for the Boating and Waterway Section within the Division of Law Enforcement of FWC. The FWC introduced one exhibit which was admitted into evidence.
The City introduced Exhibits 1 through 35, 38 through 41, which were admitted into evidence, albeit with restrictive rulings as to hearsay as to Exhibits 4, 5, 6, 10, 15 through 17,
20, 21, 23, and 24.
The MIACC introduced 18 exhibits which were admitted into evidence. Thus, Exhibits 1, 2, 3, 4, 5, 6, 8, 10, 12, 13, 21,
25, 26, 30, 31, 32, 33, and 34 have been admitted into evidence.
All parties adopted the testimony and exhibits of those parties with which they have commonality of interest and are similarly aligned.
The Intervenor, the Citizens to Preserve Naples Bay, Inc. (Citizens), presented the testimony of Walter Timmins, a Naples resident and president of Citizens. Citizens also introduced Exhibits 1, 2, and 4 which were admitted into evidence.
The Intervenor Conservancy of Southwest Florida Inc. (Conservancy), presented the testimony of Kathleen Adams, its administrative assistant; Robert Schmidt, an Environmental Research Manager at the Conservancy; and Gary Davis, who is an attorney and consultant with the Conservancy. Additionally, the Conservancy introduced Exhibits 1 through 8, 10, 11, 12, 13, 14, and 15 into evidence.
Upon conclusion of the proceeding, the parties elected to have the matter transcribed and agreed to an extended briefing schedule. It was thus stipulated and ordered that proposed recommended orders were to be filed 30 days after the transcript was filed. The Proposed Recommended Orders have been timely filed and have been considered in the rendition of this Recommended Order.
FINDINGS OF FACT
The Petitioner, Eric Alexander, is a resident of Collier County and a licensed boat captain. He is the owner of a charter boat business operating in Naples Bay, in Collier County waters.
The Petitioner, Douglas Finlay is also a resident of the City of Naples and a recreational boater. He operates power boats and a kayak on the waters of Naples Bay involved in this proceeding.
The Petitioner, James Pergola is also a resident of Naples and resident of Collier County. He is a recreational boater and uses the waters of Naples Bay for recreational boating purposes. He is also a homeowner, owning a home adjacent to Naples Bay.
The Petitioner, Allen Walburn is a resident of Collier County and a licensed boat captain. He owns a charter boat business which operates in the waters of Naples Bay and Collier County.
The Petitioner, Collier County, is a political subdivision of the government of the State of Florida. It operates a boat ramp and county park area on the waters of Naples Bay for use by its citizens and other members of the public. Its Sheriff Department employees patrol the waters of Naples Bay seeking to enforce relevant boating safety and other laws and ordinances.
The Petitioner, Marine Industries Association of Collier County, Inc. (MIACC), is a non-profit association of businesses which are directly or indirectly involved in the marine industry on, or near the waters of Naples Bay. The
members of the association and/or its customers use the waters of Naples Bay in the conduct of their businesses, employment, and for recreational boating and recreational and commercial fishing purposes.
The City of Naples (City) is a unit of local government. It has authority to adopt the ordinance which triggered the dispute involved in this proceeding, based upon Section 327.60, Florida Statutes (2005). The City thus has authority to adopt ordinances regulating the operation of vessels on waterways within the jurisdiction of the City, so long as such ordinances or local laws do not conflict with the provisions of Chapter 327, Florida Statutes, and any regulations promulgated thereunder, or with other state or federal law. The City thus adopted the relevant slow speed, minimum wake boating restricted areas (slow speed zones) at issue in this proceeding.
The Respondent, FWC, is an administrative agency of the State of Florida charged in pertinent part with managing the navigable waters of the state and with the consideration of waterway marker permit applications filed and arising under Chapter 327, Florida Statutes, and the related rules promulgated in Florida Administrative Code Chapter 68.
The Intervenor, Conservancy of Southwest Florida (Conservancy), is a Florida non-profit corporation. Its purpose
is the protection of the natural environment of Southwest Florida, including advocacy, education and research.
The Intervenor, Citizens to Preserve Naples Bay (Citizens), is also a Florida non-profit corporation. Its organizational purpose is to preserve and protect the bay by actively supporting efforts it believes will further that mission. In arriving at its positions on issues affecting Naples Bay, Citizens considers questions of physical, chemical, biological, and navigational safety.
The Waterway Marker Permit Application
Naples Bay is a water body located within the boundaries of Collier County and the City of Naples. It is an inland water body connected to the Gulf of Mexico at "Gordon Pass." Near the seaward end of Naples Bay on its southerly margin is a connection with Dollar Bay, which extends southward of Naples Bay in the direction of Marco Island. Naples Bay contains a federally-maintained channel used for navigation and commerce.
Naples Bay is both a destination and a transit waterway used by local businesses, citizens, and tourists for recreational, business, and commercial purposes. It is used for a wide variety of boating purposes and interests, including commercial fishing, commercial charter boat operations,
recreational boating, and recreational fishing purposes, as well as by institutional/scientific users.
There are already vessel speed zones established on portions of Naples Bay. The City of Naples, however, adopted ordinance number 04-10664 (the ordinance) creating the additional slow speed zones at issue in this proceeding. The ordinance, adopted on November 17, 2004, establishes new slow speed zones or minimum wake zones in portions of Naples Bay, Dollar Bay, and Gordon Pass. The ordinance was adopted under the authority of Section 327.60, Florida Statutes (2004), which allows a city to adopt ordinances regarding vessel operations on waterways so long as such ordinances or local laws do not conflict with the provisions of Chapter 327, Florida Statutes, or rules promulgated under that chapter.
In order to implement the newly adopted slow speed zones the city applied for a Uniform Waterway Marker Permit (Permit) from the FWC on December 23, 2004, in accordance with Sections 327.40 and 327.41, Florida Statutes (2004), and Florida Administrative Code Rule 68D-23.
Section 327.40, Florida Statutes, provides that:
Waterways in Florida which need marking for safety or navigational purposes shall be marked [uniformly]. . . .
(2)(a) application for marking . . .
navigable water under concurrent jurisdiction of the Coast Guard and the
division shall be made to the division. . .
." (Emphasis supplied).
Section 327.40, Florida Statutes, was amended in 2000 to provide FWC with the authority to adopt regulations to implement that statutory section.
Florida Administrative Code Rule 68D-23.105 was amended by the FWC in 2001, pursuant to the statutory purpose of determining which waterways need marking for safety or navigational purposes. Since the time of that amendment the Rule (Florida Administrative Code Rule 68D-23.105(1)(b)), concerning the criteria for approval of regulatory markers, now provides that a valid vessel traffic safety or public safety purpose exists for "slow speed minimum wake" speed zones under the following facts and circumstances:
The Division shall find a valid vessel traffic safety or public safety purpose is presented for ordinances adopted pursuant to Section 327.60, Florida Statutes, under the following facts and circumstances:
* * *
(b) For a slow speed minimum wake boating restricted area if the area is:
* * *
Subject to unsafe levels of vessel traffic congestion.
Subject to hazardous water levels or currents, or containing other navigational hazards.
An area that accident reports, uniform boating citations, vessel traffic studies, or other creditable data demonstrate to present a significant risk of collision or a significant threat to public safety.
* * * Fla. Admin. Code R. 68D-23.105(1)(b).
The previous rules, prior to 2001, contained no similar factual criteria to those now found in the above-quoted rule. There are actually six factual criteria in the Rule, but only criteria four, five, and six, quoted above, are at issue in this proceeding, as stipulated by the parties.
The FWC issued a Notice of Intent to grant the permit stating that the FWC's Boating and Waterways Section found that the criteria in their referenced rule had been met. See City Exhibit 26 in evidence.
In arriving at this Notice of Intent to grant the permit application the FWC did not, however, independently make a determination or confirm that any of the factual circumstances referenced in the above Rule, and, specifically, subsections four through six of the Rule, actually existed. Rather, FWC assumed that all the statements in the application were true and issued the Notice of Intent to grant the permit.
Standing
Collier County is a political subdivision of the State of Florida. It expends county funds to provide for the patrol
and regulation of safety on the waters of Naples Bay. It regulates Naples Bay through the patrolling of the Collier County Sheriff's Office. Section 125.01(j), Florida Statutes, grants the powers and duties to counties to "establish and administer programs of . . . navigation . . . and to cooperate with governmental agencies and private enterprises in the development and operation of such programs."
Collier County also owns and operates the only county- owned boat launching facility on Naples Bay. Collier County citizens have the right to access and enjoy Naples Bay and the waters beyond Naples Bay through that access, including the Gulf of Mexico.
Collier County has concurrent jurisdiction over Naples Bay and, like the other Petitioners, is concerned with recreation and enjoyment of use of the waterways of Naples Bay, including access to the Bay and adjacent waterways through traverse of the bay.
The Petitioner, Eric Alexander is a resident of Collier County and has been for over 18 years. He is a licensed boat captain. He owns a charter boat business which operates in the waters of Naples Bay and adjacent waters in Collier County. He has recreational, commercial, navigational, and economic interests personal to him invested in the use of Naples Bay for both recreational and commercial purposes, as well as the access
it provides to additional waterways. Naples Bay provides
Mr. Alexander his only access to the Gulf of Mexico, where he takes his fishing charter parties in the conduct of his business. The proposed speed zones will have a substantial effect on his business and possibly his livelihood because the long transit times involved in the enactment of all the slow speed zones will tend to make his customers use charter boat businesses in other nearby areas that do not have to transit Naples Bay to reach fishing grounds, etc. His testimony of the substantial effect on his charter boat operations posed by the more pervasive slow speed zones was not refuted in the record. He established that his business will be substantially affected by the slow speed zones.
The Petitioner, Douglas Finlay has resided in Collier County and Naples for over 10 years. He has been a recreational boater for that period of time. He has recreational and navigational boating interests in Naples Bay, including the access it provides to the Gulf and to additional waterways. He is particularly concerned that the proposed speed zone being moved from the protected area, out to the entrance to the Gulf at Gordon Pass, will adversely impact boating safety. The slow speed zone at that point will adversely impact safe boating operation because sufficient power and steerage provided by higher speed must be maintained to safely navigate the sometimes
difficult wave, current, and wind conditions at the entrance to the Gulf. Mr. Finlay is directly affected in terms of his recreational boating and navigational interests by the imposition of the slow speed zones at issue. In terms of this concern, as well as, generally, the resultant long transit times through Naples Bay.
The Petitioner, James Pergola resides on the waters of Naples Bay by owning a home on a canal that communicates with the bay. He has been a resident of Collier County for more than
29 years and is a recreational boater. He uses the waters of Naples Bay for all purposes related to recreational boating, including simply operating his boat on and traversing the bay when bound to other locations, as well as for fishing. The proposed speed zones will adversely affect the recreational boating use and trips Mr. Pergola takes on the waters of Naples Bay by substantially increasing transit times through the waters of the bay, a restriction he deems unnecessary from a safety standpoint.
The Petitioner, Allen Walburn is a licensed boat captain and owns and operates a charter boat business. He conducts his charter boat operation in Naples Bay and adjacent waters of Collier County and the Gulf of Mexico. He has been a resident of Collier County since 1977. Mr. Walburn has commercial and economic interests which are intertwined with his
navigational interests in operating his vessels in the waters of the bay. The restrictions at issue would adversely affect his access and the time of access through the waters of the bay, to additional water ways and to the Gulf. The proposed speed zones, and their adverse effect on transit times through the bay will adversely affect Mr. Walburn's charter boat business. Some days he will not be able to operate two charters in one day, which will substantially reduce his revenue. Additionally, his charter boat customers over time will tend to migrate to charter boat businesses that operate in areas other than Naples Bay and which don't have the attendant long transit times in reaching fishing grounds caused by the proposed speed zones. Thus, the Petitioner Walburn is substantially affected by the proposed permit regarding the slow speed zones, in terms of both his recreational and commercial navigational interests and economic interests related to vessel operations in the waters of Naples Bay.
The MIACC is a non-profit trade association. Its members are made up of businesses which directly or indirectly operate in or are related to the marine industry in the vicinity of Naples Bay. Membership in the MIACC includes 60 or more businesses or persons located in Collier County. The members consist of recreational boaters, marina operators, yacht
brokers, boat dealers, boat yards, marine construction contractors, marine professionals and charter boat businesses.
The association members rely upon reasonable access and reasonable transit times to and through Florida waters and, in particular, Naples Bay. This is important to their engagement in commerce, including the selling, servicing, and maintenance of boats, marine contracting, charter fishing and general recreational boating.
The members' market for their products and services, their revenues and the costs of their doing business depends substantially on reasonable public access, transit and safe use of the navigable waters in Naples Bay and the use of adjacent waters, which requires Naples Bay transit.
Members of MIACC have lost some business in potential sales of boats and boat slip rentals, from customers who have elected not to locate boats or operate boats in Naples Bay because of the inconvenience caused by the speed zones. These additional speed zones have had the effect of discouraging recreational boating members or potential recreational boaters from boating on Naples Bay. At least one MIACC member has experienced several previous boaters placing their vessels with him for sale, ending their Naples Bay boating activities in the belief that the slow speed zones are, or soon will be, placed into effect.
The members of MIACC will incur additional time and costs in conducting sea trials of boats they are placing into service or repairing. The proposed slow speed zones leave only a small area of Naples Bay where boats are allowed to exceed slow speed. Consequently, the proposed slow speed zone will force all boat testing to occur in one small area of Naples Bay. That fact alone will create more congestion and possibly a safety issue in that more confined small area of the bay. It will render more difficult the operation of the members' businesses, which are involved in testing boats and boat engines, and other operational systems of boats, when placed into service as part of a new vessel or when performing repair work on vessels.
MIACC and its members' ability to navigate and conduct commerce in Naples Bay will be impeded by the proposed slow speed zones. They will substantially increase the time for fishing charter members to navigate to, from, and between fishing locations and will increase the time for recreational fishermen members of the association to navigate to and between their fishing grounds as well.
The proposed slow speed zones will affect MIACC members by causing additional vessel congestion caused by excessively slow speeds over a longer distance, thereby potentially creating a safety issue. An additional and somewhat
different safety issue will occur because the slow speed zones will reduce the maneuverability of the vessels moving at slow speeds, a different kind of safety issue than caused by vessels moving at excessive speeds, in terms of steerageway on slow moving vessels and the vessels ability to avoid collisions.
The proposed speed zones will affect the members traversing Naples Bay by slow speeds increasing the risk of dangerous weather conditions.
The corporate purpose of MIACC is to: represent and educate recreational boating citizens and members of the marine industry and its workforce in the promotion and protection of recreational boating as a traditional family and business past- time and element of commerce. It seeks to promote boating both commercially and recreationally as a source of business activity and tourism. It seeks to protect and enhance the environmental circumstances of Florida waterways. See MIACC Exhibit 26 in evidence.
Its purposes are further to promote improved conditions on the waterways of Collier County generally, and improved operating conditions for recreational boating and the commercial boating industries as well.
The interest of MIACC and its members in both commercial and recreational boating pursuits will be substantially affected if the relevant slow speed zones are
enacted which would pose a significant restriction beyond the limitation already prescribed by state and local law. This is because access to fishing and recreational areas will require longer travel time, with more areas of interest to the boating public eliminated from reasonable use. This will have a negative effect on the manufacture, sale, chartering, docketing, equipping, servicing, maintenance, and operation of boats on the bay and adjacent waterways.
The Intervenor, the Conservancy, is a Florida non- profit corporation organized in 1966 headquartered in Naples, Florida. Its purpose is the protection of the natural environment of Southwest Florida, including through environmental advocacy, education, and research. The Conservancy has approximately 4,100 members in Collier County.
The Conservancy has conducted scientific research in Naples Bay for more than 20 years in support of its mission. It published the Naples Bay study in 1979, which was one of the first comprehensive studies of that estuary system. That study, and the research conducted by the Conservancy since, involves sampling of water in Naples Bay, primarily to monitor the water quality. Those samples are taken throughout the bay by the Conservancy staff, as well as volunteers. They usually employ a 14-foot Carolina Skiff type fishing boat to perform this work. During the course of its boating experience, conducting its
sampling efforts in the bay, the Conservancy staff has encountered boat wake conditions which it believes threaten the safety of the small boat and its occupants which it uses for water sampling. It attributes those threatening boat wakes to the currently permitted boat speeds on Naples Bay and believes that slower boat speeds on the bay would make its research on the bay safer.
The Intervenor, Citizens, was incorporated in 1988 as a Florida non-profit corporation. Its primary mission is to preserve and protect Naples Bay by actively opposing any projects or efforts which it believes will adversely affect the bay and by actively supporting projects or efforts it believes will help to preserve or improve the bay. Citizens considers the physical, chemical, biological, and navigational safety questions involved, in matters concerning the bay, upon which it decides to take a position. Citizens has been involved in issues regarding Naples Bay over many years, including the Naples Bay Project Committee upon which its president, Harry Timmons, sat by appointment. That committee investigated Naples Bay safety and made recommendations to the Naples City Council regarding vessel traffic congestion and vessel speed zones.
Some 352 citizens members own homes on Naples Bay or on channels or canals connected to the bay. Both Mr. Timmins and Kirk Materne, members of Citizens, have taken positions
before the Naples City Council on a number of occasions concerning issues regarding vessel speeds on Naples Bay. Affidavits, introduced into evidence as corroborative hearsay, support the testimony adduced by Citizens to the effect that there are members in addition to Mr. Timmins who own and operate boats on Naples Bay and are affected in some way by the issues concerning boating safety and boating speeds on Naples Bay.
Both Mr. Timmins and Mr. Materne are boaters and have operated their boats on Naples Bay for many years.
Levels of Vessel Traffic Congestion
(Florida Administrative Code Rule 68D-23.105(1)(b)(4))
The applicant City presented the testimony of expert witness Andrew Anderson. Mr. Anderson is a Marine Consultant. Mr. Anderson is a graduate of the Coast Guard Academy and retired from the Coast Guard with the rank of Commander. He served as a boating and safety officer while in the Coast Guard and was certified as a 1,600 ton vessel master. He has captained vessels of varying sizes during his Coast Guard tenure. He has published articles and lectured on boating safety and has been recognized as an expert in boating safety, seamanship, and boating accidents in state and federal courts. He reviewed the City's exhibits, the depositions in this case, boating citations, accident reports, and Coast Guard commission records in preparing for his testimony.
Mr. Anderson believes congestion is any situation with a sufficient number of vessels within a certain geographic area and, given the speeds at which they are operating, that there will be a risk of collision if any operator makes a mistake. He described an example he believed constituted congestion around marker 18, where four boats were coming into close proximity of each other, creating an "unsafe condition."
Naples Bay's configuration more resembles a wide river than a bay. It is approximately 4.4 miles from marker seven, at the Gulf entrance to the bay, east and northeast to U.S. 41, the most inland extent of the bay. The bay is approximately one- quarter mile wide at its widest point. When Mr. Anderson observed conditions in Naples Bay by traversing it or a portion of it, he observed only approximately 20 to 30 boats. This was on a Tuesday afternoon for approximately two hours, some two weeks prior to the hearing; not as active a day for boating as would be a weekend day or a holiday. Mr. Anderson opined that he felt, "there is a problem with vessel traffic congestion, particularly at speed of 30 miles per hour." He believes that "the higher the speed, the fewer the vessels it takes to have a congested situation."
Thus Mr. Anderson expressed the view that Naples Bay was subject to unsafe levels of vessel traffic congestion. The basis for his opinion, however, was a mere two hours he spent on
Naples Bay on that Tuesday afternoon shortly prior to the hearing. Although he has a great deal of boat safety and operation expertise, as described above, he had not previously navigated Naples Bay for over 30 years until retained as an expert witness by the City.
During his two-hour tour of the bay, he found the bay to be congested and yet only saw 20 or 30 boats. Mr. Anderson conceded that the limited question that he was hired by the City to answer for this proceeding was "would the ordinance improve the safety of the boating public on Naples Bay?" He stated that it was his opinion that the ordinance would improve public boating safety. He also conceded that an idle speed zone on the entire Naples Bay (not proposed by the City in the ordinance or the permit application) would also improve safety, implicitly even more. He did not concede, however, that such an idle speed zone restriction for the entire bay would be appropriate.
Other subjective testimony, offered by the Petitioners, concerning assessment of vessel traffic congestion was provided by a number of witnesses who collectively have spent thousands of hours in navigation of Naples Bay at various times of the day, week, and year. Those witnesses, such as Captain Alexander, with more than 1000 hours per year navigation of Naples Bay; Captain Walburn, with more than 30 years operating on Naples Bay; Police Officer Ayers, who patrolled the
bay five days a week for the last three years; and the Petitioners Pergola and Finlay, collectively testified that it was their opinion that the bay was not subject to unsafe levels of vessel traffic congestion.
Objective evidence concerning vessel traffic congestion and representing an objective standard therefor, was presented by Petitioner MIACC's expert witness, Dr. Ed Baker. Dr. Baker has extensive site-specific knowledge of Naples Bay as he has previously conducted two vessel traffic surveys of the bay. These surveys analyze traffic patterns, numbers of vessels navigating the bay, and the inventory of vessels with access to the bay.
His previous two studies were based on the level of service methodology (LOS) similar to that used with studies of automobile traffic. The LOS methodology was first employed and used in Naples Bay in a study by Heniger and Ray, Inc., a consulting firm commissioned by the City of Naples to measure boat capacity on Naples Bay. The LOS methodology is used to measure the capacity of a system, in this case Naples Bay, and the demand for its use of that system. The LOS for any particular system is an "indicator of the extent or degree of service provided by a system," and it indicates the capacity per unit of demand for the facilities.
This methodology showed the carrying capacity of Naples Bay to be 528 vessels per hour (this is aside from the question of what level of congestion that represents).
In a roadway transportation system, the relationship between road capacity and the number of vehicles on the road is described by letters A to F. Each letter represents a range of vehicles using the road in comparison to the road capacity.
The A through F LOS categories are based on several operating conditions, such as traffic flow, number of vehicles, speed, and maneuverability. See MIACC Exhibit two in evidence.
The Heniger and Ray study applied the same LOS methodology to boat traffic on Naples Bay. The Heniger and Ray study, as well as Dr. Baker's studies, defined A to F LOS categories as follows:
Level A - represents a free flow condition in which there is little to no restriction on speed or maneuverability;
Level B - a zone of stable flow but the presence of other boats begins to be noticeable. Freedom to select speed is relatively unaffected;
Level C - a zone of stable flow; speed and maneuverability becomes affected at this level as a result of other boats;
Level D - usually a stable flow of traffic, but a high density of boats cause significant restriction on speed and maneuverability;
Level E - traffic in an unstable flow representing conditions at or near capacity of the system with speeds and maneuverability severely reduced because of congestion;
Level F - traffic in an unstable flow with speed and maneuverability extremely limited by severe congestion; frequent occasions of no forward progress.
Each level of service category is defined by increasing values of the volume to capacity ratio, such that LOS A described the situation where up to 15 percent of Naples Bay's carrying capacity is using Naples Bay. Therefore, under LOS A, up to 79 boats per hour would be using Naples Bay.
LOS B would describe a situation where up to 27 percent of Naples Bay's carrying capacity LOS is using Naples Bay or 143 boats per hour. LOS C would describe a situation where up to 43 percent of Naples Bay's carrying capacity LOS is using Naples Bay or 228 boats per hour. LOS D would describe up to 64 percent of the carrying capacity, or 338 boats per hour using Naples Bay. LOS E would then equate up to 100 percent of the carrying capacity or up to 528 boats per hour using the bay, and LOS F would describe a situation where boats would exceed the carrying capacity or more than 528 boats per hour resulting in gridlock.
The LOS methodology is an objective method by which to analyze vessel traffic on the bay established by the testimony and evidence elicited through Dr. Baker, as well as Dr. Staiger.
Dr. Baker's initial Boat Traffic Studies and Models conducted in 1999 and 2002 concluded that at peak times Naples Bay is at an LOS A or B level on 10 out of 13 segments of the bay. Of the remaining three segments, at those times, the LOS level was C. Prior to the hearing in this case, Dr. Baker again conducted a study and survey of the bay to assess the current boat traffic situation. He described that his recent 2005-2006 analysis showed that the LOS for the bay during a weekend in September 2005, and a holiday weekend in January 2006, was at an LOS A or B level. It is noteworthy that the Collier County Manatee Protection Plan adopts LOS C as the acceptable level of service for Naples Bay. The Naples Bay boat traffic studies and Dr. Baker's testimony indicate that there is no unsafe level of vessel traffic congestion on Naples Bay.
Major Paul Ouellette of the FWC, testified as to his finding that the permit application with its supporting documentation, and additional data, was insufficient to allow him to conclude that the new speed zones were warranted based upon an unsafe level of vessel traffic congestion.
The City of Naples Marine Unit Officer who testified, Russ Ayers, has over three years of daily patrolling experience
on Naples Bay. He found that Naples Bay is not subject to unsafe levels of vessel traffic congestion.
The Naples Bay traffic studies, including those of Dr. Baker and Dr. Baker's testimony, are more objective in terms of applying an objective standard and methodology. The methodology is deemed to be acceptable for practioners and by practioners in Dr. Baker's field of expertise. Because of the more extensive opportunity for observation of Naples Bay and its boat traffic and boat numbers, this testimony and evidence and that of Major Ouellette, Officer Ayers and the Petitioners Alexander and Walburn, is deemed more compelling, credible, and persuasive, than that offered by Mr. Anderson, Mr. Timmins and other evidence offered by the City or Intervenors. Safety concerns caused by boat wakes, boat speeds, and careless, discourteous or illegal operation by boat operators, which cause safety hazards, or fears of safety hazards, do not equate to unsafe levels of vessel traffic congestion. The preponderance of the persuasive evidence establishes that Naples Bay is not subject to "unsafe levels of vessel traffic congestion." Hazardous Water Levels, Currents or Other Navigational Hazards (Florida Administrative Code Rule 68D-23.105(1)(b)(5))
The Respondents and Intervenors contend that the proposed slow speed zones are needed in the Naples Bay area
because of hazardous water levels, currents or that the area contains other navigational hazards.
The City seems to contend that boats which are accelerating or decelerating upon leaving or entering the existing slow speed zones themselves constitute "navigational hazards." While the term "navigational hazard" is not defined in the statutes or rules at issue, it has been defined by the
U.S. Coast Guard in terms of "hazard to navigation" as "an obstruction, usually sunken, that presents sufficient danger to navigation so as to require expeditious, affirmative action such as marking, removal, or re-definition of a designated waterway to provide for navigational safety." 33 C.F.R. § 64.06 (2005). A "navigational hazard" within the meaning of Florida Administrative Code Rule 68D-23.105(1)(b)(5) equates in meaning to be the same as a "hazard to navigation" treated in the above federal rule related to the Coast Guard's jurisdiction. While boats operating under power might, under certain circumstances, (chiefly improper, careless, discourteous, or illegal operation,) be dangerous to the safety of other boaters or users of a waterway, they do not comport with the generally accepted sense of what "navigational hazard" means. It means a fixed object which poses a hazard to navigation of any or all boats operating under power or sail or human propulsion; examples being a sunken vessel, an oyster bar, a shoal, a stump or any
other object which might pose a danger if struck by a moving vessel.
Some witnesses, such as Captain Walburn, Dr. Staiger, witness Davis, and witness Timmins described such factors as a dock in the channel (encroaching somewhat apparently) between marker 21 and marker 23, narrow or serpentine portions of the Naples Bay Channel, and strong tidal currents in several areas, There is no persuasive evidence, however, to show these are anything other than normal physical complications to be contended with by a reasonably prudent mariner, operating a vessel in the areas in question. They do not pose hazardous conditions, in terms of water levels, currents, or navigational hazards.
Thus, there is no preponderant, persuasive evidence that the area of the proposed slow speed zones includes any areas that are subject to hazardous water levels, currents, or contains other navigational hazards. This is established by the testimony of Officer Ayers, among others. Major Ouellette established with his testimony that the permit application with supporting documentation and additional data he reviewed was not sufficient for him to be able to conclude that the new speed zones were warranted because of the area being subject to hazardous water levels, currents, or because it contains other navigational hazards. Thus the preponderant evidence
demonstrates that the proposed slow speed zones are not for areas that are subject to these hazardous factors.
Whether there is a Significant Risk of Collision or a Significant Threat to Public Safety as Demonstrated by Accident Reports, Boating Citations, Vessel Traffic Studies, or Other Creditable Data
Florida Administrative Code Rule 68D-23.105(1)(b)(6)
The City adduced testimony from its expert witness, Mr. Anderson, as well as its other witnesses, as did the Intervenors, to the general effect that slowing of boat speeds on Naples Bay would render the bay safer for boat operation and traffic. Such testimony from Mr. Timmins and others, recounted anecdotal incidents where boating accidents occurred. Several of these caused injuries, boat damages, threw boating passengers out of their seats, on one occasion swamped a small boat, and caused another boat to take on water, due to excessive boat wakes of passing vessels. Mr. Timmins has boated on the bay for many years and does not feel safe or comfortable at certain times and in several areas in the bay. He described two places where the channel is significantly narrow and where he described what he felt were unsafe conditions caused by converging boat traffic, such as at the convergence of the Naples Bay channel with the channel entering into Dollar Bay.
It is logical to assume that if boat speeds could effectively be substantially reduced or possibly the horsepower of boats or the size of boats using Naples Bay could be
drastically reduced, or the numbers of boats using the bay substantially decreased, that Naples Bay could be rendered "safer." However, rendering Naples Bay simply "safer" is not the factual showing required by the above-referenced rule (or the legal standard imposed by it in order for the FWC to issue the waterway marker permit). Rather, the above-referenced sources of information, described in the rule, must demonstrate a significant risk of collision or a significant threat to public safety in order to demonstrate a need for the imposition of the slow speed zones.
Accident Reports
The MIACC entered its Exhibit 31 into evidence.
Exhibit 31 is a summary chart analyzing vessel accidents occurring in Naples Bay between the years 2000-2004. It was prepared by the FWC.
Major Ouellette of the FWC, in his expert opinion, concluded that while a total of 17 vessel accidents occurred over that approximate five year period, only four of them could be relevantly linked in their cause and effect to the boat speeds involved, such that new slow speed zones might have prevented those four accidents (assuming the operators involved were complying with the regulation). Indeed, most accidents occurred with vessels already operating in existing slow or idle speed zones or attempting to dock.
The evidence adduced by the City and the Intervenors referenced individual reports of some eight accidents occurring over the five-year period, which they maintain are relevant, such that new slow speed zones might have prevented the accidents.
Dr. Baker performed an analysis correlating the number of accidents to the number of vessel trips taken in Naples Bay, however. Dr. Baker's analysis using the eight accidents contended to be relevant by the City and the Intervenors, rather than Major Ouelette's finding of four relevant accidents, determined that there was one boat accident for every 67,500 boat trips in Naples Bay during that period of time. One accident per 67,500 boat trips does not establish a significant risk of collision or significant threat to public safety in Naples Bay predicated on the accident reports. Eight accidents over a five-year period is not a "significant risk of collision or significant risk to public safety."
The City of Naples Police Department's Marine Unit is charged with enforcing regulations on Naples Bay. It monitors and compiles reports of boating accidents and makes yearly summaries thereof. If the Marine Unit identifies or experiences a significant risk of collision or threat to public safety due to accidents, then additional enforcement action will be taken such as dispatching additional officers to patrol the bay,
changes in their schedules or other efforts to reduce the risk or threat concerning collision or public safety. No such action has been taken by the Marine Unit in terms of additional enforcement efforts because, as established by Lt. Traczyk, it experienced no significant risk of collisions or treats to public safety.
If such additional enforcement actions were taken and they did not successfully reduce the risk of collision or threats to public safety, the police department's Marine Unit would inform its superiors, such as the chief of police or other officials, that additional measures, such as more stringent regulations, were needed. The City police department, through Chief Moore, however, has not informed or notified the City manager, City counsel or other City officials that additional regulations were needed to address any safety issues on Naples Bay. It did not deem such issues to be significant enough.
No Marine Unit Officers have informed their commanders that safety issues existed on the bay because of accidents or congestion of boats. The police department therefore has never suggested or recommended additional speed zones because of accidents or vessel traffic congestion or significant risk of collision or threats to public safety.
Major Ouellette established, with his expert testimony, that the accident data did not demonstrate "a
significant risk of collision or significant threat to public safety." Thus, the preponderance of persuasive evidence regarding accident data and experience on Naples Bay does not demonstrate that a significant risk of collision or significant threat to public safety exists on the bay.
Boating Citations
An analysis of the boating citations found approximately 180 citations issued per calendar year for the bay. The vast majority of these citations were issued for vessels violating existing slow speed or idle speed zones. Since the vast majority of citations are issued for violators operating their vessels in existing slow speed, minimal wake or idle speed zones it cannot logically be concluded that the addition of speed zones would reduce boat operators' violations of boating speed limits, whether of the present ones or those
proposed. Thus, it has not been established how the fact of the boating citations, in evidence, served to demonstrate a significant risk of collision or a significant threat to public safety, implicating a need for additional speed zones. The fact of the boating citations may demonstrate an enforcement issue or a boat operator education issue, but they do not demonstrate a need for additional speed zones. In fact, to the contrary, Major Ouelette, in his expert opinion, which is accepted,
established that boating citations were insufficient to support a conclusion that new slow speed zones were needed.
Vessel Traffic Studies
As found above, Dr. Baker's testimony and his vessel traffic studies and analysis demonstrate that Naples Bay is operating below its capacity and essentially at LOS A and B. Thus the vessel traffic studies in evidence do not demonstrate "a significant risk of collision or significant treat to public safety" on Naples Bay.
Whether "Other Creditable Data" Represents a "Significant Risk of Collision or a Significant Threat to Public Safety"
The City's expert witness, Andrew Anderson, opined, based upon his review of the permit application and its supporting data, coupled with only a two-hour observation and experience of conditions on Naples Bay, that the areas proposed for the pertinent speed zones did present a significant risk of collision or significant threat to public safety.
The City's own Marine Unit police officer, Russ Ayers, has had more than three years' experience of daily patrols on the water on Naples Bay. He found no significant safety issues on Naples Bay, nor any significant risk of collision or threat to public safety on the bay.
Additionally, the Petitioner's witnesses, Police Chief Moore and Lt. Traczyck, determined that there were no
significant safety issues on Naples Bay and that a significant risk of collision or of a threat to public safety did not exist. These witnesses established that if the Police Department Marine Unit personnel identify or observe a significant risk of collision or threat to public safety then additional enforcement action or additional regulation would be taken, as found above, in order to alleviate the risk. The Marine Unit has not seen fit, due to its observances, to embark on such additional enforcement actions.
Additionally, two Collier County Sheriff's Department Marine Unit Deputies, Rocco Marion and Joe Scalora have extensive experience operating and observing boat traffic and Marine conditions on Naples Bay. They have found no significant risk of collision or significant threat to public safety on Naples Bay.
Because it was based upon thousands of hours operating vessels on Naples Bay, at all times of the day, week and year, the testimony of Capt. Alexander established that the bay does not experience a significant risk of collision or threat to public safety. His testimony is corroborated by that of Major Ouelette, as found above.
In summary, the testimony and evidence adduced by the Petitioners is more credible, persuasive, and compelling than that of the Respondents and Intervenors. It is accepted as the
most "creditable data" in establishing that the proposed slow speed zones are not in areas where accident reports, uniform boating citations, vessel traffic studies, or other creditable data demonstrate a significant risk of collision or significant risk to public safety.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005).
The issue of the applicant's entitlement to a permit is governed by Chapter 327, and specifically Sections 327.40 and 327.41, Florida Statutes (2004), as implemented by Florida Administrative Code Chapter 68D-23.
If an agency notices its intent to grant a permit application, the applicant for the permit has the initial burden to establish a prima facie case at the administrative hearing as to entitlement to the permit. Florida Department of Transportation v. J.W.C. Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). Once the applicant has established its prima facie case, the burden to go forward with evidence contrary thereto shifts to the Petitioners to present contrary evidence of equivalent quality. J.W.C. Company, Inc., supra at 789, 790.
The issuance of the permit must be based solely on compliance with the applicable permit criteria contained in
statute or rule. Counsel of the Lower Keys v. Toppino, 429 So. 2d 67 (Fla. 3rd DCA 1983).
Standing
The burden is on the Petitioners to establish their standing. See Department of Health and Rehabilitative Services v. Alice P., 367 So. 2d 1045, 1052 (Fla. 1st DCA 1979).
Section 120.569(1), Florida Statutes, provides for proceedings to determine the "substantial interests of a party." In order for an association to have standing as a substantially affected party, it must demonstrate that:
A substantial number of its members, although not necessarily a majority, are 'substantially affected' by the challenged rule; [2] the subject matter of the rule [is] within the association's general scope of interest and activity; [3] the relief requested [is] of the type appropriate for a trade association to receive on behalf of its members.
Florida Home Builders Association v. Department of Labor and Employment Security, 412 So. 2d 351, 353-54 (Fla. 1982); Farm Workers Rights Org., Inc., v. Department of Health and
Rehabilitative Services, 417 So. 2d 753, 754 (Fla 1st DCA 1982) (which extended the three part associational standing test to proceedings in which substantial interests are determined under (now) Section 120.569, Florida Statutes).
In order for an individual to have standing as a substantially affected party, he or she must establish; "(1) a
real and sufficient immediate injury in fact; and (2) that the alleged interest is arguably within the zone of interest to be protected or regulated." See, e.g., Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995).
MIACC
Representatives of the MIACC, who regularly navigate the waters of Naples Bay, testified that they and their members will be injured by the slow speed zones' interference with their rights to navigate, boat, and conduct commerce. The proposed slow speed zones will have an adverse effect on commerce in Naples Bay.
Members of MIACC showed that the speed zones will impede their ability to conduct commerce and traverse the bay by markedly increasing travel time. In addition, the proposed slow speed zones themselves will create safety issues with regard to boating traffic. Among the interests regulated and protected by Chapter 327 and Sections 327.40 and 327.41, Florida Statutes, as implemented by Florida Administrative Code Chapter 68D-23, are navigation safety and commerce. These statutes and rules, in effect, provide a zone of interest protection that can be asserted against needless and unwarranted waterway regulation.
The MIACC's interests and its activites include the promotion and protection of recreational boating as a
traditional past-time and source of tourism commerce, the promotion of improved conditions and general well-being of the commerce and navigation of waterways in Collier County. These interests and activities occur within the zone of interest protected by Chapter 327, Florida Statutes, and Florida Administrative Code Chapter 68D-23. Therefore, it has been demonstrated that MIACC and its members are "substantially affected" by the issuance of the permit and any resulting additional slow speed zones.
The preponderant, persuasive evidence has established that the above-referenced, three-part associational standing test has been met. Concerning the first factor of that test, regarding a substantial number of the association's members being "substantially affected," it has been stipulated that two members of MIACC would constitute a substantial number. It has thus been established that a substantial number of the members will be adversely affected, in view of this stipulation, as well as the preponderant, persuasive evidence adduced by MIACC and the other Petitioners.
It has also been established by preponderant, persuasive evidence that the use and regulation of the waterways in Naples Bay, including the regulation imposed by the permit application at issue, occurs within MIACC's general scope of interest, activity and purpose. The relief requested by MIACC
is the appropriate type of relief to seek and receive on behalf of its members. Accordingly, it has been established that MIACC has standing.
Collier County
Collier County is a political subdivision of the State of Florida. Section 327.22(1), Florida Statutes, provides: "nothing in this chapter shall be construed to prohibit any municipality or county that expends money for the patrol, regulation, and maintenance of any lakes, rivers, or waters, and for other boating-related activities in such municipality or county, from regulating vessels resident in such municipality or county." This statute also provides, "any county and the municipalities within the county may jointly regulate vessels." See § 327.22(1), Fla. Stat.
Collier County thus has concurrent jurisdiction over the waters in question, along with the municipality of Naples (and the FWC for that matter). Thus it has an interest in regulating vessels and expends funds for patrol and regulation of the waters in question. The regulation of those waters posed by the permit application, and rule at issue, implicate issues that arise within the "zone of interest," in which the county's substantial interests have the opportunity for protection.
Collier County's standing is also borne out by the language in Section 125.01(j), Florida Statutes, which grants
powers and duties to counties to "establish and administer programs of . . . navigation . . . and cooperate with governmental agencies and private enterprises in the development and operation of such programs."
Moreover, Collier County has standing to challenge the agency action in this proceeding based on its particular substantial interests. Collier County owns and operates the only county-owned boat launch facility on Naples Bay. Collier County's standing is also supported by the language of Florida Administrative Code Rule 68D-23.104, concerning the placement of markers, wherein it provides: "the division must consult, coordinate, or cooperate with any other governmental entity having concurrent jurisdiction over the waters for which the permit is required." While the use of the word "may" indicates that such coordination or cooperation is not a mandatory burden on the FWC, this rule language also contemplates a "zone of interest" or opportunity within which the county may advance or protect its substantial interests.
Section 120.52(12)(b), Florida Statutes, defines party as one "whose substantial interest will be affected by proposed agency action, and who makes an appearance as a party." The relief requested by Collier County in this proceeding is an appropriate type of relief and occurs among its substantial interests which it is authorized to seek to protect in a
proceeding such as this. Accordingly, the preponderant, persuasive evidence establishes the standing of Collier County to participate in this proceeding in opposition to the permit sought.
Pro Se Petitioners
Individuals seeking to establish standing as a substantially affected party must show, "(1) a real and sufficiently immediate injury in fact; and (2) that the alleged interest is arguably within the zone of interest to be protected or regulated." See Ward v. Board of Trustees of the Internal
Improvement Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995). The Petitioners' feared injury is real and immediate since the proposed slow speed zones will have a substantial effect on each of them.
Among the interests regulated and protected by Chapter 327, including Sections 327.40 and 327.41, Florida Statutes, as implemented by Florida Administrative Code Chapter 68D-23, are navigation, safety, and commerce. These statutes and rules protect against needless and unwarranted regulation of waterways. The pro se Petitioners' interests are thus within the zone of interest protected by Chapter 327, Florida Statutes, and Florida Administrative Code Chapter 68D-23.
The proposed speed zone changes will have a substantial effect on Captain Walburn and his charter boat
business. Captain Walburn is an affected party as an individual because he navigates vessels on Naples Bay for both recreational and commercial boating purposes. He runs a business of taking charter fishing party clients fishing in the waters in and around Naples Bay, especially in the Gulf of Mexico. He has to be able to navigate Naples Bay in a timely fashion in order to conduct this aspect of commerce on Naples Bay. His ability to navigate and conduct commerce on Naples Bay will be significantly impeded if the slow speed zones are enacted.
The same is true of the interests of Captain Alexander. His livelihood, like Walburn's, is dependent on being able to reasonably navigate Naples Bay to conduct commerce in the form of charter fishing parties through his charter boat business. He, like Walburn, navigates vessels on Naples Bay for this commercial boating purpose, as well as for recreational purposes. His ability to navigate and conduct commerce on Naples Bay will be significantly impeded if the permit, with its speed zones, is issued. Both Captain Walburn's and Captain Alexander's interests will be adversely affected. One reason they will be is that, in the conduct of the charter fishing operations, half-day trips are important. If the 4.4 mile stretch of Naples Bay is essentially rendered a slow speed zone, the long transit times involved, coupled with the already operative time period spent preparing for each charter boat
trip, and in winding it up after return to the docks, may have the significant, adverse effect of largely eliminating the ability to do a second half-day trip per day for Captain Alexander and Captain Walburn and their businesses. Their rights and ability to access and reasonably use Naples Bay for navigation and commerce would be substantially limited and unreasonably restricted based upon the preponderant, persuasive evidence adduced in this proceeding. Thus both Captain Walburn and Captain Alexander have standing.
James Pergola is an affected party. He is an individual who navigates vessels on Naples Bay for recreational purposes. His navigation will be substantially impeded if the City's permit is issued because of the long transit times engendered in traversing Naples Bay to the Gulf. The proposed restrictions will limit Pergola's access to the Gulf and to other destinations beyond Naples Bay, including south through Dollar Bay to Marco Island.
The same sort of considerations apply to Douglas Finlay, who also uses the bay to navigate vessels for recreational purposes. The same sort of impediments will affect the Petitioner Finlay. These Petitioners, particularly the Petitioner Finlay established that if the slow speed zones involve the area where Naples Bay, through the pass, communicates with the Gulf, then slow speed zones can pose an
actual danger to vessels and passengers navigating that area. This is particularly so when outgoing tides collide with landward bound winds and waves. This can cause very rough seas and dangerous currents. Under these conditions vessels moving slowly may be endangered versus those moving at a reasonable speed and thus more able to safely steer and quickly navigate through the dangerous area referenced. It has thus been established by preponderant, persuasive evidence, given the above findings of fact, that the Petitioners Pergola and Finlay also have standing.
The Conservancy has standing in accordance with Sections 120.57 and 120.52(12)(b), Florida Statutes, because of its asserted substantial interests, with regard to the general category of scientific research on Naples Bay, through the use of a small boat for its staff, it fears it may be affected by the outcome of this proceeding. It is concerned with the safety of its researchers during their boating experience on Naples Bay. The boating safety question or concern by the Conservancy is properly within the zone of interests protected by the statutes involved in this case, as well as the above-cited rule. The Conservancy is a non-profit Florida Corporation incorporated for more than one year prior to its intervention in this case and has more than 25 members in Collier County. It was formed for the purpose of protecting the environment, fish and wildlife
resources and water quality. It thus also has standing for purpose of Section 403.412(6), Florida Statutes.
Citizens also has standing under Sections 120.57 and 120.52(12)(b), Florida Statutes, because of its fears that its substantial interest, referenced in the above findings of fact, with regard to Naples Bay will be affected by the outcome of this proceeding. It has a concern for the safety of its members operating their vessels on Naples Bay, and public boating safety is clearly within the zone of interests protected by the statutes involved in this proceeding, as well as the referenced rule regarding permit approval. Citizens has standing for purposes of Section 403.412(6), Florida Statutes, because it is a Florida non-profit corporation which has been incorporated for more than a year prior to its intervention in this proceeding. It has more than 25 members in Collier County and was formed for the purpose of protecting the environment and water quality in Naples Bay.
Waterway Marker Permit Application Approval Criteria: Florida Administrative Code Rule 68D-23.105(1)(b)
The Respondent FWC contends that it is not required to make an independent factual determination concerning whether the application and supporting documentation meet one of the six enumerated factual circumstances or criteria contained in Florida Administrative Code Rule 68D-23.105(1)(b). Rather, it
maintains that it has a duty to simply determine, when it receives a waterway marker permit application, whether the necessary items or documents are included in the application. The commission in essence contends that it accepts all factual statements as true because in its view, it cannot question the findings of the local legislative body, here the Naples City Council in enacting a local ordinance, on authority of Lee County v. Lippi, 662 So. 2d 1304 (Fla. 2nd DCA 1995) and Ventura v. Lee County, 18 FALR 3076 (Final Order entered June 17, 1996).
The Lee County and Ventura decisions are inapplicable to this case. Both of those cases involved direct challenges to a local government's ordinance. In those cases attacks were made on the ordinances themselves. In the instant case the Petitioners are not challenging any aspect of the ordinance, but rather are challenging the permit application and the factual statements made in the application. The Lee County and Ventura decisions are thus inapplicable. Even if they were applicable, they have since been statutorily over-ruled.
In 1996, when the Lee County and Ventura cases were decided, Florida Administrative Code Rule 68D-23.105(1)(b), did not exist. A predecessor, Florida Administrative Code Rule 63N- 23, contained no fact-based criteria such as those now found in Florida Administrative Code Rule 68D-23.105(1)(b).
Section 327.40(1), Florida Statutes, provides that:
Waterways in Florida which need marking for safety or navigational purposes shall be [uniformly] marked . . . (emphasis supplied)
Section 327.40(2)(a), Florida Statutes, further requires, after the submission of an application that the "division will assist the applicant to secure the proper permission from the Coast Guard, make such investigations as needed, and issue the permit." (emphasis supplied)
After the Lee County and Ventura decisions, the Legislature amended Section 321.40(2)(c), Florida Statutes, in 2000, specifically authorizing FWC to "adopt rules pursuant to Chapter 120 to implement this section."
Thereafter in December 2001, the FWC amended Florida Administrative Code Rule 68D-23.105(1)(b), implementing the statutory mandate to adopt rules. This rule set forth the circumstances when waterways need marking for safety or navigational purposes. The rule sets forth six fact-based circumstances in which waterways need marking for safety or navigational purposes.
The division shall find a valid vessel traffic safety or public safety purposes is presented for ordinances adopted pursuant to Section 327.60, Florida Statutes, under the following facts and circumstances:
* * *
(b) For a slow speed minimum wake boating
restricted area if the area is:
* * *
Subject to unsafe levels of vessel traffic congestion.
Subject to hazardous water levels or currents, or containing other navigational hazards.
An area that accident reports, uniform boating citations, vessel traffic studies, or other credible data demonstrate to present a significant risk or a significant threat to public safety. (Emphasis supplied).
The plain language of Florida Administrative Code Rule 68D-23.105(1) requires the Respondent FWC to make factual findings. Florida Administrative Code Rule 68D-23.105(1) provides, "the division shall find "
When a statute or rule is clear and unambiguous, the court will look at the plain language and give each word its full effect and meaning, irrespective of the agency's interpretation of the statute or rule. See Atlantis Perdido Association, Inc., v. Bobby L. Warner, 932 So.2d 1206 (Fla. 1st DCA 2006), quoting from State Department of Revenue v. Lockheed Martin Corp., 905 So. 2d 1017, 1022 (Fla. 1st DCA 2005) (holding that a court "need not consider the department's interpretation of the statute's legislative history" when the statute or rule is "clear and unambiguous").
The Respondents' and Intervenors' position that the FWC may accept the City's statement in the permit application to the effect that the application meets any one of the six criteria of Florida Administrative Code Rule 68D-23.105, under the theory that the Ventura and Lee County decisions preclude the FWC from addressing the validity of the local government ordinance, ignores the plain meaning of that rule and is clearly erroneous. See Atlantis Perdido Association, Inc., v. Bobby L. Warner, supra. ("DEP's expertise requires us to consider its construction of the statute carefully, but 'nothing requires that we defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency'") (quoting from Sullivan v. Florida Department of Environmental Protection, 890 So. 2d 417, 420 (Fla. 1st DCA 2004)).
The Respondent FWC has the authority and obligation to consider the City's permit application and make its own independent analysis and determination as to whether the permit application meets one of the six factual circumstances or criteria of the FWC's own rule, Florida Administrative Code Rule 68D-23.105(1)(b). While an agency's interpretation of its own rules should be afforded deference, "judicial adherence to the agency's view is not demanded when it is contrary to the statutes [or rules] plain meaning." Sullivan v. Florida Department of Environmental Protection, 890 So. 2d 417, 420
(Fla. 1st DCA 2004) quoting Warner v. Department of Insurance and Treasury, 689 So. 2d 1211, 1214 (Fla. 1st DCA 1997). "The agency is obligated to follow its own rules." Vantage Healthcare Corp., v. Agency for Health Care Administration, 687 So. 2d 306, 308 (Fla. 1st DCA 1997).
The Respondent FWC and the City's position that it merely reviews the waterways marker application at issue to determine whether all the necessary information has been provided in the application would render the FWC's duty only a ministerial one. It would not thereby independently make a determination or confirmation that any of the factual scenarios or criteria of the FWC's own rule has been met. Such an interpretation is, however, contrary to the plain meaning of both Section 327.40, Florida Statutes, and Florida Administrative Code Rule 68D-23.105(1)(b). It would render those sections and criteria meaningless. It cannot be concluded that the Legislature, in enacting Section 327.40, Florida Statutes, and the commission, in 2001, when it enacted the subject rule, did so, without a reason. There would be no purpose for the statute or the Rule, in having specific factual criteria for the grant of a permit, if the agency (and the Division of Administrative Hearings by referral of the formal proceeding challenging the agency permitting action) could not judge whether the criteria in the Rule have been met.
The Respondent City, has maintained throughout the proceeding that FWC and the Division of Administrative Hearings have no jurisdiction to consider the wisdom or validity or purpose behind the ordinance adopted by the Naples City Council. That position, however, confuses a review of the permit application at issue with a review of the validity of the ordinance.
As concluded above, Florida Administrative Code Rule 68D-23.105(1)(b) contains six specific fact-based circumstances concerning when issuance of the waterway marker permit would be authorized. Such a fact-based determination as to whether the permit application meets those criteria is properly the subject of an FWC determination and, by referral of the related formal proceeding, of a determination by the Division of Administrative Hearings.
The Respondent, City elicited testimony from its expert witness as well as another number of witnesses to the general effect that slower speeds on Naples Bay would make the bay "safer." However, making the bay safer is not the factual or legal standard that the Rule requires in order for a determination that the waterway marker permit should be issued. Rather, a determination must be made whether the three factual circumstances remaining at issue exist in order to determine whether the permit should be issued.
Whether the Slow Speed Zone is in an Area Subject to "Unsafe Levels of Vessel Traffic Congestion"
Florida Administrative Code Rule 68D-23.105(1)(b)(4).
The preponderant, persuasive evidence culminating in the above findings of facts established that Naples Bay is not subject to unsafe levels of vessel traffic congestion. This was shown both by subjective testimony of witnesses as well as through the objective standard elicited through the testimony and evidence brought forth through the Petitioner's expert,
Dr. Baker. The LOS methodology is an objective method by which to analyze vessel traffic congestion.
The preponderant, persuasive evidence shows that the bay currently experiences a LOS A or B at peak times and that a small portion of the bay, or three segments thereof, from
Dr. Baker's study, operates at LOS C at peak times. LOS C was shown by preponderant evidence to be an acceptable LOS for safe operation of vessels on Naples Bay. Even if it did demonstrate some congestion, it does not demonstrate "unsafe levels" of vessel traffic congestion. The City and Intervenors did not adduce preponderant, persuasive evidence that any alleged congestion level was "unsafe." The testimony and evidence adduced by the Petitioners is found to be of a more persuasive and creditable quality than that adduced by the City or Intervenors in this regard and the proposed slow speed zones are
not found to be in areas that are "subject to unsafe levels of vessel traffic congestion."
Whether the Slow Speed Zones is in an Area "Subject to Hazardous Water Levels or Currents, or Containing Other Navigational Hazards"
Florida Administrative Code Rule 68D-23.105(1)(b)(5)
The preponderant, persuasive evidence does not demonstrate that new speed zones are warranted because it does not demonstrate that the area in question is subject to hazardous water levels or currents or contains other navigational hazards. This is so even if other navigational hazards included vessels moving under power or sail, because of the findings and conclusions herein regarding the lack of unsafe levels of vessel traffic congestion and the lack of a significant risk of collision or significant threat to public safety posed by vessel traffic. Moreover, the testimony concerning strong currents and water levels did not rise to a level of proof establishing that there are hazardous water levels or currents which cannot be safely negotiated by reasonably prudent boat operators, operating under extant legal restrictions such as existing speed zones and the regulations emanating from the United States Coast Guard regulations, and/or state requirements, commonly referred to as "the rules of the road." The preponderant, persuasive evidence demonstrates that the area where the speed zones are proposed is not subject to
hazardous water levels or currents and does not contain other navigational hazards.
Whether the Slow Speed Zone is in an Area "That Accident Reports, Uniform Boating Citations, Vessel Traffic Studies,
or Other Credible Data Demonstrate to Present a Significant Risk of Collision or Significant Threat to Public Safety"
Florida Administrative Code Rule 68D-23.105(1)(b)(6)
The preponderant, persuasive evidence, culminating in the above findings of fact, shows that over the last five years a minimum of four accidents or a maximum of eight vessel accidents might have been prevented by the proposed speed zones, assuming that boater compliance with the slow speed zones proposed could be maintained.
One accident for every 67,500 boat trips on Naples Bay, however, does not present a "significant risk of collision."
The vast majority of vessel accidents occurring in the bay take place in already existing slow speed or idle speed zones. The preponderant evidence shows that accidents and the uniform boating citations issued by law enforcement occur the vast majority of the time in the already existing slow or idle speed zone areas because boating operators have failed to abide by existing law, including, even where proposed slow speed zones do not exist, the mandatory "rules of the road" requirements. Thus, the preponderant evidence relating to accident data on Naples Bay, as well as to the records concerning boating
citations issued on Naples Bay, demonstrates that the proposed slow speed zones are not in an area of "a significant risk of collision or significant threat to public safety." For the same reasons, relating to vessel traffic congestion, the vessel traffic studies do no demonstrate that the proposed slow speed zones are in an area that presents "a significant risk of collision or significant threat to public safety."
In summary, the expert opinion and evidence adduced from Dr. Baker, as well as the testimony of Major Ouellette and the five law enforcement officers who are responsible for daily patrols on Naples Bay, is more credible and persuasive evidence and data. This evidence, along with the other evidence adduced by the Petitioners, shows that the areas proposed for the slow speed zones in Naples Bay do not present a "significant risk of collision or significant threat to public safety." (Emphasis supplied). Thus, the evidence adduced by the Petitioners is deemed more credible, persuasive, and preponderant in quality, resulting in the conclusion that the permit should not be issued
as proposed.
Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED: that a final order be entered by the Florida Fish and Wildlife Conservation Commission denying the subject waterway marker permit.
DONE AND ENTERED this 22nd day of December, 2006 Tallahassee, Leon County, Florida.
S
P. MICHAEL RUFF Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
COPIES FURNISHED:
Elise M. Matthes, Esquire Captain Allen Richards, Esquire Florida Fish and Wildlife
Conservation Commission 620 South Meridian Street
Tallahassee, Florida 32399-1600
Frank E. Matthews, Esquire Kent Safriet, Esquire Hopping, Green & Sams, P.A.
123 South Calhoun Street Post Office Box 6526
Tallahassee, Florida 32314-6526
Douglas Finlay
3430 Gulf Shore Boulevard North, No. 5H Naples, Florida 34103-3681
Jeffrey A. Klatzkow, Esquire Colleen M. Greene, Esquire Collier County Attorney's Office 3301 East Tamiami Trail
Naples, Florida 34112-4902
Allen Walburn
678 14th Avenue South Naples, Florida 34102-7116
Eric Alexander 654 Squire Circle
Naples, Florida 34101-8352
Jack Hall
2675 Bayview Drive
Naples, Florida 34112-5825
James Pergola
1830 Kingfish Road
Naples, Florida 34102-1533
Dave Sirkos
750 River Point Drive Naples, Florida 34102-1400
Mimi S. Wolok, Esquire 1112 Trial Terrace Drive Naples, Florida 34103-2306
Robert G. Menzies, Esquire James D. Fox, Esquire Roetzel & Andress
850 Park Shore Drive, Suite 300
Naples, Florida 34103
Ralf G. Brookes, Esquire
1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904
Michael R.N. McDonnell, Esquire McDonnell Trial Lawyers
5150 Tamiami Trial North, Suite 501
Naples, Florida 34103
Ken Haddad, Executive Director Florida Fish and Wildlife
Conservation Commission Bryant Building
620 South Meridian Street Tallahassee, Florida 32399-1600
James V. Antista, General Counsel Florida Fish and Wildlife
Conservation Commission Bryant Building
620 South Meridian Street Tallahassee, Florida 32399-1600
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 10, 2008 | Agency Final Order | |
| Mar. 21, 2007 | Agency Final Order | |
| Dec. 22, 2006 | Recommended Order | Respondent City of Naples failed to show that delineating new slow boat speed zones with a waterway marking permit was needed for vessel traffic congestion, significant risk of collision or threat to public safety. Recommend that the permit be denied. |
