The Issue Whether Petitioners are "affected persons" entitled to pursue the instant challenge to the City of Miami Beach's Year 2000 Comprehensive Plan pursuant to Section 163.31B4(9), Florida Statutes? If so, whether the City of Miami Beach's Year 2000 Comprehensive Plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged by Petitioners?
Findings Of Fact Based upon the record evidence and the stipulations of the parties, the following Findings of Fact are made: City of Miami Beach: An Overview The City of Miami Beach is an incorporated municipality located within the jurisdictional boundaries of Dade County, Florida. It is governed by a seven member City Commission. The City consists of a main island and a number of smaller natural and man-made islands that lie to the east of the Dade County mainland. They are separated from the mainland by Biscayne Bay. To their east is the Atlantic Ocean. The City is now, and has been for some time, virtually fully developed. Less than 2% of the land in the City is vacant. Those parcels that are vacant are generally small in size and they are scattered throughout the City. The City is situated in the most intensely developed area in Dade County. Approximately 100,000 permanent residents live on the City's seven square miles of land area. In addition, the City has a sizable seasonal population Tourism is the backbone of the City's economy. Golf is among the activities visitors to the City are able to enjoy. There are two public 18-hole golf courses and one private 18-hole golf course in the City. The City also has a public 9-hole golf course, hereinafter referred to as the Par 3 Golf Course. Par 3 Golf Course and Surrounding Area The Par 3 Golf Course is owned by the City and leased to the American Golf Corporation, which operates the course. The course consists of nine relatively short holes. The longest of these holes is 180 yards. The shortest is 100 yards. The remaining holes average 150 yards in The course has been completely renovated and is currently in excellent condition. Since the renovation work, the number of players has increased significantly. Nonetheless, the course is still under-utilized. The land upon which the golf course is built is not environmentally sensitive. There are, however, a number of large, mature trees on the property. The Par 3 Golf Course is located on a 25 acre tract of land in the south central part of the City. It is bounded by 28th Street on the north, Dade Boulevard and Collins Canal on the south, Pine Tree Drive on the east, and Prairie Avenue on the west. All of these roadways are classified as "urban" by the Florida Department of Transportation Pine Tree Drive is one of the major north-south thoroughfares in the City. It is part of the Dade County Road System and has been assigned a Level of Service of "D" by the County. That portion of the roadway which borders the golf course has four lanes of through traffic, plus two parking lanes, and is divided by a median strip. The area surrounding the golf course is entirely developed. The development is primarily, but not exclusively, residential in nature. Residential structures are particularly predominant to the north and to the west of the golf course. Among the nonresidential structures found in the immediate vicinity of the golf course are: the Youth Center to the north; the Hebrew Academy's elementary school building, Miami Beach High School, and a City fire station, maintenance yard and fuel facility to the south; and the Fana Holtz Building, a five story building, with a basement parking garage, which currently houses the Hebrew Academy's junior and senior high school program, to the east on the other side of Pine Tree Drive. Parking is inadequate in the area of the golf course. The City is currently investigating ways to alleviate the parking problems in the area. Option to Exchange Property On June 7, 1989, at a regularly scheduled meeting, 1/ the City Commission voted to give the Hebrew Academy, a private educational institution, an option to purchase from the City a 3.87 acre portion of the Par 3 Golf Course located immediately adjacent to and north of the Hebrew Academy's elementary school building, in exchange for the Fana Holtz Building and the land on which it is situated. The Hebrew Academy has plans to construct a new junior and senior high school building, which will be able accommodate more students than the existing facility, on the land it will acquire if it exercises its option. The Hebrew Academy's acquisition of the land and its construction of a building on the site will disrupt the operations of the golf course. In addition, at least some of the large, mature trees that presently stand on the site will have to be removed. The course's third and fourth holes now occupy the land that the Hebrew Academy has been given the option to purchase. The course therefore will have to be redesigned to eliminate or relocate these holes if the Hebrew Academy purchases the land and constructs a building on it. Golfers playing the Par 3 Golf Course generally have the benefit of cool breezes that blow from the southeast. A multistory building situated on the land now occupied by the third and fourth holes will block some of these breezes that golfers playing other holes now enjoy. If the City acquires the Fana Holtz Building, it may move the offices of several City departments into the building. Such a move, coupled with an increase in the size of the Hebrew Academy's enrollment, would create a need for additional parking spaces in an area where parking is already a problem. Petitioners Falk and Miami Beach Homeowners Association Mildred Falk is now, and has been for the past 53 years, a resident of the City of Miami Beach. The Miami Beach Homeowners Association (Association) is a nonprofit organization of Miami Beach homeowners. Its primary purpose is to educate the public concerning matters of local interest in the City. For the past 15 years, Falk has been the President of the Association. Falk does not require formal permission from the Association's Board of Directors to address the City Commission on behalf of the Association. Falk has an understanding with the members of the Board that, if they take a position on an issue that will come before the City Commission, she will represent their collective views at the City Commission meeting in question without being formally requested to do so. Falk regularly appears before the City Commission in her capacity as a representative of the Association. As a general rule, though, she does not expressly state during her presentations that she is representing the Association. She considers it unnecessary to provide such an advisement because the persons she is addressing already know of her role as a spokesperson for the Association. On April 5, 1989, Falk Submitted a completed Lobbyist Registration Form to the City Clerk. On the completed form, Falk indicated that she had been employed by the Association to engage in lobbying activities with respect to a particular item, unrelated to the instant controversy, that was then before the City Commission. On February 5, 1990, Falk submitted another completed Lobbyist Registration Form to the City Clerk. On this completed form, she indicated that she had been employed to lobby with respect to "[a]ll issues that affect Miami Beach before the City Commission, Authorities or Boards." There was no indication on the form, however, as to what person or entity had employed her to engage in such lobbying activity. These are the only completed Lobbyist Registration Forms that Falk has filed with the City Clerk. Adoption of the City's Comprehensive Plan The City Commission considered the matter of the adoption of the City's Year 2000 Comprehensive Plan at public hearings held on September 7, 1989, and September 21, 1989. Notice of these adoption proceedings was published in the "Neighbors" section of the Miami Herald. 2/ The Miami Herald is a newspaper of general paid circulation in Dade County. The "Neighbors" section of the Miami Herald is circulated twice weekly along with other portions of the Herald in the following towns and municipalities: Miami Beach; Bal Harbour; Surfside; Bay Harbor Islands; Golden Beach; North Bay Village; Sunny Isles; and Indian Creek Village. The "Neighbors" section of the Miami Herald is: (a) published at least on a weekly basis; (b) printed in the language most commonly spoken in the area within which it circulates; (c) not a newspaper intended primarily for members of a particular professional or occupational group; (d) not a newspaper whose primary function is to carry legal notices; and (e) not given away primarily to distribute advertising. At the close of the public hearing held on September 21, 1989, the City Commission unanimously passed Ordinance No. 89-2664 adopting the City's Year 2000 Plan. On the future land use map (FLUM), adopted by the City Commission as part of the plan, that portion of the Par 3 Golf Course which the Hebrew Academy has the option to purchase is designated PFE (Public Facility- Educational). The property that the City will receive if the Hebrew Academy exercises its option has a land use designation of PF (Public Facility- Fire, Police, Other) on the FLUM. Policy l.2q. of the plan's future land use element contains the following discussion concerning the land use designation of these parcels of property: On June 7, 1989, the City Commission approved an option with the Hebrew Academy to exchanged [sic] private land for a portion of the Par 3 Golf Course. At the exercise of the option, the affected portion of the Par 3 Golf Course shall automatically be designated as Public Facilities [sic]- Educational. The property that the City will obtain will be designated as Public Facility- Other. 3/ During the public hearings that culminated in the City Commission's adoption of the City's Year 2000 Comprehensive Plan, Falk made oral presentations to the City Commission. She criticized the decision that had been made to allow the Hebrew Academy to purchase, at its option, the "affected portion of the Par 3 Golf Course" referenced in Policy 1.2q. of the plan's future land use element. It was her contention that, in accordance with a restrictive covenant entered into between the City, the Alton Beach Realty Company and the Miami Beach Improvement Company on June 17, 1930, the City was prohibited from allowing any portion of the land on which the golf course was built "to be used for any purpose whatsoever, other than for a golf course and/or golf links." At no time during her remarks did she contend that the plan ultimately adopted by the City Commission was contrary to any requirements dealing with the subject of urban sprawl. Nor did she argue that the notice of the adoption hearings that the City had provided was in any way deficient or inadequate. Falk did not identify herself at the adoption hearings as a representative of the Association. 4/ Nonetheless, in presenting her remarks to the City Commission, she was expressing not only her own views, but those of the Association as well. Prior to these hearings, she had informally polled the members of the Association's Board of Directors and they had each indicated to her that they opposed the "land swap" between the City and the Hebrew Academy. While they did not formally request that she appear before the City Commission to voice their concerns, it is not their standard practice to issue such requests. Neither Falk nor the Association submitted any written comments concerning the City's Year 2000 Comprehensive Plan during the City's review and adoption proceedings Urban Sprawl In November, 1989, the Department of Community Affairs published a Technical Memorandum (Volume IV, Number 4) which was designed "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements." The memorandum defines "urban sprawl" a- "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection." According to the memorandum, "urban sprawl typically manifests itself in one or more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development." These land use patterns are described in the memorandum as follows: Leap frog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development * * * Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. * * * Low-density, Single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas should be protected from urban development. The memorandum's description of "urban sprawl" is consistent with the definition most commonly employed by professional planners. In order to ascertain whether development meets the definition of "urban sprawl" used by the Department, it is necessary to determine whether the area involved is "rural" or on the "urban fringe." The memorandum suggests that such a determination may be based upon the area's population density. According to the memorandum, areas should be classified as follows based upon their population densities per square mile: Density Classification 0-200 Rural 201-500 Exurban 501-1000 Suburban 1001-2000 Medium [Urban] Density 2001-5000 High [Urban] Density 5000+ Highest Urban Density Among the techniques recommended in the memorandum to curb "urban sprawl" is "[p]romoting urban infill development and redevelopment." The construction of a multistory building on the Par 3 Golf Course and the conversion of the Fana Holtz Building to government use would not constitute any of the three types of development that the Department has indicated in its memorandum are characteristic of "urban sprawl." Rather, these activities would be in the nature of "infill development and redevelopment" inasmuch as they would occur, not in a "rural area" or on the "urban fringe," as those terms are used in the memorandum, 5/ but rather in the heart of an area of the "highest urban density."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order in the instant case declining to find the City of Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on the grounds urged by Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1990. STUART M. LERNER 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 13 day of August, 1990.
The Issue Are the corporate names, Dunes of Panama Rental Association, Inc. and Dunes of Panama Rental Management Association, Inc. deceptively similar to each other? If the names are deceptively similar to each other, may the Department of State require the later chartered corporation to amend its Articles of Incorporation and registration to reflect a new name?
Findings Of Fact At 7205 Thomas Drive, Panama City Beach, Florida, there is a cluster of condominiums known colloquially as the Dunes of Panama. The Dunes is a phased condominium development constructed and sold by A. W. Hirshberg, Inc. At the time of hearing there were three units of the development completed and a fourth under construction. Each unit, known respectively as Phase I, Phase II, Phase III and Phase IV, is contained in a freestanding building approximately 100 feet apart from the next unit. Construction of Phase 1 began in 1974. It was completed and sold by 1977. In that year the Dunes of Panama Phase I Association, Inc. was incorporated and chartered by the Department of State. As each succeeding unit was completed and sold a new owner's association was chartered until there are now Dunes of Panama Phase I Association, Inc., Dunes of Panama Phase II Association, Inc., and Dunes of Panama Phase III Association, Inc. Phase IV will be incorporated upon the completion of its building. To provide a service to the condominium owners in Phase I the developer established a rental office to assist in renting the condominiums to third parties. On July 1, 1977, this service was incorporated and received a corporate charter from the Department of State in the name of Dunes of Panama Rental Association, Inc. In September of 1977, when the developer Hirshberg conveyed all condominium assets of Phase I to the new owner's association, Dunes of Panama Phase 1 Association, Inc., he also transferred to the association all the assets of Dunes of Panama Rental Association, Inc. As each new phase of the development has been completed Rental has offered its rental management services to the new condominium owners in that phase. During December, 1980, a rival rental office was established by some condominium owners (primarily those in Phase III) to offer rental services to all condominium owners in each phase of the Dunes of Panama. This office was later, incorporated on February 4, 1980, as Dunes of Panama Rental Management Association, Inc. The services it offers its clients are exactly the same as those offered by Rental. All three existing units at the Dunes of Panama have the same street address, 7205 Thomas Drive. Each of the three buildings containing condominiums are designated by the letters "A," "B," and "C." The office of Rental is located in Building A. The office of Management is located in Building C. If the building letter is left off the address of mail to either Rental or Management, as frequently happens, there is considerable confusion among the postmen as to where the mail should be delivered. Frequently Management receives telephone calls for Rental and vice-versa. There is ample evidence that members of the public do not distinguish between the names of Rental and Management. Because the offices genrally cooperate with each other, the confusion from the similarity of their names is not always harmful but it does mean that, for instance, a person who made a rental agreement with Rental might send his deposit to Management, who may not be sure if that deposit is from one of its own customers or should be forwarded over to Rental. Both Rental and Management presently represent owners in Buildings A (Phase I), B (Phase II), and C (Phase III). The name Dunes of Panama Rental Management Association, Inc. is deceptively similar to the name Dunes of Panama Rental Association, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Secretary of State enter a final order requiring Intervenor- Respondent Dunes of Panama Rental Mangement Association, Inc. to amend its Articles of Incorporation and registration with the Department of State to reflect a name other than Dunes of Panama Rental Management Association, Inc. DONE and RECOMMENDED this 14th day of August, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1981.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint dated December 19, 1995, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of correctional officers. Section 943.12(3), Florida Statutes. Ms. Davis was certified by the Commission on May 18, 1993, and was issued Corrections Certificate Number 137735. She is currently certified as a corrections officer. Incident at the Royal Palm Beach K-Mart. In the Administrative Complaint, the Commission charged that On or about September 16, 1994, the Respondent, Dorothy B. Davis, did knowingly obtain, use, or did endeavor to obtain or to use a bread maker and a breadmixer of the value of $300.00 or more, the property of K-Mart, with the intent to either temporarily or permanently deprive the owner of a right to the property to her own use. On the morning of September 16, 1994, Timothy Meyers, a K-Mart employee of 16 years, was working as manager of the Royal Palm Beach K-Mart. Mr. Meyers observed Ms. Davis in the kitchen appliance aisle of the store with a shopping cart containing a Black and Decker bread maker and a Kitchen Aide mixer. The bread maker was priced at about $160.00 and the mixer at about $200.00. Moments later, Mr. Meyers observed another woman and a man push a shopping cart into the kitchen appliance aisle and, without looking at the various models available, put into their cart the same model Black and Decker bread maker and the same model Kitchen Aide mixer that Ms. Davis had in her cart. Mr. Meyers found it unusual that a shopper would choose these items without looking at the prices or at the other models available because the items were so expensive. Consequently, he followed the couple to the front of the store, where he observed them pay for the two items with cash. Mr. Meyers observed the couple leave the store by the front exit and put the bread maker and the mixer into a blue Ford Bronco. The man handed the woman what appeared to be the sales receipt for the bread maker and the mixer, and he then got into the Bronco and drove to the west side of the shopping center parking lot. Mr. Meyers observed the woman return to the store. She located Ms. Davis and handed her a piece of paper which Mr. Meyers believed was the receipt for the bread maker and the mixer. Mr. Meyers observed Ms. Davis push the cart containing the Black and Decker bread maker and the Kitchen Aide mixer toward the garden center, which is located on the east side of the store and has a separate exit and check-out register. He asked another store employee to follow Ms. Davis, and he went out the front exit to a location where he could observe the garden center exit but could neither see inside the garden center nor be seen by someone inside the store. When Mr. Meyers saw Ms. Davis push the cart containing the bread maker and the mixer through the garden center exit and onto the ramp leading into the parking lot, he stepped out and stopped her. He asked her if she had paid for the items in her cart at the front register, and she said yes and handed him a receipt for items of the same make and model as those she had in her cart. Mr. Meyers looked at the receipt, told Ms. Davis that she had not paid for the items, and told the cashier in the garden center to call the police. At this point, Ms. Davis left the cart on the sidewalk and walked away. Although Mr. Meyers told her to stop, she continued walking until she reached the Taco Bell restaurant located on the east side of the parking lot, about two hundred feet from the K-Mart store, where she waited until the police arrived. The K-Mart cash register detail tapes, which are the records of every transaction at the store, were checked and showed that, on the morning of September 16, 1994, only one Black and Decker bread maker and one Kitchen Aide mixer were sold. The evidence presented is clear and convincing that, on September 16, 1994, Ms. Davis took property belonging to K-Mart out of the store without paying for it. The property was valued at more than $300. These acts fall within the definition of grand theft found in section 812.014(1) and (2)(c)1, Florida Statutes, which constitutes a third degree felony pursuant to section 812.014(2)(c)1. Incidents involving Sandra Carey. In its Administrative Complaint, the Commission alleged that On or about October 18, 1994, Respondent, Dorothy B. Davis, did unlawfully commit a battery upon Sandra Carey, by actually touching or striking her or intentionally causing bodily harm to her against her will. On or about October 26, 1994, Respondent, Dorothy B. Davis, did unlaw- fully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well- founded fear in Sandra Carey that said violence was imminent, by swerving toward her with deadly weapon, to wit: a motor vehicle. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did unlawfully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well-founded fear in Sandra Carey that said violence was imminent, by throwing at her or in her direction a deadly weapon, to wit: beer bottles. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did knowingly use intimidation or physical force, threats, or attempts thereto, or offered pecuniary benefit or gain to Sandra Carey with intent to influence that person’s testimony or to cause or induce that person to withhold testimony from an official proceeding or be absent from an official proceeding to which such person has been summoned by legal process. On or between October 20 and October 26, 1994, Respondent, Dorothy B. Davis, did unlawfully, with intent to place Sandra Carey in reasonable fear of death or bodily injury, willfully and maliciously, follow or harass said person and make a credible threat, by assaulting her with a motor vehicle, throwing beer bottles at her, and/or making verbal threats of bodily harm, which caused said person substantial emotional distress and served no legitimate purpose. (The allegations in the Administrative Complaint are set out in paragraph form for clarity.) On October 18, 1994, in Belle Glade, Florida, a fight took place in or near a grocery store parking lot in the 400 block of Southwest Avenue B Place between an unidentified man and a woman named Shirkia Webb. Ms. Webb was apparently not the winner of this fight, and the fight apparently ended when Ms. Webb was knocked to the ground. Ms. Davis drove into the parking lot at about the time Ms. Webb was knocked to the ground. She was driving her Ford Bronco, and her children, including her seven- month-old baby, were in the back seat. When Ms. Davis stopped the car and opened the door, Ms. Webb ran over to her and began talking to her. Ms. Davis then left her children in the vehicle and walked into the grocery store, leaving the keys in the ignition. While Ms. Davis was in the grocery store, Ms. Webb got into the Bronco and ran it into the vehicle owned by the unidentified man with whom she had been fighting. This vehicle was apparently parked in the grocery store parking lot at the time. When Ms. Davis came out of the grocery store, a crowd of people had gathered. She saw that her Bronco had been involved in an accident, and she learned that Ms. Webb had been driving the vehicle. She spoke with one of the police officers on the scene and told him that Ms. Webb had stolen her Bronco with her children inside. She later filed grand theft charges against Ms. Webb. Ms. Carey either overheard Ms. Davis telling the police officer that Ms. Webb had stolen her Bronco or someone told Ms. Carey that Ms. Davis had done so. Ms. Carey then went to one of the police officers and told him that Ms. Davis had given Ms. Webb her Bronco knowing that Ms. Webb intended to use it to hit the man’s vehicle. Someone in the crowd told Ms. Davis what Ms. Carey told the police officers. Ms. Davis was upset at the time because her children were in the Bronco when Ms. Webb hit the other vehicle. When she learned that Ms. Carey told the police that she had given Ms. Webb permission to drive the Bronco, she rushed up to Ms. Carey and struck her in the chest, yelling at her to stop telling lies. This incident was observed by several police officers, and Ms. Davis does not deny that she struck Ms. Carey on this occasion. On October 20, 1994, Ms. Davis was driving her Bronco down 5th Street in Belle Glade, and she speeded up when she saw Ms. Carey crossing the street ahead of her. Ms. Carey was carrying her child, whom she had just picked up from the baby sitter, and she hurried across the street because she believed Ms. Davis would hit her if she did not move out of the way of the Bronco. Ms. Carey reported this incident to the police on October 20. In a second incident, Ms. Carey was at the Glades Wash House when Ms. Davis pulled up in her Bronco and told Ms. Carey she was going to “mess her up” for telling the police that she had given Ms. Webb permission to drive her Bronco during the altercation which took place on October Ms. Carey reported this incident to the police on October 21, 1994. On October 26, 1994, Ms. Davis was driving her Bronco on 4th Street in Belle Glade and she swerved toward Ms. Carey as she was walking along the side of the road. Ms. Carey moved out of the way to avoid being hit; Ms. Davis was laughing as she drove past Ms. Carey. Ms. Carey reported this incident to the police on October 26, 1994. Ms. Carey feared that Ms. Davis would hurt her or her baby, and she experienced some emotional distress until after the October 26 incident. After this incident, she did not think about it anymore and went on with her life because she had no further contact or problem with Ms. Davis. The evidence presented is clear and convincing that Ms. Davis struck Ms. Carey in the chest on October 18, 1994. This act falls within the definition of battery found in section 784.03(1), Florida Statutes, which constitutes a first degree misdemeanor pursuant to section 784.03(2). The evidence presented is clear and convincing that Ms. Davis threatened Ms. Carey with bodily harm both by trying to run her down on the street on October 20 and October 26 and by her words at the wash house on October These threats fall within the definition of assault found in section 784.011(1), Florida Statutes, which constitutes a second degree misdemeanor pursuant to section 784.011(2).1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, issue a final order finding that Dorothy B. Davis has failed to maintain good moral character and revoking her certification as a corrections officer. DONE AND ENTERED this 6th day of February, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
Findings Of Fact The Parties. The Respondent, the Department of Natural Resources (hereinafter referred to as the "Department") is a state agency charged with the responsibility to manage Florida's parks and recreation areas pursuant to Chapter 258, Florida Statutes, and the rules promulgated thereunder. The Department is also charged with responsibility to administer, supervise, develop and conserve the natural resources of the State pursuant to Chapter 370, Florida Statutes, and the rules promulgated thereunder. At issue in this proceeding are certain actions taken by the Department, primarily through the Department's Division of Recreation and Parks (hereinafter referred to as the "Division"), with regard to Amelia Island State Recreation Area (hereinafter referred to as the "AISRA"). The AISRA is located at the southern tip of Amelia Island, Nassau County, Florida. Petitioner Board of County Commissioners (hereinafter referred to as the "Board"), of Nassau County, Florida, is the governing body of Nassau County, Florida, a non-charter county of the State of Florida. The Board is authorized to enact ordinances not inconsistent with general or special law pursuant to Section 1(f), Article VIII of the Constitution of Florida. The Board is interested in insuring continued vehicular access to the southern end of Amelia Island within the AISRA. In part, the Board's concern is caused by a belief that the southern end of the AISRA is a good fishing area. The Board's concern is also based upon a belief that access to the southern end of the island will be severely restricted to the old and disabled if vehicular traffic is prohibited in the AISRA. The Board has authorized participation in this proceeding. Petitioner Amelia Island Company is a Florida corporation: Amelia Island Company has developed a resort and residential community known as Amelia Island Plantation (hereinafter referred to as the "Plantation"), on Amelia Island. Amelia Island Company also owns Amelia Island Inn, 2 undeveloped tracts of land, a beach club, a conference center, a tennis facility and golf courses. All of these properties are located within the Plantation. The eastern boundary of the Plantation consists of Atlantic Ocean beach. Some facilities of Amelia Island Company front on the Atlantic Ocean. The Plantation is located north of the AISRA. Amelia Island Company manages approximately 525 residential units within the Plantation pursuant to rental contracts with the unit owners. The units are rented and guests have the right to use the Plantation beach. Some owners and guests of the properties located within the Plantation use the AISRA for fishing. The weight of the evidence failed to prove how many people use the AISRA or how often. Petitioner Amelia Island Plantation Community Association (hereinafter referred to as the "AIPCA"), is an association: The members of AIPCA represent the residential communities within the Plantation, including Amelia Island Company and individual property owners. Members participate in the AIPCA through eighteen condominium associations representing the individual property owners. The AIPCA maintains the Plantation beach. The AIPCA owns the roads, parks and some other facilities within the Plantation. Petitioner Amelia Island Rental Property Owners Association (hereinafter referred to as the AIRPOA) is an association: AIRPOA consists of approximately 410 residential unit owners whose units are located within the Plantation. AIRPOA member units are rented through the Amelia Island Company. The AIRPOA has supported activities designed to stop beach driving on the Plantation beach. Petitioner Dune Club Company II is a Florida corporation: The company owns undeveloped land which it intends to develop as multifamily condominiums. The land owned by Dune Club Company II is located in the Plantation. Therefore, future owners of condominiums will have the right to use the Plantation beach. Petitioner Amelia Island Holding Company is a Florida corporation: The corporation owns undeveloped land within the Dunes Club development, which is located within the Plantation. Future owners of property within this development will have the right to use the Plantation beach. Petitioner Piper Dunes is a Florida corporation: Piper Dunes is developing multifamily condominiums within the Plantation. Future owners of Piper Dunes' condominiums will have the right to use the Plantation beach. Petitioners Dunes Club Community Association, Dunes Row Community Association, Beachwalker Villas Association, Inc., Captain's Court Villas Association, Inc., Inn Rooms at Amelia, a Condominium Association, Inc., Sandcastles at Amelia Island Condominium Association, Inc., Sea Dunes Condominium Association, Inc., Shipwatch Villas Association, Inc., Spyglass Villas Owners Association, Inc., Turtle Dunes Condominium Association, Inc., and Windsong at Amelia Island Plantation Community Association, Inc., (hereinafter referred to as the "Plantation Associations") are Florida corporations and condominium associations: The Plantation Associations are comprised of residents and owners located within the Plantation. The Plantation Associations' members are all proximate to the Atlantic Ocean beach of the Plantation. The governing boards of the Plantation Associations have been active in attempting to restrict driving on the beach running through the Plantation. A substantial number of property owners of the Plantation Associations use the beach running through the Plantation for sunbathing, swimming, surfing, walking, jogging, and other beach activities. Geography. Amelia Island is located at the most northeasterly corner of Nassau County, Florida, and the State of Florida. Amelia Island is bounded on the east by the Atlantic Ocean and on the west by the Intercoastal Waterway. Where the Intercoastal Waterway meets the Atlantic Ocean at the southern tip of the island is named Nassau Sound. The AISRA is bounded on the southwest by Nassau Sound, on the southeast by the Atlantic Ocean, on the north-northwest by Highway A1A and on the north by a relatively large area of undeveloped, privately-owned land. It is approximately one-half mile from the areas which have been designated by the Department as parking areas in the AISRA to the southernmost tip of Amelia Island. The distance can make it more difficult for fishermen to access the southern end of the island. The Creation of the AISRA. The previous owners of the property which makes up the AISRA transferred the property by warranty deeds dated July 1, 1983, December 19, 1983 and June 28, 1985 to the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (hereinafter referred to as the "Trustees"). See Petitioners' exhibit 16. The Division took over management of the property which makes up the AISRA pursuant to a Lease Agreement and pursuant to a Management Agreement for Certain Submerged Lands Bordering State Lands (hereinafter referred to as the "Management Agreement"). The Lease Agreement, dated November 19, 1984, and the Management Agreement were entered into between the Trustees and the Division. Petitioners' exhibit 16. The Lease Agreement was amended on June 22, 1987. Petitioners' exhibit 16. The Management Agreement was amended on January 19, 1988. Petitioners' exhibit 16. In general, the property was leased to the Division for recreation and conservation purposes. The Division is given authority to manage the property for public health and safety, for protection of the property and to be managed as a recreation area. In part, the Management Agreement, as amended, gave the Division authority over: All those sovereign submerged lands lying within 400 feet of the mean high water or ordinary high water line . . . . The Lease Agreement and Management Agreement require that the Division, within twelve months of entering into the Lease Agreement, adopt a Management Plan providing for the "basic guidance for all management activities." Management Plans are to be reviewed by the Trustees every five years after the first Management Plan is adopted. No Management Plan has been adopted by the Department. The evidence in this proceeding failed to prove that the Trustees have taken any action against the Division for failing to adopt a Management Plan as contemplated by the Lease Agreement. The evidence also failed to prove that the Petitioners are privy to the Lease Agreement or Management Agreement. Administratively, the Division treated the AISRA as part of the Talbot Island State Geo Park. The Geo Park is made up of Big Talbot Island State Park, Little Talbot Island State Park, Fort George Island Cultural Site and the AISRA. Therefore, because the administrative offices of the Talbot Island State Geo Park were not located at the AISRA, the AISRA has received minimal attention since its creation. Beach Driving and Parking; Prior to, and Immediately After, the Acquisition of the AISRA by the Department. Prior to the creation of the AISRA, people drove and parked motor vehicles on the beach which is now part of the AISRA. People were able, depending on the tides, to drive on the beach of the AISRA from the southwest end of Amelia Island from Highway A1A at Nassau Sound, around the southern tip of the island, and north on the Atlantic side of Amelia Island. After the Division acquired responsibility for the management of AISRA, the Division, and thus the Department, did not take any action to prohibit all driving and parking on the beach in the AISRA. See, however, section J, infra. Legislative Prohibition Against Driving on Coastal Beaches. Prior to 1985, driving and parking on the beach fronting the Plantation, as well as other beaches under the jurisdiction of the Board, was permissible. In 1985, the Florida Legislature enacted Section 161.58, Florida Statutes. In relevant part, Section 161.58, Florida Statutes, as amended by Chapter 88-106, Laws of Florida, provided that "[v]ehicular traffic . . . is prohibited on coastal beaches " As amended, Section 161.58, Florida Statutes, allows a "local government with jurisdiction over a coastal beach or portions of a coastal beach" to authorize vehicular traffic "on all portions of the beaches under its jurisdiction" [emphasis added], upon three-fifths vote of the local government's governing body and if certain conditions concerning existing off-beach parking are met. The Special Act, Chapter 89-455, Laws of Florida. A dispute over Section 161.58, Florida Statutes, arose between the Board and various private landowners on Amelia Island, including some, if not all, of the Petitioners in these cases. The Board was opposed to the ban on vehicular traffic on the beaches of Amelia Island provided by Section 161.58, Florida Statutes, while the private landowners were in favor of the total ban. As a result of the dispute between the Board and private landowners, the Board and private landowners approached the legislative representatives for their area. As a result of this effort, the Florida Legislature enacted a special act, Senate Bill 1577, Chapter 89-445, Laws of Florida (hereinafter referred to as the "Special Act"). The Special Act represented a compromise between the positions of the Board and the private landowners. Chapter 89-445, Laws of Florida, provides as follows: . . . . Section 1. (1) Scott Road shall be relocated south of the Amelia Surf and Racquet Club Condominium in Nassau County. As part of this relocation, off-beach parking spaces for 100 vehicles must be provided. In addition, access for motorized vehicles onto the Atlantic Beach area must be provided. Parking on the beach is permitted in Nassau County in the area known geographically as Peters Point Road to Scott Road, as relocated after September 30, 1989. Parking on the beach in such area is prohibited after Nassau County issues a certificate of occupancy for the planned Ritz Carlton Hotel. On-beach parking shall continue to be permitted in the following nonresort areas: The Peters Road intersection with the beach area north to the city limits of Fernandina Beach. The Lewis Street intersection with the beach area north to the developed resort area parcel and south to the developed resort area parcel. The southerly end of Amelia Island from the Nassau Sound side to the developed resort area parcel on the Atlantic Ocean side. The term "developed resort area" means any property that is subject to a development order as of the effective date for this act if such development order indicates resort activities. (4)(a) On-beach parking in front of an undeveloped resort area parcel shall be prohibited upon the issuance of a certificate of occupancy for that parcel, contingent upon the existence of adequate off-beach parking during the peak period. (b) For purposes of determining the existence of adequate off-beach parking, the parking available at sites off the beach, measured for the entire beach, under the exclusive jurisdiction of the Nassau County Commission must be considered. The peak period must be determined as measured by the Department of Natural Resources formula as published in the Administrative Weekly in May 1989, except that 70 percent of peak user must be the standard. Those sites which are permanent on-beach parking sites must be included in the determination. Section 2. Any resort area parcels which are developed and which are not contiguous must have lanes of traffic connecting with defined lanes identified by traffic-path indicators. Section 3. A motorized tram system is hereby authorized on the Atlantic Ocean beaches within the jurisdiction of Nassau County. Section 4. This act shall take effect March 1, 1990. . . . . County Ordinance 89-23. Subsequent to the enactment of the Special Act, the Board enacted Ordinance 89-23, which provides as follows: ORDINANCE 89 - 23 AN ORDINANCE DETERMINING, PURSUANT TO RULE 16B-45, FLORIDA ADMINISTRATIVE CODE, THAT LESS THAN 50 PERCENT OF THE PEAK USER DEMAND FOR OFF BEACH PARKING IS AVAILABLE; PROVIDING AN EFFECTIVE DATE. WHEREAS, Paragraph 161.58(2)(b), Florida Statutes, mandates that vehicular traffic be prohibited from coastal beaches except where a local government has determined by October 1, 1989, in accordance with the rules of the Department of Natural Resources that less than fifty percent (50%) of the peak user demand for off-beach parking is available; and WHEREAS, the Board of County Commissioners had determined that it is in the public interest to preserve the maximum access to the public beaches of Nassau County; and WHEREAS, the public was in jeopardy of losing access to a majority of beaches in Nassau County unless action was taken by the Board on behalf of the citizens of the County in order to preserve the citizens' right to their beaches; and WHEREAS, the Legislature adopted Senate Bill 1577, which is a local bill pertaining to vehicular access to the Nassau County beaches; and WHEREAS, the Department of Natural Resources has adopted Rule 16B-47, Florida Administrative Code; and WHEREAS, pursuant to Rule 16B-47.004, the Board of County Commissioners desires to continue to authorize vehicular traffic on its County beaches. NOW, THEREFORE, BE IT ORDAINED this 12th day of September, 1989, by the Board of County Commissioners of Nassau County, Florida, as follows: SECTION 1. TITLE This Ordinance shall be known as the "Authorized Beach Vehicular Traffic Ordinance". SECTION 2. INVENTORY OF AVAILABLE OFF-BEACH PARKING The following is an inventory of the available off-beach parking within the Board of County Commissioners of Nassau County's jurisdiction: Pasco access - 10 parking spaces Peters Point Park - 200 parking spaces Scott Road - 50 parking spaces Burney Park - 200 parking spaces Dunes Club access - 30 parking spaces South End Ramp - 25 parking spaces TOTAL OFF-BEACH PUBLIC PARKING SPACES 515 SECTION 3. PEAK USER DEMAND FOR OFF-BEACH PARKING The Board of County Commissioners has determined from the Kings Bay Area Recreation Master Plan dated March 8, 1985, that: In 1985, the study indicated that peak day on-beach demand was 4,775 people per day. The study further indicated that 1,640 parking spaces would be needed for the year 1985. The study further projected that in 1990 the peak day beach users would be 5,669 and require 1,995 parking spaces. The study further indicates that in the year 2000 the peak day beach users would be 7,487 and require 2,602 parking spaces. The above represents peak day beach users and off-beach parking spaces required from Sadler Road to the South End of the island. SECTION 4. AVAILABLE PERCENTAGE OF PEAK USER DEMAND FOR OFF-BEACH PARKING The Board of County Commissioners has determined, based upon the above referenced study, that there is less than fifty percent (50%) of the peak user demand for off-beach parking available and, as a result, the Board hereby authorizes vehicular traffic to continue to utilize the County beach areas within its jurisdiction. Commencing March 1, 1990, the county beach areas available to vehicular traffic shall be set forth in the Special Act referred to as Senate Bill 1577. SECTION 5. EFFECTIVE DATE This Ordinance shall take effect upon being filed in the Secretary of State's office. . . . . Amelia Island Company v. Nassau County, Florida. Despite the enactment of the Special Act and Ordinance 89-23, some of the Petitioners were not satisfied because vehicular traffic continued along the beaches in front of their property. Consequently, a number of the Petitioners, including Amelia Island Company, brought an action for declaratory judgment against the Board in the Circuit Court, Fourth Judicial Circuit in and for Nassau County, Case No. 90-397. Parking was only authorized by the Special Act and Ordinance 89-23 on beaches fronting undeveloped property. Parking was not authorized on beaches fronting developed property such as the property of most of the Petitioners. Those Petitioners which were involved in the litigation in the Circuit Court were interested in insuring that vehicles were not allowed to drive along the beach in front of their developed areas in order to access the beach in front of undeveloped areas. On February 1, 1991, the Circuit Court entered a Final Judgment in Case No. 90-397 (hereinafter referred to as the "Final Judgment"), and another related case which had been consolidated with it. Among other things, the Court concluded in the Final Judgment, the following: Section 161.58, Florida Statutes, "prohibits vehicular traffic on all beaches in the State of Florida except where the local government authorizes such traffic and determines that 'less than 50% of the peak user demand for off- beach parking is available.'" The Special Act "authorizes vehicular traffic on beaches within the exclusive jurisdiction of Nassau County." [Emphasis added]. The Court further stated: Senate Bill 1577 [Chapter 89-455, Laws of Florida], creates an exception for beaches under the exclusive jurisdiction of Nassau County by authorizing parking in certain areas and directing the creation of lanes of traffic on its beaches. It goes without saying that for one to use the parking areas on the beaches designated by the legislature, one must be able to drive. . . . The Court must conclude that Senate Bill 1577, by inference and implication authorizes vehicular traffic on the beaches within the exclusive jurisdiction of Nassau County. As a result, it conflicts with Chapter 161, Florida Statutes, and the Special Act takes precedence. Consequently, even if the Ordinance is invalid, Senate Bill 1577 authorizes vehicular traffic on the beaches within the exclusive jurisdiction of Nassau County. Ordinance 89-23 "permits vehicular traffic within the exclusive jurisdiction of Nassau County." [Emphasis added]. Ordinance 89-23 was enacted consistent with the exception against vehicular traffic on coastal beaches of Section 161.58, Florida Statutes. Ordinance 89-23 is valid. As a result of the Final Judgment, beach driving was still permitted on Nassau County beaches that fronted developed and undeveloped property. The Final Judgment did not specifically address the beach of the AISRA. In fact, the Final Judgment is expressly limited to beaches "within the exclusive jurisdiction of Nassau County." The Final Judgment was appealed to the District Court of Appeal, First District. The District Court reversed the Final Judgment in part and affirmed it in part. Amelia Island Company v. Nassau County, 585 So.2d 1061 (Fla. 1st DCA 1991). In pertinent part, the District Court concluded the following: In sum, the trial court correctly found that Nassau County Ordinance 89-23 is valid, but the final judgment is in error to the extent that it interprets the ordinance and SB 1577 as authorizing unrestricted vehicular traffic over the entire beach. Instead, the county beach areas available to vehicular traffic . . . include only areas reasonably necessary to permit use of all specified beach parking in the manner permitted under the terms of the special act. Accordingly, the final judgment is affirmed in part, reversed in part, and remanded for entry of judgment in conformity with this opinion. Amelia Island Company, 585 So.2d at 1064. On April 28, 1992, the Circuit Court entered a Final Judgment (hereinafter referred to as the "Final Judgment on Remand"), on remand from the District Court. Among other things, the Final Judgment on Remand lists those areas "on the beaches within the jurisdiction of Nassau County" where driving is prohibited. No reference to the AISRA is contained in the listing. There is a relatively large area of undeveloped privately-owned land north of the AISRA and south of the land owned by some of the Petitioners. As a result of the Special Act and Ordinance 89-23, parking is allowed on the beach bounding this undeveloped property. As a result of the Final Judgment on Remand, vehicular traffic was authorized to travel to the undeveloped property beach. Such access was available, however, by traveling around the southern tip of Amelia Island through the AISRA. Consequently, vehicular traffic would not be allowed on the beaches fronting the property of the Petitioners (other than the Board) so long as beach driving is allowed through the AISRA. The Final Judgment on Remand, however, recognized that it was possible that beach driving could be prohibited in the AISRA despite Ordinance 89-23 and the Special Act. Although the Circuit Court and District Court did not specifically construe section 1(3)(c) of the Special Act, the Final Judgment on Remand includes the following reference to the southern end of Amelia Island: 6. In the event the access to the south end is closed to public use by any state or federal law or regulation (and for so long as such access is closed), access to the parking areas permitted by Section 1(3)(c) of the Senate Bill will be permitted from the Lewis Street access south to the southerly end of Amelia Island. In addition, in the event any state or federal law or regulation closes or limits the access to the south end of any part of a twenty-four hour period, then during such time, access to the south end will be permitted from the Lewis Street south (unless such closure or limitation is applicable to all the beaches under the jurisdiction of Nassau County), in accordance with the provisions of Senate Bill 1577. Recognizing that beach driving could be prohibited in the AISRA, which would in turn prevent access to beaches of the privately-owned undeveloped tracts of property immediately to the north of the AISRA, the Final Judgment on Remand recognized that beach driving would have to be allowed from north of the privately-owned undeveloped tracts of property. The only northerly access to the beaches of the undeveloped privately-owned property is a road located north of the property owned by Petitioners (excluding Nassau County). Consequently, beach traffic would have to travel along the beach of the Plantation to reach the undeveloped privately-owned property if beach driving were prohibited in the AISRA. Powers and Duties of the Division; The General Prohibition Against Driving and Parking in State Parks. Section 258.004, Florida Statutes, sets out, in general, the duties of the Division as follows: 258.004 Duties of division.- It shall be the duty of the Division of Recreation and Parks of the Department of Natural Resources to supervise, administer, regulate, and control the operation of all public parks, including all monuments, memorials, sites of historic interest and value, sites of archaeological interest and value owned, or which may be acquired, by the state, or to the operation, development, preservation, and maintenance of which the state may have made or may make contribution or appropriation of public funds. The Division of Recreation and Parks shall preserve, manage, regulate, and protect all parks and recreational areas held by the state and may provide these services by contract or interagency agreement for any water management district when the government board of a water management district designates or sets aside any park or recreation area within its boundaries. In order to implement the Division's responsibilities pursuant to Chapter 258, Florida Statutes, the Department enacted Chapter 16D-2, Florida Administrative Code. Section 258.007, Florida Statutes, sets out the power of the Division to adopt rules. In relevant part, the Division is given the following rule- making power: (2) The division shall make and publish such rules and regulations as it may deem necessary or proper for the management and use of the parks, monuments, and memorials under its jurisdiction, and the violation of any of the rules and regulations authorized by this section shall be a misdemeanor and punishable accordingly. Pursuant to the authority and duties assigned to the Division by Chapter 258, Florida Statutes, the Department has adopted rules governing vehicles and traffic on lands within the Department's jurisdiction, including state recreation areas such as the AISRA. Rule 16D-2.002, Florida Administrative Code. See also Rule 16D-2.001, Florida Administrative Code. In particular, the Department has provided the following with regard to driving: Restriction to Roads. No person shall drive any vehicle on any area except designated roads, parking areas, or other such designated areas. Rule 16D-2.002(4), Florida Administrative Code. Pursuant to this rule, driving is not allowed anywhere in a state recreation area except to the extent specifically designated by the Division. With regard to parking, the Department has provided the following: Parking. All vehicles shall be parked only in established parking areas or in such other areas and at such time as the Division may designate. Rule 16D-2.002(5), Florida Administrative Code. Pursuant to this rule, parking is not allowed anywhere in a state recreation area except to the extent specifically designated by the Division. The evidence failed to prove that Rules 16D-2.002(4) and (5), Florida Administrative Code, are invalid or otherwise not applicable in these cases. Rules 16D-2.002(4) and (5), Florida Administrative Code, apply to the AISRA. As evidenced in findings of fact 29, 57 and 59, following the acquisition and lease of AISRA to the Division, the Division (and, therefore, the Department) failed to totally enforce Rules 16D-2.002(4) and (5), Florida Administrative Code. Instead, the Division allowed most of the historical beach activities, including beach driving and parking, to continue despite the general prohibition against driving and parking unless otherwise designated by the Department pursuant to Rules 16D-2.002(4) and (5), Florida Administrative Code. In effect, by failing to enforce Rules 16D-2.002(4) and (5), Florida Administrative Code, the Division authorized driving and parking in the AISRA without taking any action to formally "designate" authorized parking or driving areas as contemplated by Rules 16D-2.002(4) and (5), Florida Administrative Code. The Department's Subsequent Decision to Enforce Rules 16D-2.002(4) and (5), Florida Administrative Code. In part, because of the fact that the AISRA was a satellite of Talbot Island State Geo Park, Robert Joseph, the Park Manager, did not take any action to totally enforce the ban of Rules 16D-2.002(4) or (5), Florida Administrative Code, on beach parking and driving in the AISRA, when the AISRA was first created. Mr. Joseph's decision was also based, in part, on the fact that such activities had historically been allowed. Therefore, Mr. Joseph was concerned about the impact that enforcement of the rules would have on the public. Mr. Joseph did take action to enforce the prohibitions of the rules on the dunes of the AISRA and in areas covered by vegetation in the AISRA. Mr. Joseph believed that the issue of beach driving and parking would have to be looked at closely in the future. In subsequent years, after the services of environmental specialists of the Department became available to evaluate the AISRA, the rules banning parking and driving in state parks were enforced in the AISRA to the extent that it appeared that shore bird nesting areas were being negatively impacted by driving and parking. Eventually, Mr. Joseph became convinced that the ban on parking and driving of Rules 16D-2.002(4) and (5), Florida Administrative Code, needed to be enforced throughout the AISRA. Mr. Joseph made this decision based upon the following general observations: Driving on the beach of the AISRA had been increasing since the Department's acquisition of responsibility for the AISRA, further endangering the resources of the AISRA; and There was an increase of safety hazards as a result of the increased vehicular activity. In light of Mr. Joseph's fear that the proposed enforcement of the Department's rules banning parking and driving in the AISRA would be controversial, Mr. Joseph decided to make a recommendation to his supervisors that beach driving be prohibited in order to allow their input. Mr. Joseph recommended an immediate and total ban on all beach driving. Mr. Joseph's recommendation was ultimately reviewed by the District Manager for the district of the Division in which the AISRA is located, the Assistant Division Director, the Division Director and the Department's Policy Coordinating Committee (hereinafter referred to as the "PCC"). Among those serving on the PCC were the Assistant Executive Director of the Department, Deputy Assistant Executive Director of the Department and the Director of the Division. The recommendation was also reviewed by the Chief of the Bureau of Natural and Cultural Resources of the Department. The PCC is an advisory committee which considers various issues which the Department must confront. The PCC makes recommendations to the Executive Director of the Department concerning a variety of policy decisions. After considering Mr. Joseph's recommendation at a meeting of the PCC on July 22, 1991, the PCC adopted the following: Amelia Island State Recreation Area Beach driving will be phased out beginning with a night driving ban effective January 1, 1992 and ending with a total ban on April 1, 1992. The status and legal implications of Chapter 89-445, Laws of Florida, will be investigated and clarified as it relates to driving on the island. Ultimately, Mr. Joseph's recommendation, as modified by the PCC, was reviewed, further modified and accepted by the Executive Director of the Department. Implementation of the Department's Decision to Enforce Rules 16D-2.002(4) and (5), Florida Administrative Code. Mr. Joseph was ultimately informed that he should prohibit beach driving in the AISRA in the manner ultimately explained on the Information Sheet at issue in this proceeding. On or about April 1, 1992, Mr. Joseph caused signs to be posted in the AISRA notifying the public of the Department's decision concerning beach driving and parking (hereinafter referred to as the "Signs"). It was indicated on the Signs, when and where driving and parking on the beach of the AISRA was allowed and not allowed. The Signs were intended to notify the public that there were two designated parking areas in the AISRA. One parking area was designated at the southwestern edge of the AISRA adjacent to Highway A1A. The other parking area was designated at the northeast edge of the AISRA on the Atlantic ocean side of the AISRA. The Signs were also intended to notify the public that driving on the beach was restricted from April 1 to October 31, 1992. The Signs indicated that between April 1 to October 31, 1992, driving was not allowed south of the two designated parking areas. Although couched in terms of a restriction, the Signs also have the effect of designating where and when vehicular traffic is allowable in the AISRA as contemplated by Rules 16D-2.002(4) and (5), Florida Administrative Code. Subsequent to placing the Signs in the AISRA, Mr. Joseph became concerned that there was confusion over exactly what the Signs allowed and prohibited. Consequently, Mr. Joseph decided to distribute the Information Sheet in an effort to better inform the public of what was acceptable in the AISRA. The Information Sheet (without the map that was attached thereto) provided the following: AMELIA ISLAND STATE RECREATION AREA BEACH ACCESS INFORMATION SHEET DNR's policy to regulate beach driving is clearly established. The Division of Recreation and Parks (DRP), with management authority for Amelia Island State Recreation Area (AISRA), is charged with the multiple tasks of providing maximum access for recreational pursuits with protection of Florida's natural values and rare and fragile resources. Beginning April 1, 1992, and continuing until October 31, 1992, a seasonal program of beach access will prohibit vehicular beach access to the southernmost tip of Amelia Island within AISRA. Pedestrian access to the south tip is encouraged during this period. Vehicular parking will be allowed during this period from AISRA boundaries to signs posted on the beach. Access to, and parking on the beach in these areas will be allowed on the hard sand beach area below the high tide line. No driving or parking will be allowed above the high tide line. The entire beach will be closed to parking and driving during high tide and after sunset. The seasonal program of beach access will continue until October 31, 1992, whereupon beach driving and parking will again be permitted on the entire beach within AISRA below the high tide line. Absence of vehicles from the south tip will further protect one of only three designated Critical Wildlife Areas (CWA) in Northeast Florida. Several listed species utilize the Amelia Island CWA, including american oystercatchers and the threatened least tern. During nesting season, park visitors should avoid walking within a 100 yard perimeter of the designated CWA. Adult birds must remain on the nest during the day to protect eggs and hatchlings from the intense heat from the sun. Even temporary abandonment may cause the eggs to literally bake. The boundaries of the CWA will be designated by red and white nesting area signs. The program will improve nesting habitat for marine turtles. The absence of artificial lights, and vehicular traffic will combine with the natural beach profile to enhance nesting. Amelia Island State Recreation Area now offers a recreational experience available nowhere else on Amelia Island. The ability to walk a stretch of the island which is undeveloped, pristine, and un-impacted, with a chance to view native wildlife that has been excluded elsewhere to the brink of extinction. For more information, please contact the Talbot Islands State Park Ranger Station on Little Talbot, or call (904) 251-2320. SUMMARY OF RESTRICTIONS (April 1, 1992 - October 31, 1992) No driving on the beach after sunset. No driving on the beach at high tide. Driving allowed on hard sand beach only. (below previous high tide line) See attached map for authorized parking areas. Petitioners' exhibit 2 and Respondent's exhibit 1. The Information Sheet was distributed to persons entering the AISRA. Although the Signs and the Information Sheet are limited to a particular period of time, the evidence established that the decisions of the Department evidenced by the Signs and the Information Sheet will apply to future years also. The parties have characterized the action of the Department evidenced on the Signs and in the Information Sheet as a restriction on parking and beach vehicular traffic. Because driving and parking on the beach has historically continued in the AISRA, from a practical standpoint, the Signs and Information Sheet do impose a restriction. Technically and legally, however, without the designation of appropriate parking areas on the Signs and the Information Sheet, parking and vehicular traffic on the beach of the AISRA was already prohibited or restricted in the AISRA pursuant to Rules 16D-2.002(4) and (5), Florida Administrative Code. The Signs and Information Sheet constitute a designation by the Department, pursuant to Rules 16D-2.002(4) and (5), Florida Administrative Code, of when and where driving and parking is permitted in the AISRA and not a ban on driving or parking. The Signs and Information Sheet apply to any person who uses the AISRA. It has no application to other areas operated or managed by the Division. The Signs and Information Sheet inform the public of two separate decisions of the Department. The Petitioners have challenged the Signs and Information Sheet to the extent that they inform the public of the Department's first decision: the decision to begin enforcement of the ban on driving and parking in state parks set out in Rules 16D-2.002(4) and (5), Florida Administrative Code. The Petitioners have not, however, challenged the Signs and Information Sheet to the extent that they inform the public of the Department's second decision: the decision to designate the acceptable areas and times for beach vehicular traffic and parking in the AISRA. By enforcing the prohibition against beach driving in the AISRA, vehicular traffic is no longer able, at least from April 1 to October 31 of each year, to access the beaches of the undeveloped, privately-owned tracts of land north of the AISRA from the south. Therefore, pursuant to the Final Judgment on Remand, vehicular traffic is allowed to travel from the beach access road located to the north of the property of the Petitioners (other than the Board), to the south on the beaches running through the Petitioners' property. The Department has conceded that it has not followed the rule making procedures of Section 120.54, Florida Statutes, to adopt the Signs or the Information Sheet, and the policies evidenced therein, as a rule.
The Issue Whether Petitioners' request to negotiate or competitively bid for a concession for amusement devices at service areas on the Florida Turnpike should be granted, pursuant to Section 340.091, Florida Statutes. This proceeding arose as a result of Respondent Department of Transportation's denial of the request of Petitioners Florida Sunshine Parkway Citrus, Inc. and Joe A. Chambliss to negotiate or competitively bid for a concession to install and operate video amusement machines at the various service plazas of the Florida Turnpike. Sunshine Parkway Restaurants, Inc. petitioned for leave to intervene in the proceedings and was granted status as an intervenor. Posthearing submissions by the parties in the form of proposed recommended orders have been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact On June 1, 1982, Petitioner Florida Sunshine Parkway Citrus, Inc. entered into two agreements with Respondent Department of Transportation under which Petitioner was granted a five-year license to manage and operate the citrus products shops located at the Pompano and Fort Pierce service plazas on the Florida Turnpike, pursuant to Section 340.091, Florida Statutes. The agreements provided that the shops would be used for the sale of products "relating to Florida citrus and/or goods promoting the State of Florida, including but not limited to all Florida products and tropical juices." Petitioner was awarded the contracts as a result of a competitive bidding process. Petitioner Joe A. Chambliss is the president of Florida Sunshine Parkway Citrus, Inc. Chambliss also is a sub-lessee of two Texaco Service Stations at the Fort Pierce and Snapper Creek service plazas. (Testimony of Chambliss; Respondent's Exhibits 10-19, Joint Exhibit 1 (Stipulation)) On November 29, 1978, Respondent entered into an agreement with Intervenor Gladieux Food Services, Inc. and Canteen Corporation (Gladieux) whereby Respondent leased certain portions of buildings at eight service plazas on the Sunshine State Parkway (Florida Turnpike) for a period of ten years to operate and manage food and related facilities at the leased premises. Sunshine Parkway Restaurants, Inc. is a joint venture of Gladieux/Canteen. The lease provided that Gladieux would have the exclusive use of the areas designated as restaurants for the purposes of serving food, nonalcoholic beverages and "related merchandise." The agreement provided that Gladieux would have non- exclusive use, but maintenance responsibilities for parking areas, restrooms, and the lobby and vending areas. The agreement further provided that Respondent would have the exclusive right to approve the items to be sold, and required Gladieux to furnish all vending machines required for operating a vending center in designated vending areas. Gladieux was awarded the contract as a result of a competitive bidding process. (Testimony of Owen, Petitioner's Exhibit 9, Respondent's Exhibit 1, Joint Exhibit 1 (Stipulation)) In addition to the agreements with petitioner to operate citrus products shops, other contracts for such shops at the other service plazas are operated by licensees as a result of a competitive bid process. Similarly, all contracts for the sale of motor fuel at the various service plazas were awarded as the result of competitive bids. Respondent also has an existing license agreement with Florida Folder Distributing Company to operate an information leaflet rack at six of the seven service plazas where informational material promoting facilities and points of interest in the state are made available to the public. This agreement also was entered into after competitive bidding. The information racks are located in the lobby or corridor areas of the service plazas. (Testimony of Owen, Petitioner's Exhibits 5-8, Joint Exhibit 1(Stipulation)) Vending machines are operated by Gladieux at the various service plazas of the Turnpike. They include food and drink machines, machines that produce wax figures, and photograph machines. Most of the vending machines are located in the restaurant areas, but those at the Pompano and West Palm Beach plazas are placed in the "common areas" of the plazas. (Testimony of Chambliss, Owen, Petitioner's Exhibits 5-6, Respondent's Exhibits 2 g and h) In 1981, Section 340.091(1), Florida Statutes, was amended to permit the granting of concessions on the Turnpike for amusement machines which operate by the application of skill. Gladieux submitted a proposal to Respondent to install video game machines in appropriate areas under its lease. Respondent's General Counsel advised Mr. C. H. Owen, Deputy Director of Maintenance, in June, 1981, that Chapter 340, Florida Statutes, did not require competitive bidding for such a concession. Respondent's Turnpike engineer advised Owen, in November, 1981, that Gladieux's proposal to install and operate some 35 machines for a 12-month trial period at an acceptable rental fee should be accepted, and that the program should be evaluated at the expiration of the trial period. He further told Owen that if a satisfactory rental fee could not be negotiated at a satisfactory fee at the end of the one-year trial period, the operation should be offered for public bidding. Respondent and Gladieux thereafter on December 20, 1981, entered into an agreement whereby Respondent was granted the right to install and operate 35 amusement devices at individual locations to be designated by Respondent. The agreement was for one year and provided that Gladieux would pay Respondent 22.51 percent of the gross revenue from the operation of the devices, plus 4 percent tax. The agreement stated that the operation of the amusement devices was on an experimental basis and contained the statement that "Operator is currently lessee of the only space suitable for the installation of such devices and is prepared to cooperate with the department." Respondent's reason for negotiating with Gladieux was due to the fact that it "controlled" the vending machine and foyer areas under the lease, and that the video game machines were "vending" machines within the vending machine provisions of the lease. However, it was recognized that the lease provisions were originally intended only to apply to food and drink vending machines. Further, Respondent's General Counsel had opined prior to the 1981 amendment to Section 340.091(1) that a contract to install pinball machines or other electronic games on the Turnpike was specifically prohibited by that provision. Expert opinion testimony was received at the hearing that a video game machine is a "vending" machine because it is a coin-operated device that dispenses either goods or services. Although Respondent's officials were of the view that the provision of video machines was within the purview of the vending machine provisions of the lease, it entered into a separate agreement because it wanted a one-year trial period to determine the public's acceptance of the machines, and also to determine if they would be detrimental from the standpoint of congestion and noise level. Respondent preferred that the machines be located in the restaurant areas, where possible. This was a major reason for contracting with Gladieux because it controlled the restaurant areas under its lease. Another reason was that Gladieux operated the restaurants 24 hours each day and thus its personnel were always available to handle maintenance problems. (Testimony of Owen, Mizerski, Petitioner's Exhibits 11-12, Respondent's Exhibits 3-4, 8) Gladieux proceeded to place video machines pursuant to the agreement and with the approval of Respondent in the various service plazas along the Turnpike. Most were placed in the restaurant areas, but in several service plazas the machines were placed in the vending areas outside of the restaurants. (Testimony of Owen, Petitioner's Exhibits 5-6, Respondent's Exhibits 2 g and h, 9) Chambliss was aware in early 1981 that video games had been placed in several of the Turnpike service plazas, and later became aware that Respondent had a one-year experimental agreement with Gladieux. By letter of September 13, 1982, Chambliss requested that Respondent provide him the opportunity to contract for installing electronic game machines on the Turnpike. Respondent's Turnpike engineer informed him that a decision would be made in November, 1982, as to whether to eliminate or extend the current contract, but that he would be kept apprised as to the matter. Also, by letter of October 18, 1982, Gladieux requested that its agreement with Respondent be extended to the termination date of its existing restaurant lease in 1988, and pointed out that it had made a substantial investment of about $135,000 in providing the video machines and game rooms. Respondent thereafter determined that the experimental operation of video games had been successful, and advised Gladieux on November 19, 1982, that it would entertain a formal proposal to continue operation of the machines by an addendum agreement to its existing restaurant lease. (Testimony of Owen, Chambliss, Petitioner's Exhibits 1-2, 10, 13-15) Chambliss submitted a proposal to Respondent on November 29, 1982, to either compete with Gladieux for a contract to operate amusement devices at all service plazas, or to allow him to operate machines at the Pompano and Fort Pierce plazas where he held citrus shop licenses. On December 17, 1982, Respondent denied the request as being improper because of the provisions in the one-year agreement with Gladieux to extend the period for operation of machines if the one-year trial period proved successful, and also because the restaurant contract with Gladieux included all the areas in the service plazas except for citrus product shops and service stations. The letter informed Chambliss of his right to file a notice of protest within 72 hours. Chambliss proceeded to do so on December 22 and thereafter filed its petition for hearing. On December 29, 1982, Respondent and Gladieux entered into an extension to its one-year agreement to January 20, 1983, pending resolution of Chambliss' protest. However, negotiations with Gladieux are still in progress concerning the percentage of revenues to be paid by Gladieux under any subsequent amendment to its lease with regard to the video game operations. (Testimony of Owen, Chambliss, Petitioner's Exhibits 3-4, 16-20)
Recommendation It is recommended that Respondent deny the amended petition of Petitioners Florida Sunshine Parkway Citrus, Inc. and Joe A. Chambliss. DONE and ENTERED this 9th day of June, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1983. COPIES FURNISHED: Honorable Paul A. Pappas Secretary, Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Ronald C. LaFace, Esquire Jeffrey H. Abrams, Esquire 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302 Mark Linsky, Esquire Legal Department Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Philip S. Blank, Esquire Suite 320 - Lewis State Bank Building Tallahassee, Florida 32301
The Issue Whether Respondent violated Subsections 475.25(1)(b), (1)(d)1, and (1)(e), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate salesperson, issued license number 0530788 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was an involuntary inactive salesperson at 2156 Turnberry Drive, Oviedo, Florida 32764. On or about April 13, 2000, an Administrative Law Judge entered a Recommended Order finding Respondent guilty of violations of Subsections 721.11(4)(a), (h), (j), and (k), Florida Statutes (1995), by making oral misrepresentations in his sales pitch to timeshare purchasers. On or about June 15, 2000, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, issued a Final Order adopting the Findings of Fact and Conclusions of Law of the Administrative Law Judge and rejecting all of Respondent's exceptions. In the Final Order, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, ordered Respondent to cease and desist from any further violations of Chapter 721, Florida Statutes, and ordered Respondent to pay a penalty of $28,000. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes. On or about July 22, 2000, a uniform disciplinary citation was issued to Respondent for failing to notify the Florida Real Estate Commission of his current mailing address or any change of the current mailing address in violation of Rule 61J2-10.038, Florida Administrative Code. Pursuant to proper authority, the Florida Real Estate Commission penalized Respondent $100 for the violation. At the time he received the uniform disciplinary citation, Respondent was advised as follows: "You have a total of 60 days from the date this citation was served upon you to pay the fine and costs specified. This citation automatically becomes a Final Order of the board if you do not dispute this citation within 30 days of the date this citation was served upon you. As a Final Order, the fine and costs shall be due to the board within 30 days of the date of the Final Order. After this citation has become a Final Order, failure to pay the fines and costs specified constitutes a violation of a Final Order of the board and may subject you to further disciplinary action." On or about August 22, 2002, the citation became a Final Order. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Florida Real Estate Commission. Respondent had more than 20 years' experience selling timeshare units as a salesman, sales manager or sales director; he had worked in sales at various Central Florida timeshare resorts since 1979. Between July 1995 and March 1997, Respondent was employed as a salesman and sales director by Vocational Corporation, the owner/developer of Club Sevilla, a timeshare resort property. On October 24, 1995, Respondent participated in a sales presentation to Raymond and Charlene Sindel at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Sindels to purchase the timeshare: (1) the Sindels would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and/or utilize another timeshare for $79 or $99 a week 52 weeks per year; and (2) representatives of Tri Realty would sell their existing timeshare before the end of the year. On October 24, 1995, Respondent participated in a sales presentation to Clarence and Maxine Shelt at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statement which induced the Shelts to purchase the timeshare: the Shelts would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and or utilize another timeshare for $79 a week 52 weeks per year. On June 26, 1996, Respondent participated in a sales presentation to Eugene and Mildred Plotkin and their son, Daniel, at Club Sevilla, which resulted in the purchase by Eugene and Mildred Plotkin of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Plotkins to purchase the timeshare: (1) a timeshare owned by the Plotkins in Las Vegas, Nevada, would be sold within two months; (2) the Plotkins would receive a low-interest credit card with which they would finance the purchase of the Club Sevilla timeshare and that their Las Vegas timeshare would be sold quickly enough that they would not have to pay any interest on the credit card; and (3) the Plotkins would become members of Interval International, a timeshare exchange program, in which they could utilize another timeshare anywhere for $149 a week. On July 26, 1996, Respondent participated in a sales presentation to Robert and Susan Bailey at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Baileys to purchase the timeshare: (1) they would receive a low-interest credit card within ten days with a $20,000 credit limit with which they could finance the timeshare purchase; and (2) the Baileys would receive a prepaid 52-week membership in Interval International, a timeshare exchange program. In September 1996, Respondent participated in a sales presentation to Thomas and Betty Prussak at Club Sevilla, which resulted in the purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Prussaks to purchase the timeshare: (1) timeshares owned by the Prussaks in Westgate and Club Sevilla were valued at $12,000 each and that these timeshare units would be sold if the Prussaks purchased a new timeshare unit at Club Sevilla; (2) that the new Club Sevilla timeshare unit would be a "floating" unit (could be used anytime); and (3) that the new Club Sevilla timeshare would be rented and that the Prussaks or their daughter would be able to take "getaway" weeks and stay at any RCI timeshare for $149 per week. On December 11, 1996, Respondent participated in a sales presentation to Larry and Carla Eshleman at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Eshlemans to purchase the timeshare: (1) the Eshlemans would receive a low-interest credit card with which they could finance the timeshare purchase; (2) the Eshlemans would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and utilize another timeshare for $149 a week; and (3) the timeshare the Eshlemans owned prior to their purchase of the Club Sevilla timeshare would be sold in three months or would be rented for $1,650 per week.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding that Respondent violated Subsections 475.25(1)(b) and (e), Florida Statutes, and that Respondent's license as a real estate salesperson be revoked, that he be fined $2,000 and be required to pay the costs of the investigation and prosecution of the case. DONE AND ENTERED this 3rd day of December, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 3rd day of December, 2002. COPIES FURNISHED: Christopher J. Decosta, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Hurston Building, North Tower Orlando, Florida 32801 William S. Walsh 13079 South Taylor Creek Road Christmas, Florida 32709 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Buddy Johnson, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Nancy P. Campiglia, Chief Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
