The Issue The issue in this case is whether proposed Rule 62- 302.700(9)(i)38, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact The Setting of the Proposed Wiggins Pass OFW The proposed Wiggins Pass--Cocohatchee River Outstanding Florida Waters (Wiggins Pass OFW) is described in proposed subsection 38 of Rule 62- 302.700(9)(i). The Wiggins Pass OFW comprises the estuarine and marine waters from the Lee/Collier County line southward through and including Water Turkey Bay to 50 feet north of S.R. 846 (Bluebird Ave.) 1995 right- of-way; the Cocohatchee River downstream from 50 feet west of U.S. 41 1995 right-of-way; and Wiggins Pass; but excluding maintenance dredging . . .. The proposed Wiggins Pass OFW runs four miles north and south. On the north, it is generally bordered by Bonita Beach Road on the Lee County line. The west border parallels the east shoreline of narrow beach peninsulas extending north and south of Wiggins Pass, which connects the Gulf of Mexico with interior waters to the east. The east border of the proposed Wiggins Pass OFW is the most variable. The northern two-thirds of the proposed OFW ranges between one-half to one mile wide. At Wiggins Pass, the proposed OFW widens to almost two miles, running upstream to 50 feet west of the U.S. Route 41 bridge. The south border of the proposed Wiggins Pass OFW narrows to a little less than one-third of a mile wide. The south border generally runs 50 feet north of Bluebill Avenue (State Road 846). But the south border loops to the north about one-third of a mile to carve out the northern tip of a canal leading to Vanderbilt Lagoon to the south. Presumably, the waters excluded by the loop are not estuarine or marine, or else the textual description of the proposed OFW would conflict with the depiction in Figure 1 in DEP's report to the Environmental Regulation Commission of the Proposed Wiggins Pass OFW designation. The Cocohatchee River is formed by sloughs east of the proposed Wiggins Pass OFW. The river's drainage is not especially large, about 16,000 acres, and there is little change in elevation. The river flows westerly about 3.5 miles to the lower estuarine waters at the U.S. Route 41 bridge. The river is considerably fresher upstream of the U.S. Route 41 bridge than it is downstream of the bridge. East of U.S. Route 41, the Cocohatchee River is relatively straight and clearly defined. West of U.S. Route 41, the river begins to meander, creating numerous embayments. The thick mangrove banks of the river and embayments west of U.S. Route 41 are largely undisturbed. About one mile west of U.S. Route 41, the river passes under the Vanderbilt Drive bridge to the north of a triangular- shaped island. The island consists at least partially of fill, although a DEP Intent to Issue an environmental resource permit notes: "The uplands had been constructed by filling and bulkheading the western portion of a deltic mangrove island." The largely artificial waterway running south of the island is known as Horse Creek. Both ends of the short Horse Creek intersect the Cocohatchee River at points adjacent to the triangular-shaped island. From the vicinity of the Vanderbilt Drive bridge to Wiggins Pass, the Cocohatchee River is generally known as the East Channel. (To avoid confusion, DEP may wish to consider clarifying the textual description of proposed subsection 38 by adding the following underlined language: "the Cocohatchee River downstream from 50 feet west of U.S. 41 1995 right-of-way to Wiggins Pass; . . .." About one-half mile west of Vanderbilt Drive, the East Channel is intersected first by the North Channel and then, a little farther downstream, the South Channel. The South Channel is a long, narrow waterway that was dredged in the early 1950s to connect the East Channel with Water Turkey Bay, which is about one-half mile south of the East Channel. Between the East Channel and Water Turkey Bay is the smaller West Bay. The proposed Wiggins Pass OFW includes any parts of the South Channel, West Bay, and Water Turkey Bay not already contained in an OFW, as discussed below. A narrow channel leads south from Water Turkey Bay to Vanderbilt Lagoon, but the Wiggins Pass OFW excludes this channel and lagoon. Vanderbilt Lagoon was dredged and later connected to Water Turkey Bay prior to the creation of the South Channel. Despite their connection, there is little exchange of water between Water Turkey Bay and Vanderbilt Lagoon. Nutrient- rich Vanderbilt Lagoon, which was dredged to relative deep depths, has reduced dissolved oxygen levels and is poorly flushed, typically taking 16 days to flush. Numerous long, narrow canals connect to Vanderbilt Lagoon, which is in poor condition from, among other things, considerable untreated stormwater runoff from extensive urbanization south of Bluebill Avenue in an area known as Naples Park. Rapid inputs of freshwater leads to stratification with impaired circulation due to the freshwater sitting over the saltwater in the sluggish lagoon. In contrast to Vanderbilt Lagoon, the water depths are much shallower in Water Turkey Bay, which hosts well-established seagrass beds. Outside of the channel, the bottom of Water Turkey Bay is about -4 feet NGVD (all bottom elevations refer to National Geodetic Vertical Datum, unless otherwise stated). The bottom elevation of the South Channel is about -6 to -8 feet. A small stream links the east shore of Water Turkey Bay with an embayment of the Cocohatchee River, just upstream of Vanderbilt Drive. Thus, the salinity levels of Water Turkey Bay are reduced by the relatively fresh water introduced from this part of the Cocohatchee River. The North Channel connects the East Channel with Wiggins Bay, which is about one quarter-mile to the north and is the second largest bay in the proposed OFW. The North Channel then leads to two smaller bays farther north, and finally to Little Hickory Bay, which is the largest bay included in the proposed OFW. Water depths in this area north of the East Channel are shallow, with bottoms ranging from -2 to -4 feet. Little Hickory Bay is a little over one mile north and south and abuts on the north the Estero Bay Aquatic Preserve, which is on the north border of the proposed Wiggins Pass OFW. The waters in the aquatic preserve, which was the first aquatic preserve created in Florida, were designated an OFW in 1979. Little Hickory Bay is fed by Estero Bay and the Imperial River, which is also an OFW. A portion of the waters of Little Hickory Bay drain into the Gulf of Mexico through Big Hickory Pass and New Pass to the north, and the remaining waters drain into the Gulf through Wiggins Pass. The numerous embayments and wetlands from Little Hickory Bay to the East Channel are undeveloped and contain productive seagrass, oyster beds, and mudflats. The only urbanization in the vicinity of the proposed OFW in addition to Naples Park is at the northeast corner of the proposed Wiggins Pass OFW, where Bonita Shores abuts the northeast corner of Little Hickory Bay. The proposed OFW excludes Bonita Shores. The portion of the proposed OFW from Wiggins Pass upstream along the East Channel features the mangroves typical of the area, as well as small mangrove islands and oyster bars. Seagrass is especially evident at the intersection of the East and South channels and in the shallows north of the East Channel between the North Channel and the Pelican Isle Marina to the east. Wiggins Pass is a little more than one-quarter mile west of the intersection of the East Channel with the South Channel. The pass is about one mile west of the Vanderbilt Drive bridge. Wiggins Pass is a natural, extremely dynamic inlet characterized by swift currents and constantly changing channel and sand bar configurations. The narrow beach peninsula extending north of Wiggins Pass runs the entire length of the proposed Wiggins Pass OFW. One mile of this peninsula immediately north of Wiggins Pass is occupied by the Barefoot Beach State Preserve. The waters within the State Preserve were designated an OFW in 1982. This OFW runs along the entire west shore of Wiggins Bay and the North Channel leading to Wiggins Bay. Immediately north of the Barefoot Beach State Preserve is Collier County's Barefoot Beach Park. The narrow beach peninsula extending one mile south of Wiggins Pass includes some uplands and maritime hammock. Running to the south border of the proposed OFW, the beach peninsula is occupied by the Delnor-Wiggins State Recreation Area, The waters in the state recreation area were designated an OFW in 1982. This OFW appears to include a portion of West Bay, the South Channel, and western areas of Water Turkey Bay. Habitats and Inhabitants of Proposed Wiggins Pass OFW The proposed Wiggins Pass OFW is a shallow mangrove estuary. Continuous bands of mangroves are located throughout the area of the proposed OFW with an especially large area of mangroves south of the East Channel and south and west of the Cocohatchee River. Red mangroves are prevalent along the bays with black mangroves farther inland. White mangroves are upland of the black mangroves. Mangroves are a key factor in this estuary's productivity. The mangroves drop leaves into the water, where microorganisms degrade the organic material into detritus. Small animals consume the detritus. Larger animals consume the small animals. The predominant soft mud bottom of the bays of the proposed Wiggins Pass OFW is typical of mangrove back bays and has high detrital value. The waters themselves exhibit high species diversity and generally support seagrass. The seagrass beds of the proposed Wiggins Pass OFW, though not nearly as extensive as the mangroves, nevertheless contribute to the health of the estuary by stabilizing sediments and reducing turbidity. The mangrove and seagrass habitats of the proposed OFW provide valuable nursery and breeding areas for fish and other marine life important to recreational and commercial fishermen. These habitats and their larval and juvenile inhabitants in turn attract other animals, including protected species such as the Atlantic bottlenose dolphin, loggerhead sea turtle, bald eagle, least tern, American oystercatcher, osprey, frigatebird, mangrove cuckoo, and mangrove fox squirrel. Perhaps the most notable inhabitant of the proposed Wiggins Pass OFW is the West Indian Manatee. Manatee historically ranged from northern Brazil through Mexico to Georgia and through the Caribbean. The U.S. population in Florida is the last viable population of this species in the world. Manatee are abundant in Collier County throughout the year. They generally prefer secluded tributaries, creeks, and shoreline embayments along inland waters. In Collier County, they frequent the Gulf nearshore, back bay systems, and residential canals. Manatee consume, among other things, mangrove leaves. Doubtlessly, manatee are more prevalent in south Collier County than around Wiggins Pass. But manatee commonly use Wiggins Pass travelling into and out of the back bay areas of the proposed Wiggins Pass OFW. A vast area of relatively rare habitat exists just offshore, immediately south of Wiggins Pass. Known as hardbottom, this habitat, which is at least partly included in the OFW of Delnor-Wiggins Pass State Recreation Area, resembles coral, except that it is flat, and serves as habitat for a wide variety of species at the bottom of the food chain. Hardbottom features soft coral, mollusks, worms, and sponges. These species serve as indicators of water quality inside the pass, as waters inside the pass are drawn out during low tides. Invertebrates, such as those occupying hardbottom, are the first to die off when the ecosystem is disrupted, such as by significant reductions in water quality. Water Quality of the Proposed Wiggins Pass OFW The waters of the proposed Wiggins Pass OFW are Class II waters, which means that they are approved for shellfish harvesting. The water quality of the proposed Wiggins Pass OFW is not extraordinary, but it is ample to maintain the productivity of this estuary. Total nitrogen and phosphorus levels and biological oxygen demand reflect the detrital contribution of the vast mangrove defining the estuary. However, the waters are not nutrified or eutrophied. The waters are not suffering algal blooms. The keystone species of the hardbottom just outside the pass have not been harmed by the waters coming from the back bays of the proposed OFW. The water quality of this shallow estuary is maintained by good flushing. Tidal and river flows flush the entire area of the proposed OFW. River flows also introduce freshwater infusions to the estuary. The 1994 Water Quality Assessment for the State of Florida, issued in November 1994, reports that the Cocohatchee River estuary scored 50 points on the trophic state index. Zero to 49 points is good, 50-59 points is fair, and 60-100 points is poor. The report notes an improving trend for the estuary for trophic state index and dissolved oxygen and no degrading trends. The data contained in the report are of limited usefulness for this case. The report is based on ten observations from 1989-1992. But only five observations were within the proposed OFW--and these were at the U.S. Route 41 bridge--and these five observations were all in 1989. The waters of the proposed OFW have been the site of coliform bacteria readings. Coliform bacteria levels are likely attributable to wastewater and agricultural runoff entering the Cocohatchee River upstream. These inputs may also be partly responsible for nutrients in the water. However, the favorable water-quality trends are due to recent actions, including improvements to a regional wastewater treatment plant, restrictions upon agricultural flows into the upper watershed of the river, and requirements of on-site retention of stormwater runoff for major developments. In any event, the waters of the proposed OFW meet most of the Class II water standards. Recreational Opportunities at Proposed Wiggins Pass OFW The park, preserve, and recreation areas north and south of Wiggins Pass forming the west border of the proposed OFW receive over one million visitors annually. These recreation areas provide a wide variety of outstanding recreational opportunities including swimming, hiking, canoeing, kayaking, nature watching, and other water- and beach-oriented activities. These activities extend into the area of the proposed Wiggins Pass OFW. Eleven marinas in the area of the proposed Wiggins Pass OFW underscore the importance of Wiggins Pass as a major recreational area in Collier County. The three marinas closest to Wiggins Pass are Wiggins Pass Marina (also known as Marco River Marina--Wiggins Pass Division), Pelican Isle Marina (also known as Conklin Point or Westinghouse Yacht Club at Conklin Point), and Island Marina. Wiggins Pass Marina and Pelican Isle Marina are on the north side of the East Channel about one-quarter mile west of the Vanderbilt Drive bridge. These two marinas provide 350 dry storage spaces and 220 boat slips. Wiggins Pass Marina is a full-service marina. Between these marinas is a popular County boat ramp, which provides access for trailered powerboats. Pelican Isle Marina, which is located on 15 acres of fill, is encircled by water, although a small culvert connect the marina to the mainland to the east. A 300-foot roadway connects Pelican Isle Marina with Vanderbilt Drive to the east, just north of the Vanderbilt Drive bridge. Wiggins Pass Marina and the boat ramp are outside the boundaries of the proposed Wiggins Pass OFW, although they abut the waters of the proposed OFW. Pelican Isle Marina is within the proposed Wiggins Pass OFW. The proposed OFW contains no exclusion for the "working area footprints" of these marinas and boat ramp. Island Marina Just upstream from Wiggins Pass Marina and Pelican Isle Marina, Island Marina is an 80-slip marina on the triangular- shaped island between the East Channel and Cocohatchee River on the north and Horse Creek on the south and west. It has been in operation since 1992. Less than 300 feet of river (seawall to seawall) separate Island Marina from Pelican Isle Marina to the north and west. The triangular-shaped island is divided in half by Vanderbilt Drive. Island Marina occupies the entire island west of Vanderbilt Drive. The Vanderbilt Drive bridge is the north bridge at the northeast corner of Island Marina and spans the Cocohatchee River. A shorter south bridge at the southeast corner of Island Marina crosses Horse Creek. The remainder of the island to the east of the bridge is undisturbed and covered by mangroves, except for a strip of right-of-way along Vanderbilt Drive. As does Pelican Isle Marina, Island Marina features a high-rise condominium with various other improvements, such as paved parking and docks completely lining its shoreline. Petitioner's waterward property line extends into the water along the seawall and encompasses part of 20 of Island Marina's boat slips. For the most part, though, the slips and deck extend over submerged land leased by the Board of Trustees of the Internal Improvement Trust Fund (Trustees) to Petitioner by Modified Submerged Land Lease executed June 15 and July 29, 1992. The term of the submerged land lease, which covers about one and one- quarter acres (52,736 square feet), is 25 years, commencing February 12, 1991. The submerged land lease allows Petitioner to operate a commercial docking facility without fueling facilities, with sewage pumpout facilities, and without liveaboards. Paragraph 29 of the submerged land lease requires Petitioner to install manatee-warning signs at the docks. Paragraph 30A of the submerged land lease allows the Trustees to change any conditions of the lease at anytime during the lease term if "deemed necessary" by the Trustees. Necessary reasons include conforming to adopted or revised statutes or rules and conforming to the requirements of Section 372.072. Paragraph 30E of the submerged land lease limits the leasing of boat slips so that no more than 23 of the 80 available slips are rented to owners of upland condominium units. Paragraph 30C orders Petitioner to advertise the slips as available to the general public by erecting permanent signs at the docking facility. Paragraph 30G of the submerged land lease incorporates by reference the provisions of an agreement between Petitioner and Collier County. Provisions of this agreement require Petitioner to submit to programs for monitoring water quality and protecting manatee and bald eagles. By environmental resource permit issued December 18, 1995, DEP authorized Petitioner to expand Island Marina by relocating 70 concrete pilings farther waterward and install ten new concrete pilings farther waterward in the Cocohatchee River. Many of the new pilings were to be placed at the waterward edge of the submerged land recently leased to Petitioner in the submerged land lease modification executed the prior summer. The environmental resource permit directs Petitioner to require that boats mooring for more than two consecutive days at Island Marina maintain bilge absorbent pads to absorb oil and grease, but not water, and replace the pads as needed. The permit requires that moored boats have properly tuned engines to minimize the release of oil and grease into the water. The permit requires Petitioner to monitor for dissolved copper twice annually. Lastly, the permit requires Petitioner to comply with Class II water-quality standards. One diagram attached to the environmental resource permit depicts "scattered oyster beds & mangrove zone" at Island Marina. Prepared by Breedlove, Dennis & Associates, Inc., this diagram discloses that a seawall runs almost the entire perimeter of Island Marina. A narrow zone of small mangroves up to three feet high has established itself along the riprap that fronts the seawall. Waterward of the mangroves, a wider band of scattered oyster beds has developed around the entire perimeter of Island Marina. The opposite shore of Horse Creek is populated by part of the vast mangrove forest occupying the area south of the East Channel. Waterward of the opposite shore are thick bands of scattered oyster beds along the shore, as much as 85 feet from wide at one point. The diagram also reveals that Horse Creek is about 180 feet wide at the start of the seawall near the south bridge and widens to 240 feet (seawall to mangrove shore) as the creek wraps around the south end of the marina. The creek widens to 260 feet as it turns to the north and maintains this width until it intersects with the East Channel. On November 29, 1995, DEP published an Intent to Issue the environmental resource permit that was later issued on December 18, 1995. Among other things, the Intent to Issue reports that DEP representatives conducted field appraisals of the site on August 29 and October 24, 1995, and, on one visit, observed two manatee swimming upstream just north of the "working area footprint" extending into the East Channel. The Intent to Issue states that depths in Horse Creek are shallow until the centerline of the waterway, where they are -5 to -10 feet mean low water. Island Marina Exhibit No. 8 depicts Island Marina, the waterward property line, the waterward extent of the submerged land lease area, and, farthest waterward, the "waterward extent of working area footprint." The "waterward extent of the working area footprint" is as much as 120 feet waterward of the waterward property line. Typically, the "waterward extent of the working area footprint" is only 45 feet waterward of the waterward line of the submerged land lease area. For the most part, the waterward line of the submerged land lease area extends just a few feet beyond the ends of the boatslips. The record does not disclose that Petitioner claims any interest in the "waterward extent of working area footprint" outside of the submerged land lease. The record does not adequately disclose the intended function of the "working area footprint" outside of the submerged land lease. Estuarine waters encircle the island on which Island Marina is located. Thus, the proposed OFW extends to the shoreline of the island, landward of the "working area footprint" and landward of the narrower submerged land lease. As used below, "working area footprint" includes the area of the submerged land lease. The seawall abutting the shoreline of Island Marina is rimmed by riprap and mangroves. Oysters are colonizing or recolonizing the Horse Creek area and likely will find the concrete pilings suitable habitat. Nothing precludes marine life, including manatee, from using Horse Creek, and nothing prevents such marine life from using the waters of the "working area footprint" and submerged land lease. The waters of Island Marina's "working area footprint" are inextricably linked to the estuary encompassed by the proposed Wiggins Pass OFW. These links are both environmental and recreational. The mangroves in Island Marina's "working area footprint" contribute detritus to the remaining waters of the proposed OFW. The mangroves outside the "working area footprint" contribute detritus to the waters of the "working area footprint." Oysters from outside the "working area footprint" have established themselves in the working area footprint, and these oysters may in turn colonize areas outside the "working area footprint." Water from the proposed OFW outside the "working area footprint" freely passes through the "working area footprint." The water of the "working area footprint" is well flushed by the continual river flow from the east and typically by two tides daily. The waters of Island Marina's "working area footprint" are exchanged one to two times daily; some water passes through the "working area footprint" is as little as 15 minutes. The recreational links between Island Marina's "working area footprint" and the remaining waters of the proposed OFW are obvious. Numerous provisions in the submerged land lease ensure that Island Marina, including its "working area footprint," will continue to be supply an attractive source of recreation for the public, not limited to persons owning Island Marina condominiums. The most evident form of recreation is boating, which can be pursued for its own sake or as a means to other forms of recreation, such as fishing, swimming, water skiing, and nature watching. To a lesser extent, other forms of recreation, such as nature watching and fishing, can also take place from the "working area footprint." Provisions of the submerged land lease also assure that Island Marina will not degrade the surrounding waters so as to impair their environmental or recreational value. DEP's OFW Exclusion Criteria and Their Inapplicability to Island Marina's "Working Area Footprint" DEP has excluded heavily polluted areas from other OFWs. These areas were contaminated by dangerous pollutants associated with manufacturing and refining activities. But in roughly 300 OFWs DEP has never excluded a marina's footprint. On the other hand, DEP has included in OFWs artificially created waterbodies and waterways, as long as the waters were in reasonably good condition. Island Marina's "working area footprint" is not comparable to the heavily polluted areas excluded from other OFWs. Even if entirely artificially constructed, the "working area footprint" is in reasonably good condition so as not to warrant exclusion on this basis. DEP drew the most logical boundaries for the proposed OFW. DEP has excluded urbanized areas to the northeast and south on the basis of intensity of adjacent land uses, which, with reduced salinity, accounts for the east boundary at the U.S. Route 41 bridge. The 50-foot exclusions at Bluebill Ave. and U.S. Route 41 may have been at the request of Collier County, but these exclusions are consistent with other decisions concerning the boundaries of the proposed OFW. DEP did not exclude any area around Vanderbilt Drive. Although DEP did not exclude any area around Bonita Beach Road at the north boundary, this boundary is abutted to the north by an aquatic preserve. The proposed OFW links existing OFWs and state and county recreation and natural areas with the back waters of the proposed OFW. Recreationally, the proposed OFW logically extends to the waters that Florida's citizens and visitors already use extensively through access provided by the beach parks and preserves and marinas. The exclusion of the waters of and leading to Vanderbilt Lagoon is also logical. Vanderbilt Lagoon is the site of considerable recreational boating. But poor water quality limits recreation to boating. Recreationally, the impaired waters of Vanderbilt Lagoon have been reduced to a medium of transportation, unlike the varied recreational and environmental waters of the proposed Wiggins Pass OFW. The crux of Petitioner's case is that DEP improperly included Island Marina's "working area footprint" in the proposed OFW. Petitioner asserts that the waters within the footprint have no exceptional ecological or recreational significance. In fact, they have important recreational significance because of their proximity to the boat slips and their relatively good water quality. More generally, though, the waters of the "working area footprint" are the waters of the proposed OFW. These waters freely interchange. Wildlife frequenting the waters can pass freely between the waters of the "working area footprint" and the waters of the remainder of the proposed OFW. DEP and the Trustees have carefully restricted Petitioner's marina operation to assure that it will not degrade the environment. For these reasons, Petitioner fails in its arguments that Island Marina is not part of the ecosystem encompassed by the proposed OFW and that DEP improperly failed to apply its exclusion criteria to sever Island Marina's "working area footprint" from the proposed OFW. In the alternative to its argument that Island Marina's "working area footprint" is not part of the ecosystem of the proposed Wiggins Pass OFW, Petitioner complains that DEP improperly defined an ecosystem without any legal or scientific criteria. Petitioner asserts essentially that any definition of "ecosystem" that includes Island Marina's "working area footprint" is overly inclusive. Island Marina is in the center of the Cocohatchee River, as it enters the East Channel. Oyster beds and mangrove have found the Horse Creek area, including the "working area footprint," suitable habitat and no different from the habitat of the remainder of the proposed OFW. Island Marina marks the east boundary of one of the most productive areas of the proposed OFW. Just west and north of Island Marina, seagrass beds occupy the shallows north of the East Channel. Island Marina is directly across from a vast area of mangroves to the south. Proposed subsection 38 describes waters, including the "working area footprint," that are linked physically and functionally. They perform important environmental functions in the development and maintenance of marine life, including estuarine life. To the extent the record lacks an explicit definition of "ecosystem," an implicit definition may be inferred from the evidence. In designating the proposed Wiggins Pass OFW and defending the designation in this proceeding, DEP has shown that an ecosystem functionally interrelates biology, hydrology, and physiography on a scale appropriate to the environmental and recreational issues identified by statute and rule. Functionally relating organisms to their environment--i.e., engaging in an exercise in ecology--DEP drew the boundaries of the proposed Wiggins Pass OFW to encompass this "ecosystem." Island Marina is also well positioned to make an important contribution to the recreational use of the area. The Vanderbilt Drive bridge, as well as the south bridge, are fixed bridges that limit vessel height. Seaward of low, fixed bridges and accessible by the relatively deep East Channel (as contrasted to the South and North channels), Wiggins Pass Marina, Pelican Isle Marine, and Island Marina are uniquely well situated to provide docking facilities for operators of larger boats. Situated in the center of an important area for various recreational activities, these marinas are a crucial element in ensuring public accessibility to these rich and varied recreational opportunities, as is partly reflected by the Trustees' insistence in the submerged land lease that Petitioner reserve and advertise a large number of slips for members of the public who are not owners of Island Marina condominiums. Although the imposition of OFW status on the "working area footprint" may impose some economic burden on Petitioner, the ensuing environmental, social, and economic benefits of the designation far outweigh the costs. No Improper Delegation of Factfinding and Decisionmaking or Shifting of Burden of Proof Petitioner argues that DEP improperly delegated the factfinding and decisionmaking to Intervenor The Conservancy, Inc., a private corporation (Conservancy). In a related argument, Petitioner argues that DEP relieved itself of the burden of proving the suitability of extending the proposed OFW to Island Marina's "working area footprint." On December 16, 1992, Conservancy filed a Petition for Outstanding Florida Water Designation for the Wiggins Pass-- Cocohatchee River Estuarine System. The petition requested that DEP initiate rulemaking to amend Rule 62- 302.700 to designate the Wiggins Pass OFW. DEP initiated rulemaking proceedings and conducted three factfinding workshops attended by 215 persons. In connection with these workshops, DEP received almost 400 cards or letters supporting the proposed designation. On October 27, 1995, DEP published a Notice of Intent to submit proposed Rule 62- 302.700(9)(i)38 to the Environmental Regulation Commission on November 30, 1995. Conservancy initiated the rulemaking proceedings, but this is not uncommon in the designation of OFWs. There is no evidence that DEP or the Environmental Regulation Commission delegated anything to Conservancy or any other private party. DEP representatives made numerous site visits. One DEP scientist studied the entire system on site visits in August 1993 and November 1995. DEP revised the area of the proposed OFW from what Conservancy sought in its petition. The rulemaking process involved considerable public participation. Eventually, DEP and the Environmental Regulation Commission formulated proposed subsection 38. The proposed rule subsection was the result of careful analysis of existing data and data collected concurrent with promulgation of this proposed rule, as well as with the issuance of environmental resource permits to Petitioner for Island Marina and to other parties in the immediate area. Conservancy representatives played little, if any, part in this process, besides initiating it by filing the petition and exercising their right to participate in the rulemaking process. Conservancy representatives did not make the decision to designate the area as a proposed OFW. Nor did DEP relieve itself of any burdens in extending the proposed designation to Island Marina's "working area footprint." Petitioner complains that DEP did not perform special studies of the "working area footprint." Actually, DEP had a reasonably detailed understanding of the characteristics of this area from the environmental permitting that had taken place for Island Marina and, to a lesser extent, Pelican Isle Marina. On these facts, DEP was not required to conduct more detailed studies of the "working area footprint," especially when the evidence supplied by Petitioner does not suggest that DEP improperly included these waters in the proposed OFW.
The Issue Whether the subject lease should be awarded and, if so, whether the award should be to Petitioner or to Intervenor.
Findings Of Fact State Road 5 (US Highway 1) runs through Windley Key, Monroe County, Florida. Florida Department of Transportation (FDOT) District 6, headquartered in Miami, has direct operational responsibility for this highway and its adjacent right-of-way. Holiday Isle Resort and Marina, Inc. (Holiday Isle) is a corporation that owns and operates various facilities located adjacent to one another on Windley Key which offer lodging, food, beverages, entertainment, and recreation. These facilities, located easterly of State Road 5, attract a large number of patrons in automobiles. Because of a lack of parking on the Holiday Isle properties, many people have, over the past few years, parked their vehicles across State Road 5 from the Holiday Isle properties on the right-of-way that was unimproved when the request for proposal was issued. Over this time, FDOT and Holiday Isle had an informal agreement giving Holiday Isle the use of this area for overflow parking. Upwards of 400 automobiles have been parked on this right-of-way area across from the Holiday Isles properties. FDOT knew that Holiday Isle patrons and others were parking on this right-of-way area and was aware that this parking arrangement had created a tremendous traffic hazard. Numerous accidents, including fatalities, have occurred over the years involving motor vehicles pulling on and off State Road 5 and pedestrians crossing the road to and from the Holiday Isle properties. In an effort to reduce the hazardous conditions in this area, FDOT decided to lease the right-of-way for motor vehicle parking pursuant to the authority given FDOT by Section 337.25, Florida Statutes. This was the first time that District 6 of FDOT had attempted to procure a lease of this type. On September 23, 1989, FDOT placed an advertisement in appropriate Monroe County newspapers under the heading "Call for Bids". The advertisement advised that sealed bids for the lease of certain described lands would be received by FDOT at 11:00 a.m. on the 29th day of December, 1989. The lands described by the advertisement was for a substantially larger tract of land than the final tract of land described in the Request for Proposal. The advertisement gave notice that "No bid will be considered unless it is submitted on the official Proposal Form provided by the Department of Transportation". The name and address of the person from whom bidders could obtain the forms and information about the project was provided. The advertisement also contained the statement: "The Department reserves the right to reject any or all bids and to waive technical errors as may be determined best for the interest of the State." This was the only advertisement that was published for this project. Petitioner Red & White Investments, Inc. (Red & White) is a corporation organized to make investments. Paul Brumm was one of the shareholders of Red & White and was authorized to act on behalf of the corporation in pursuing the lease that is the subject of these consolidated cases. Joseph Roth was an officer of Intervenor Holiday Isle and was authorized to act on behalf of the corporation in pursuing the lease that is the subject of these consolidated cases Red & White and Holiday Isle were the only two entities to contact FDOT in response to the advertisement. FDOT determined that the legal description it had. used in its published advertisement was incorrect, advised them of the error, and delayed the issuance of its RFP until after its corrected that erroneous legal description. In March, 1990, FDOT corrected the legal description and issued its RFP to Red & White and to Holiday Isle. The RFP contained a metes and bounds description and referred to the land to be leased as being "Parcel 6003.B" and as containing 3.596 acres, more or less. The RFP was a package of three separate documents. The first document was a standard "State of Florida Request for Proposal Contractual Services Acknowledgment Form" (RFP Form) with certain deletions and additions. The second document consists of four pages entitled "Information for Prospective Bidders" (Information Document) and contains information about the subject project and constitutes special conditions applicable to the procurement. The third page is a three-page document headed "Lease Agreement" (Lease Form). Attached to the Lease Form are two exhibits: Exhibit A being a revised legal description of the parcel to be leased and Exhibit B being the page to which the bidder was to attach its conceptual site plan. The RFP Form contained general and special conditions. Among the general conditions was the following: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions unless their proposal has been evaluated as being responsive. There was no restriction stated by the RFP as to the number of proposals a proposer could submit. The RFP Form contained the following statement: SEALED PROPOSALS: All proposal sheets and this original acknowledgment form must be executed and submitted in a sealed envelope. (DO NOT INCLUDE MORE THAN ONE PROPOSAL PER ENVELOPE.) The face of the envelope shall contain, in addition to the above address, the date and time of the proposal opening and the proposal number. ... In the special requirements section of the RFP Form, proposers were required to state the amount being offered to pay for the lease on an annual and on a monthly basis, and were told to submit a "Conceptual Site Plan" as part of the proposal. Proposers were also advised that the land to be leased was vacant and was to be leased "as is", without any representations as to its suitability for any particular use or its qualification for any permits or licenses. All development had to be in conformity with all local, state, and federal laws. The Information Document constituted special conditions applicable to this procurement. Among the special conditions found in the Information Document are the following: BID FORMS: The Department of Transportation will not consider a bid to lease subject land unless it is submitted on the official "Request For Proposal - Contractual Services" form provided by the Department of Transportation. * * * MINIMUM ACCEPTABLE BID: The minimum acceptable bid shall be $58,825.00 per annum. (This requirement was subsequently changed as discussed below.) TERMS: The bid proposal shall specify the amount of monthly rent the bidder is proposing to pay. Payment in full of that amount shall be due and payable at the Lessor's office mentioned above on the first day of May, 1990, and on the first day of each succeeding month for the term of the lease. * * * SUITABILITY: Subject parcel is leased "as is" and the Lessor makes no representation regarding the suitability of the subject land for any use. It is specifically understood that the Lessor makes no representation, guarantee or warranty that the subject land will qualify for any permits or licenses as may be required by any governmental agency having jurisdiction. * * * CONCEPTUAL SITE PLAN: Each bidder must submit with his bid documents a conceptual site plan indicating how they will use and develop the site. Such plan must show all proposed modifications, including all entrances and exits, lighting fixtures, pavement, drainage structures, fences and all other proposed improvements to State Road No. 5, including but not limited to traffic signals. The plan must state that overnight camping will be prohibited by Lessee. No bid will be considered if a conceptual site plan is not included as part of the proposal. The conceptual site plan document(s) will be referred to as Exhibit "B" of the bid proposal. The conceptual site plan submitted by the successful bidder will be incorporated into the final lease as Exhibit "B". CONSTRUCTION OF IMPROVEMENTS: It is specifically understood and agreed that the successful bidder will commence construction of improvements on the leased area, in conformity with the approved Conceptual Site Plan, on or before August 1, 1990. * * * PRE-BID CONFERENCE: All prospective bidders are invited to attend a meeting to be held at the Lessor's office listed above at 11:00 A.M. on Friday, April 6, 1990. The purpose of this meeting is to provide prospective bidders an opportunity to present any questions they may have concerning this bid. Representatives of the Lessor will be present to answer such questions. FORMS: Proposal, contract, and performance bond forms may be secured from this office. Corporate seals are required on bid proposals where applicable. BID AMOUNT: All bids received will be evaluated on the basis of the rental to be paid, and (sic) the merits of the conceptual site plan, and the impact on State Road 5. The RFP required only two specific pieces of information to be generated by the proposer - the statement of rents and the conceptual plan. These were the only portions of the responses evaluated for purposes of awarding the lease. The RFP does not explain the procurement other than to limit the use of the parcel to parking. Safety problems and the parking needs for the Holiday Isle properties are not specifically addressed by the RFP. However, both Mr. Brumm and Mr. Roth were familiar with the long standing problems that existed in the subject area and knew the purposes of the RFP. The pre-bid conference was held as scheduled on April 6, 1990, with only Red & White and Holiday Isle attending as interested bidders. One of the purposes of the pre-bid conference was to permit bidders to ask questions and seek clarification. Following discussions with FDOT officials, it was determined that the legal description included in the RFP package as Exhibit A to the Lease Form was erroneous and that not all of the proposed site was upland or usable as parking. This resulted in a letter from FDOT, dated April 8, 1990, changing the term related to the price by stating that "[u]sable land value for leasing purposes has been determined to be Thirty-Five Cents ($0.35) per square foot per year", and that "[a nominal value for unusable land has been set at One Tenth of One Cent ($0.001) per square foot per year." The legal description of the area to be leased was also changed to encompass 5.190 acres, more or less, rather than the 3.596 acres, more or less, set out in the original proposal package. The revised description included lands closer to the pavement edge of State Road 5 than did Exhibit A to the Lease Form. A portion of the designated area lies within environmentally protected wetlands, contains protected species of vegetation, or is otherwise not suitable for use as a parking lot. FDOT never attempted to calculate how much of the subject property was "usable" or "unusable" and it never instructed the potential bidders as how such calculation should be made. By its letter of April 8, 1990, FDOT effectively removed the requirement from the RFP that the minimum bid for the lease be $58,825.00. FDOT left it to each proposer to determine the amount of usable land and to apply a minimum rate of $0.35 per square foot for usable land and a minimum rate of $0.001 per square foot for unusable land. Red & White timely submitted its proposal, which consisted of a proposal to pay $42,000 per year in rent, a conceptual site plan, a cover letter, a cashier's check in the amount of $4,200 and a copy of a letter, dated April 11, 1990, from Andrew M. Tobin, counsel for Holiday Isle to Mr. and Mrs. Paul Brumm. Red & White's bid amount was based on its determination that there were 113,150 square feet of usable space, and that the balance of the area was unusable. In comparison, Mr. Cochrane estimated that the value of the lease, using the methodology employed by Red & White, was $40,000. This estimate was derived by Mr. Cochrane and was not an appraised value. There was no evidence that FDOT had performed a formal appraisal of this property. Holiday Isle timely submitted two proposals in two separately sealed envelopes marked, respectively, "No. 1" and "No. 2". On April 20, 1990, representatives of both Red & White and Holiday Isle attended at FDOT offices in Tallahassee the opening of the proposals submitted in response to the RFP. At this meeting to open the proposals, Mr. Cochrane, the FDOT employee responsible for the procurement of this project was handed two sealed envelopes on behalf of Holiday Isle. These envelopes were marked "No. 1" and "No. 2", respectively. Mr. Cochrane told Mr. Tobin and Joseph Roth, Holiday Isle's representatives, that he would only open one proposal from Holiday Isle. Holiday Isle's representatives, when asked by Mr. Cochrane which of the two envelopes Holiday Isle wanted him to open, selected the envelope marked "No. 2." FDOT then opened envelope No. 2. The other envelope submitted by Holiday Isle, envelope No. 1, was not opened for the purpose of evaluating the proposal. (At the formal hearing, Holiday Isle requested and received permission to have the previously unopened envelope opened for the purpose of retrieving the cashier's check submitted with the proposal.) When the proposals were submitted, Monroe County was in the process of conducting a "focal point plan" study, required by the Monroe County Comprehensive Plan, for a portion of Windley Key designated as the "Holiday Isle Area of Critical County Concern." The area encompassed the Holiday Isle properties as well as the subject right of way. The focal point planning was to address: Design and functional character of U.S. 1 within one-half mile of the area of critical county concern; The appropriate location, placement, and functionality of adequate off-street parking for patrons to access the Holiday Isle Resort to avoid stacking of vehicles on U.S. 1; and c. An ingress and egress plan for U.S. 1 that limited access to side roads that have adequate turning, acceleration and deceleration lanes. Because of the pending focal point. plan activity and objections expressed by the Florida Department of Community Affairs, FDOT, on May 8, 1990, decided to reject both proposals. In doing so, FDOT represented that it would begin a new solicitation process if the focal point plan approved by the County and by the Department of Community Affairs revealed that leasing the subject right-of-way would be appropriate. Holiday Isle initiated formal administrative proceedings to protest the Department's decision to reject all bids. As the result of negotiations involving Holiday Isle, FDOT and the Department of Community Affairs, Holiday Isle agreed to take over the focal point plan efforts. Holiday Isle also agreed that the conceptual plan it submitted to FDOT as part of its proposal could be used as part of the focal point plan. Thereafter, the conceptual plan that had been submitted by Holiday Isle with its proposal No. 2 was incorporated as part of the focal plan. FDOT agreed to recommence the procurement process. The formal bid protest was dismissed and FDOT notified Red & White and Holiday Isle on June 14, 1990, that it would make its decision as to the award of the lease on June 19, 1990. FDOT appointed a committee consisting of three of its employees to evaluate the merits of the conceptual site plan submitted by Red & White and the Holiday Isle proposal No. 2. Mr. Cochrane was responsible for doing the economic evaluation of the proposed rents. The evaluation committee that reviewed the conceptual site plans was unaware that the Holiday Isle proposal contained a modified lease agreement but Mr. Cochrane was aware that the lease had been modified. The Holiday Isle proposal that had been contained in envelope No. 2 was recommended on June 19, 1990, by FDOT to receive the lease. This proposal consisted of a proposal to pay a conditional sum of $60,000, plus 10% of gross revenues per year, a certificate of insurance, a conceptual site plan, a "Holiday Isle Traffic and Parking Study," a lease, a cover letter, and a cashier's check in the amount of $20,000. The proposal did not state how gross revenues would be determined. Mr. Cochrane had not gotten a legal opinion as to the import of the changes made to the lease by Holiday Isle prior to the award being announced. He evaluated the proposed rents upon the annual rental shown by each proposal. Mr. Cochrane did not consider that the amount of Holiday Isle's proposed rents could be affected by a modification Holiday Isle made to the Lease Form, and he did not know how much money 10% of gross revenue would entail. In evaluating the merits of the respective conceptual plans, the evaluation committee considered that Holiday Isle would run a shuttle service to include the leased area, but that shuttle service was not included in the Holiday Isle proposal. On June 21, 1990, Red & White filed a timely protest of FDOT's intended selection of the Holiday Isle proposal. Holiday Isle did not timely protest FDOT's decision to open only one of its proposals. The lease proposal submitted by Holiday Isle as part of its response to the RFP contained material revisions to the Lease Form contained in the RFP package. Mr. Cochrane, the FDOT employee responsible for procuring the subject lease and for communicating with potential proposers, was of the opinion that the terms of the Lease Form could not be varied. Mr. Cochrane recommended to a representative of Red & White that no changes should be made to the lease form and that a proposer would run the risk of being disqualified if the terms of the lease were revised. Counsel for Holiday Isle was advised by Barbara Hobbs, FDOT counsel, not to revise the lease because FDOT counsel did not have time to review a revised lease. The RFP package does not specifically address whether a proposer may submit a modified lease as part of its proposal. It is clear, however, that Red & White relied on the statement and recommendation of Mr. Cochrane in determining not to make revisions to the lease, while Holiday Isle submitted a lease with revisions that are to its advantage. The revisions made to the lease by Holiday Isle were not minor irregularities. The changes to the Lease Form are in paragraphs 1, 3, 5, and 6 and deal, respectively with the term of the lease, the time of commencement of improvements, the payment of consideration and the adjustment of the amount of consideration depending on a future determination of usable versus unusable area, and termination. In each instance, the terms of the Lease Form was revised by counsel for Holiday Isle. Paragraphs 1, 3, 5, and 6 of the Lease Form are as follows: 1. Lessor does hereby lease unto Lessee the lands described in Exhibit "A attached hereto and made a part hereof, for a period of five (5) years beginning with the date of this agreement. Renewal of this Agreement from year to year shall be automatic until such time as terminated. 3. The Lessee hereby agrees that he will commence improvement of the leased area in conformity with the approved Conceptual Site Plan on or before August 1, 1990. Lessee shall pay the rent to Lessor in advance on the first day of each month, beginning May 1, 1990. When this Agreement is terminated, the unearned portion of any rent payment shall be refunded to Lessee. This agreement may be terminated by either party upon thirty (30) days written notice to the `other party. Paragraphs 1, 3, 5, and 6 of the revised lease submitted by Holiday Isle are as follows: 1. Lessor does hereby lease unto Lessee the lands described in Exhibit "A," attached hereto and made a part hereof for a period of five (5) years beginning with the date of this agreement. The term of this Agreement shall be automatically renewed and extended for an additional five (5) year Thereafter, this agreement shall be renewed from year to year unless otherwise provided by law or terminated as provided herein. * * * 3. The Lessee hereby agrees that it will commence improvement of the leased area in conformity with the approved Conceptual Site Plan on or before August 1, 1990. Because the parties anticipate certain delays for permitting, the parties agree that the commencement date shall be extended provided that Lessee is exercising good faith and due diligence to obtain permits as required by paragraph 13 of this lease. In the event that Lessee fails to exercise good faith and due diligence to secure the permits, Lessor, at its option, may declare Lessee in default of this agreement. * * * 5(a). Lessee shall pay to Lessor, as fixed annual rent, the sum of $59,941.90 for 3.860 acres +/- [more or less] of property designated "usable for parking" and $58.10 for 1.330 acres +/- [more or less] of property designated "unusable for parking" for a total annual rent of $60,000. Annual rent shall be payable to Lessor in equal monthly payments in advance on the first day of each month, beginning May 1, 1990. When this agreement is terminated, the unearned portion of any rent payment shall be refunded to Lessee. * * * 5(b). In addition to minimum fixed annual rent, Lessee shall pay Lessor a sum equal to 10% of the gross revenues from Lessee's parking lot operation, hereinafter "percentage rent." Payment of the percentage rent shall be paid on or before the twentieth day of each month for the preceding month's revenue. Lessee shall keep separate and accurate records of the gross revenues and it will give Lessor the right at any and all reasonable times to inspect such records. Beginning on the first anniversary date of this Lease, and on the anniversary date each year thereafter during the term of this Lease and all extensions and renewals, percentage rent shall be increased 1% each year until a maximum of 20% is reached. * * * 5(c). The parties acknowledge that the designation between "usable" and "unusable" property may be subject to correction based on actual field conditions, biological reports, or Lessee's inability to obtain required permits far part of the property. Either party shall have the right to notify the other of any incorrect designation (between usable and unusable) and to request a correct designation. A detailed and accurate survey showing the basis for the request for correction shall accompany any notification. If property has been incorrectly designated, the parties agree to adjust the annual rent to reflect the corrected designation of property based on $.35 per square foot for "usable" property and $.001 per square foot for "unusable" 6. In the event Lessor is required to utilize all or part of the lands described in Exhibit "A" for construction or additional lanes or for highway expansion, Lessor may terminate that portion required upon thirty (30) days written notice. If less than all of the property is terminated, the rental fee for the remaining property will be recalculated on a pro rata basis. The modifications to the lease by Holiday Isle were not contemplated by FDOT and gave Holiday Isle a competitive advantage not enjoyed by Red & White. On June 28, 1990, FDOT issued a special permit to Holiday Isle to improve the subject right-of-way area to make the right-of-way area safer until the bid dispute could be resolved. Under the auspices of that permit, Holiday Isle has constructed a chain-link fence to control ingress and egress to and from the parking area and has made other improvements to the right-of-way area. The chain-link fence has different gates far vehicles and pedestrians to pass through. Holiday Isle has placed fill material throughout the area. The Florida Department of Environmental Regulation has determined that the fill material is unauthorized. Holiday Isle has also placed railroad ties to serve as parking abutments and has installed lights. The parking abutments and lighting are not covered under the subject permit. The permit enables Holiday Isle to control and use the area for the parking needs of the Holiday Isle properties without having to pay rent for the right-of way area. The fence is a permanent improvement that will not necessarily be removed when the permit is terminated by FDOT. The primary purpose of this project was to make automobile traffic, parking, and pedestrian traffic safer. The RFP stated that proposals would be based on rent, the merits of the conceptual site plan, and the impact to State Road 5. The merits of the conceptual plans were evaluated based on internal circulation of traffic in the parking area, the planned ingress and egress to the parking area, planned pedestrian traffic, and improvements to State Road 5. The conceptual site plan submitted by Red & White was not prepared by professional engineers and was deficient in several material areas. Red & White's plan shaded the area to be reserved for parking, but it provided no information as to how traffic would circulate within the designated area. Red & White failed to provide information as to how State Road 5 would be impacted and failed to show what improvements, such as deceleration lanes or turn lanes, would have to be made to State Road 5. Further, Red & White's plan failed to make adequate provision for pedestrian traffic. Red & White's plan proposed two driveways, one into the parking area and one out of the parking area. The proposed exit driveway was unsafe because it was designated as a right turn only and was located too close to Whale Harbor bridge. Red & White conceptual plan provided for uses that were not contemplated by the RFP, such as an area reserved for recycling and the provision of parking areas for not-for profit groups. The conceptual plans were evaluated based on the following criteria: "access management", "internal circulation", and "traffic control litigation" "Access management" considered the location of driveways and the ease of ingress to and egress from the parking area. "Internal circulation" involves the actual development and use of the site, including parking layout and traffic flow within the designated parking area. "Traffic control mitigation" addresses safety considerations for and handling of cars and pedestrians. Although these criteria were not specified by the RFP, a conceptual site plan meeting minimum transportation engineering standards would have addressed those criteria in detail. The RFP did not set any minimum standard which would make a proposal "non-responsive" and ineligible for evaluation, and FDOT did not disqualify Red & White's conceptual plan. FDOT contemplated that minor changes could be made to the conceptual plan with its approval after the award of the lease. On June 19, 1990, FDOT announced its intention to award the project to Holiday Isle. On July 31, 1990, after the formal hearing had been convened in Case No. 90-4326BID, FDOT delivered to the parties a notice that it had decided to reject all bids. This change of position was based, in part, on the determination by FDOT that there had been confusion throughout the bid process and that the overall process was not absolutely fair.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in Case No. 90-4326BID that rejects the proposal submitted by Intervenor, Holiday Isle, and which further rejects the proposal submitted by Petitioner, Red & White. IT IS FURTHER RECOMMENDED that a Final Order be entered in Case No. 90- 4326BID that dismisses the bid protest filed by Red & White. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of November, 1990. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-4326BID AND IN CASE NO. 90-5103BID The following rulings are made on the proposed findings of fact submitted on behalf of Red & White Investments, Inc. The proposed findings of fact in paragraphs 1-5 and 42-47 are rejected as being preliminary matters that are unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 6-17, 19-32, 34-36, 38-41, 48-52, 56-57, 62, 64-67, 74-77, 80, 86, 91, 93-95, 101-108, 111, 119-121, 123, 125-126, 130, 134, 144-145, 155, 157, 163, 165, and 174-177 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 18, 37, 81-82, 96-100, 110, 124, 127-129, 132-133, 135-136, 143, 153, 158-162, 166, and 173 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 54-55, 60, 68-72, 87-88, 90, 92, 102, 115-118, 122, 137-142, 146-152, 154, 156, 167-172, and 179-182 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 33, 79, and 178 are accepted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 53, 61, 73, and 83-85 are rejected as being, in part, subordinate to the findings made and as being, in part, unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 58-59 and 131 are accepted in part and are rejected in part as being legal conclusions. The proposed findings of fact in paragraphs 89, 109, 164, and 183-184 are rejected as being argument or as being contrary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of Florida Department of Transportation: The proposed findings of fact in paragraphs 1-9, 9, 12, and 14-15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 10 are rejected as being preliminary matters that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 16 and 17 are accepted in part and are rejected as being contrary to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of Holiday Isle Resort & Marina, Inc. The proposed findings of fact in paragraph 1 are rejected as being legal conclusions. The proposed findings of fact in paragraph 2-3, 6- 9, and 11 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4 and 5 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 10 and 12-13 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 14 and 15 are rejected as being recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraphs 16 and 17 are adopted in part by the Recommended Order and are rejected in part as being contrary to the conclusions reached. The proposed findings of fact in paragraphs 18-19 and 22 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 20 and 21 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James S. Mattson, Esquire MATTSON, TOBIN & VETRICK Post Office Box 586 Key Largo, Florida 33307 Michael J. Cherniga, Esquire ROBERTS BAGGETT, LAFACE & RICHARD 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32301 Susan P. Stephens, Esquire Senior Litigation Attorney Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner Robert Scanlan, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James W. Anderson, Esquire Lewis & McKenna, P.A. Post Office Box 10475 Tallahassee, Florida 32302 Lauchlin T. Waldoch, Esquire Messer, Vickers, Caparello, French, Madsen & Lewis, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Barbara J. Staros, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s request for dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Red Streak Scooters, LLC and Austin Global Enterprises, LLC d/b/a New Scooters 4 Less to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 118 Northwest 14" Avenue, Suite D, Gainesville (Alachua County), Florida 32601. DONE AND ORDERED this 4, of July, 2009, in Tallahassee, Leon County, Florida. LR Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Divisign Motor Vehicles this é —! day of July, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Collin Austin Austin Global Enterprises, LLC 118 Northwest 14" Avenue, Suite D Gainesville, Florida 32601 Beverly Fox Red Streak Scooters, LLC 427 Doughty Boulevard Inwood, New York 11096 Shawn Glasser Swamp Cycles, LLC 633 Northwest 13" Street Gainesville, Florida 32601 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Barbara J. Staros Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS RED STREAK SCOOTERS, LLC and AUSTIN GLOBAL ENTERPRISES, LLC, d/b/a NEW SCOOTERS 4 LESS , Petitioner, Case Number: 09-2971 ve SWAMP CYCLES, LLC Respondent. wwe VOLUN DISM COMES NOW, Petitioner, Austin Global Enterprises, LLC is stating a notice of voluntary dismissal. Since Swamp Cycles, LLC, already has the ZHNG line make established on their license, Austin Global Enterprises, LLC d/b/a New Scooters 4 Less no longer wishes to continue with the hearing and pursue establishing the ZHNG line make at its location. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing was served by US Mail to Robert S. Cohen, Director and Chief Judge, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060; Shawn Glasser, as agent far Respondent Swamp Cycles, LLC, 633 Northwest 13" Street, Gainesville, FL 32601 on June 18, 2009. AUSTIN GLOBAL ENTERPRISES, LLC in Austirt; ging Member Representative for Petitioner 118 NW 14" Avenue, Suite D Gainesville, FL 32601 Telephone: 352-336-1271
