The Issue The issue in these cases is whether the Santa Rosa County comprehensive plan, as adopted on September 27, 1990, and the remedial amendments adopted on April 22, 1993, are in compliance.
Findings Of Fact Exception #2. The Hearing Officer, in an October 15, 1993 order, determined that the issues in the consolidated cases would be those 13 issues stated in the petition filed on July 15, 1993, in Case No. 93-4980, which ruling was observed by the parties at the final hearing (RO page 3). Petitioners/Intervenors take issue, thus, "At no time during these proceedings did the Petitioners abandon the issues raised in their Petitions to Intervene filed in the original noncompliance proceeding." The Respondent County and the Petitioner/Respondent Department take the position that the original, noncompliance proceeding was extinguished when the Department issued its cumulative notice of intent pursuant to section 163.3184(16), Florida statutes. The County and the Department further disagree with the Hearing Officer's conclusion of law determining that the issues of public access and Navarre Beach dune system should be determined pursuant to the preponderance of the evidence standard in section 163.3184(10), Florida statutes. The County and the Department urge the Agency to enter its order addressing all issues accordingly. Subsection (9) of section 163.3184, Florida statutes, governs proceedings if the local plan or amendment is in compliance. In the words of the statute, "In this proceeding, the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Subsection (10) of section 163.3184, Florida statutes, governs proceedings if the plan or amendment is determined to be not in compliance. The statute specifies, in this subsection: In the proceeding, the local government's determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance. Subsection (16) of section 163.3184, Florida statutes, authorizes the Department of Community Affairs to enter into voluntary compliance agreements to resolve issues raised in proceedings initiated pursuant either to subsection (9) -- in compliance determinations -- or subsection (10) -- not in compliance determinations. It is under this subsection that the cumulative notice in this case was issued. Paragraph (f) of subsection (16) provides, in part, as follows: If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings and the pending s. 120.57 proceeding concerning the plan or plan amendment shall be dismissed by the hearing officer as to the department. Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9). The language of the statute is somewhat problematic. It is unclear how a proceeding can be dismissed as to one of the parties, in this case, the state land planning agency issuing the notice of intent. See Department of Community Affairs, et al. v. DeSoto County, Final Order No. AC-94-009 (Fla. Admin. Comm. January 31, 1994), approving, Recommended Order of Dismissal, DOAH Case No. 91- 6039GM (DOAH January 13, 1994)(approving interpretation of statute). Further, this statutory language as to dismissal of the proceeding as to the department arguably is at odds with the next sentence, which states that affected persons may challenge the plan or amendment which is the subject of the cumulative notice by filing a petition with the agency as subsection (9) provides. The statutory language does not say, "Any other affected person" may challenge; it says "Any affected person" may challenge, which ending s. 120.57 proceeding. Paragraph (f) also deals with the issue of a cumulative notice that the plan amendment is not in compliance, as follows: If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment not in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings, which shall consolidate the proceeding with the pending proceeding and immediately set a date for hearing in the pending s. 120.57 proceeding. It is clear from that statutory language that the cumulative notice proceeding is consolidated with the pending original proceeding if the Department of Community Affairs finds the amendment not in compliance, in contrast to the language used if the Department's cumulative notice is an "in compliance" determination. Finally, paragraph (f) deals with persons who are not parties to the pending original proceeding, as follows: Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10). This language seems to do more than provide for persons who are not parties to the underlying proceeding to file subsection (9) or subsection (10) petitions depending upon whether the cumulative notice is an "in compliance" one or a "not in compliance" one, as the case may be. The language also aids in interpreting the previous sentence of the paragraph, "Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9)." If that sentence were only intended to apply to affected persons who were not parties to the underlying proceeding, there would be no need for the sentence above-quoted, "Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10)." As the state land planning agency and the Agency of final jurisdiction in an "in compliance" proceeding, it is the responsibility of the Department of Community Affairs to interpret the operable statute. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985.) The Department of Community Affairs interprets the subject provisions of section 163.3184(16), Florida statutes, to mean that, if the Department issues a cumulative notice of "in compliance," the previously existing, original proceeding is extinguished. Thereafter, all affected parties must file petitions challenging the cumulative notice, and the proceeding is governed exclusively by the "fairly debatable" standard and the procedures set out in subsection (9) of section 163.3184, Florida statutes. The particular standard of proof to be applied is based upon the issuance of a notice of intent to find the plan or amendment in compliance or not in compliance. Sheridan v. Lee County, DOAH Case No. 90-7791GM, Final Order No. DCA93-158- FOF-CP (Department of Community Affairs, June 28, 1993). In Department of Community Affairs, et al. v. City of Jacksonville, DOAH Case No. 90-7496GM (January 24, 1994), Final Order No. DCA94-258-FOF-CP (Department of Community Affairs, February 24, 1994), the Department of Community Affairs expressly adopted the interpretation of Hearing Officer J. Lawrence Johnston as set forth in the Recommended Order of Dismissal and Final Order Closing File in the case of Department of Community Affairs v. DeSoto County, DOAH Case No. 91-6039GM (January 19, 1993), approved, Final Order No. AC-94-990 (Fla. Admin. Comm. January 31, 1994), a copy of which is attached hereto as Exhibit B and incorporated by reference. That recommended order at footnote 3 -- recognized that there is contrary dicta in the Recommended Order in Department of Community Affairs, et al. v. Hillsborough County, DOAH Case No. 89-5157GM (December 8, 1992). In the instant case, the Hearing Officer erred in treating the proceeding as one in which both subsections (9) and (10) of section 163.3184, Florida statutes, continued to apply. The burdens of proof -- whether the fairly debatable standard, or the preponderance of the evidence standard -- could be alternatively assigned to a given issue, depending upon whether the issue remained from the original proceeding, or arose as a result of the proceeding brought in response to the cumulative notice. But the statute does not appear to allow the proceeding to be resolved as it was in the instant case, i.e., under both subsections (9) and subsections (10). If that were the case, it would be unclear in a given case as to which entity appropriately should enter the final order, the Administration Commission, or the Department of Community Affairs. Clearly, that does not comport with the objective of the Legislature in specifying the entities with final order authority separately in subsections (9) and (10). Petitioners/Intervenors suggest, in Exception #34, which is dealt with below, that both the Administration Commission and the Department of Community Affairs enter a final order in this. This would result in untenable situations, such as the potential for inconsistent rulings, separate appeals, etc. The Hearing Officer should have treated the proceeding exclusively as one arising as a result of a cumulative notice of "in compliance" governed under the auspices of subsection (9) of section 163.3184, Florida statutes. In that case, the issues should have been those directed to the cumulative notice; thus, Petitioners/Intervenors' complaint in this exception -- that the Hearing Officer should not have limited the issues to those set forth in the July 15, 1993 petition, which was filed as a result of the cumulative notice -- is not well- taken. Further, the standard of proof in a proceeding brought following a cumulative notice of "in compliance" must be the "fairly debatable" standard of section 163.3184(9), Florida Statutes. In this case, however, the Hearing Officer made his various determinations and weighed the evidence with respect either to the fairly debatable standard, or to the preponderance of evidence standard, depending upon the issue. It would be implausible at best, impossible at worst, for the Agency now to attempt to reweigh the selected issues -- those that have been determined using the preponderance of the evidence standard -- under the fairly debatable standard. The Department of Community Affairs, as the Agency entering the Final Order in this cause, is not free to reweigh evidence; that is the prerogative of the Hearing Officer when there are factual issues of ordinary proof. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Moreover, such a reweighing of the issues, even if authorized, would not change the outcome. The issues that were decided under the preponderance of the evidence standard were decided against the Petitioners/Intervenors in this case. The outcome would not change if the fairly debatable standard were applied to those issues. The Agency therefore declines the invitation to apply the fairly debatable standard throughout the proceeding, as it should have been done by the Hearing Officer. Nonetheless, the Agency also must deny Petitioners/Intervenors' Exception #2. PETITIONERS/INTERVENORS EXCEPTION #2 is DENIED. Exception #3. This exception is directed to the Hearing Officer's exclusion of testimony regarding Petitioners/Intervenors' allegations of "urban sprawl." Petitioners/Intervenors assert that a cursory review of the subject petition reveals that "urban sprawl" was properly raised as an issue, even though that precise term was not used. The Hearing Officer heard argument directed to the issue of the "urban sprawl" question (TR Vol. I, pp. 12-18) and determined that it was not within the scope of the petition filed on July 15, 1993 (see Exception #2, above). The Agency has reviewed the subject petition and the portions of the record dealing with argument directed to this issue, and the Agency does not find a sufficient basis for granting the exception. PETITIONERS/INTERVENORS EXCEPTION #3 IS DENIED. Exceptions #4, #5 and #6. The basis for these exceptions is the Hearing Officer's finding of fact, in paragraph 13 of the Recommended Order, that publicly-owned lands in the Garcon Point Project would not be injured by the development of privately- owned lands north of the project. According to the Petitioners/Intervenors, "The evidence introduced at the administrative hearing clearly refutes this finding." Petitioners/Intervenors allude to witness testimony that contradicts the conclusion of the expert who was tendered in general ecology and natural systems, Dr. Joe A. Edmisten [TR Vol. III, pages 78-87] on this point at hearing; it is upon Dr. Edmisten's testimony that the paragraph is supported. The contradictions notwithstanding, however, the paragraph to which these exceptions are directed is supported by competent, substantial evidence in the record, and thus the exceptions must be denied. [Edmisten (TR Vol. III), pages 95-96.] PETITIONERS/INTERVENORS' EXCEPTIONS #4, #5, AND 6 are DENIED. Exception #7. This exception is directed to paragraph 14 of the Recommended Order, in which the Hearing Officer found, "More than 95 percent of Garcon peninsula is jurisdictional wetland for the U.S. Army Corps of Engineers . . . ." According to the Petitioners/Intervenors, no evidence was introduced to support this finding. There is competent, substantial evidence in the record sufficient to support the finding. [Edmisten (TR Vol. III), page 89.] PETITIONERS/INTERVENORS' EXCEPTION #7 is DENIED. Exception #8. In Exception #8, Petitioners/Intervenors take exception to the following finding of fact in paragraph 15 of the Recommended Order, "Little development will occur on the Garcon peninsula . . ." The Petitioners/Intervenors assert that the evidence at the hearing "clearly refutes this finding" and, in support thereof, refer to Future Land Use Map indications of densities of up to four dwelling units per acre and commercial development for Garcon peninsula. The finding is supported by competent, substantial evidence in the record. [Edmisten (TR Vol. III), pages 90-91.] PETITIONERS/INTERVENORS EXCEPTION #8 is DENIED. Exception #9. Petitioners/Intervenors take exception to the findings of fact of paragraph 20 of the Recommended Order, which relates to the condition of the Navarre Beach dune system and the testimony of the expert in coastal geomorphology. The apparent basis for the exception is stated by Petitioners/Intervenors thus, "The fact that the Navarre Beach dune system is still a valuable resource is a compelling reason for implementing a dune protection program which will ensure the system's long-term viability." A finding of fact cannot be overturned on the basis of the argument stated by the Petitioners/Intervenors. Moreover, the findings of fact in paragraph 20 are supported by competent, substantial evidence. [Stone (TR Vol. II), page 155.] PETITIONERS/INTERVENORS' EXCEPTION #9 is DENIED. Exception #10. The Petitioners/Intervenors take exception to paragraph 26 of the Recommended Order wherein the Hearing Officer finds, "The County maintains control over those beach access points shown on the Navarre Beach Future Land Use Map by maintaining them in an unleashed status." The Petitioners/Intervenors state that the evidence clearly refutes the finding, and that the Navarre Beach Future Land Use Map does not identify beach access points. The finding is based upon sufficient competent, substantial evidence of record, and must be sustained. (Miller [TR Vol. I), pages 166-167; Joint Exhibit 1, Plan Objective 11.A.9, and policies 11.A.9.1-9.S, pages 11-6 through 11-7.] PETITIONERS/INTERVENORS' EXCEPTION #10 is DENIED. Exception #11. Petitioners/Intervenors take exception to paragraph 30 wherein the Hearing Officer states that the expert of the Petitioners/Intervenors "did not critique the plan, but said it was laudable." The Petitioners/Intervenors assert in this exception that the evidence clearly refutes this finding in that the expert in question, Dr. Sneed B. Collard, criticized the Santa Rosa County Comprehensive Plan for failing to contain policies and objectives to implement the plan's goal to protect the Pensacola Bay system. The context in which the Hearing Officer made the statement to which exception is taken is important to an understanding of the finding. paragraph 30 of the Recommended Order, in its entirety, reads as follows: Petitioners' expert also admitted that the plan was laudable in terms of the manner in which it seeks to protect the Bay system. While he criticized the plan for not containing clear implementation of its noteworthy goals, he later admitted that if all points of implementation were covered in detail, the plan would become a lengthy and cumbersome document of a more scientific nature. He further admitted to being unaware of the appropriate level of detail for a comprehensive plan and later stated that he did not critique the plan, but said it was laudable. [FF 30; RO page 14.] That having been clarified, the specific statement to which Petitioners/Intervenors take this exception is supported by competent, substantial evidence of record, to wit, the testimony of Dr. Collard, "I didn't critique the Santa Rosa Plan. I said it was laudable." [Collard (TR Vol. I), page 140]. PETITIONERS/INTERVENORS' EXCEPTION #11 is DENIED. Exception #12. The Petitioners/Intervenors take exception to the finding in paragraph 31 of the Recommended Order that finds "that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers." The Petitioners/Intervenors take this exception based on relevancy. The context of the statement is not clear from the exception. The entirety of paragraph 31 reads as follows: Although petitioners raised the bridge as an issue in these cases, very little evidence was presented concerning the potential impacts of the proposed bridge. It is noted, however, that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers. It is clear from the context that the information was "noted" and not accorded great weight in the findings. Moreover, the Hearing Officer's inclusion of the information was not erroneous. Thus, there is an insufficient basis to grant the exception. PETITIONERS/INTERVENORS' EXCEPTION #12 is DENIED. Exception #13. Petitioners/Intervenors take exception to the findings of fact contained in paragraphs 37-54 of the Recommended Order, as follows: The Hearing Officer failed to consider or give any ruling with respect to the proposed findings of fact set forth at paragraphs 9-28 and the conclusions of law set forth at paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed Recommended Order. indeed, the Hearing Officer utterly failed to even mention the Wet Prairies and their associated endangered and threatened species. As to the proposed findings of fact included in paragraphs 9-28 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did so rule, "[paragraphs] 7-34. Partially accepted in findings of fact 10-15 and 37- 54." [RO page 38.] As to paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did not make explicit rulings. The subject paragraphs were conclusions of law, which the Hearing Officer is not required to address. In pertinent part, section 120.59(2), Florida Statutes, provides, "If . . a party submitted proposed findings of fact . . . in connection with the proceeding, the order must include a ruling upon each proposed finding . ." It was thus within the sound discretion of the hearing officer to rule only upon the Petitioners/Intervenors' findings of fact. PETITIONERS/INTERVENORS' EXCEPTION #13 is DENIED. Exception #14. Petitioners/Intervenors take exception to the Hearing Officer's finding in paragraph 40 of the Recommended Order that states, "The plan contains extensive provisions designed to implement the Wetlands FLUM (Future Land Use Map) and provide significant protection of wetlands and the natural resource functions of wetlands." The Petitioners/Intervenors assert that no evidence was introduced to support this finding. The finding is based upon competent, substantial evidence, and therefore the exception cannot be granted. [Joint Exhibits 3 and 4, Plan Policies 11.A.4.5 (fig. 7-30); 11.B.3.3; 11.A.1.8.a.b.; 11.A.1.8.c.; 11.A.1.7; 11.A.4.3; 11.B.3.3; 11.A.2.1; 11.B.3.1.; 11.B.3.6; 11.A.1.4; and 11.A.1.8.] PETITIONERS/INTERVENORS' EXCEPTION #14 is DENIED. Exception #15. The basis for this exception is the finding of fact in paragraph 49 of the Recommended Order wherein it is found that the Santa Rosa County Comprehensive Plan "grants only very limited development rights in the Garcon Peninsula region, while also providing significant protections for natural resources in that area." Petitioners/Intervenors assert that the evidence refutes this finding. The finding is based on competent, substantial evidence in the record. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #15 is DENIED. Exception #16 and #17. In Exceptions #16 and #17, Petitioners/Intervenors take exception to paragraph 50 of the Recommended Order. In that paragraph, the Hearing Officer finds that, short of public acquisition, "no other reasonable method by which this area can be comprehensively protected and preserved as an intact ecological unit was presented." The Hearing officer further finds, "Requiring the County to reduce densities to the point where a moratorium on development in the area is created would create inverse condemnation . . Petitioners/Intervenors state that the evidence clearly refutes these findings, that evidence was presented that one dwelling unit per 40 acres was appropriate for the Garcon peninsula, and that designations of up to four units per acre and commercial development would completely destroy the unique ecology of Garcon peninsula. Further, the Petitioners/Intervenors assert that the issue of inverse condemnation was not supported by competent evidence introduced, and that densities of less than four dwelling units per acre can be implemented without creating an "inverse condemnation" situation. As to the reasonableness of the preservation effort, the Agency has reviewed the testimony as to that point, and concludes that the finding is within the allowable inferences from the evidence presented, and within the permissible prerogatives of the Hearing Officer. [Dorman (Vol. III), page 13.] The inverse condemnation finding is rejected as being legally incorrect, but this rejection is irrelevant as to the result because it is cumulative in nature. PETITIONERS/INTERVENORS" EXCEPTIONS #16 and #17 are DENIED. Exception #18. This exception is directed to the finding of fact in paragraph 51 which states that "the great majority of undeveloped areas on the Garcon peninsula currently fall within the wetlands permitting jurisdiction of DEP [Department of Environmental protection] and the federal government. As a consequence, permits for development will be difficult to obtain at best." Petitioners/Intervenors aver that there was no evidence introduced to support this finding. To the contrary, however, the finding is adequately supported by competent, substantial evidence. [Edmisten (Vol. III), pages 90-91.] PETITIONERS/INTERVENORS' EXCEPTION #18 is DENIED. Exception #19. In Exception #19, Petitioners/Intervenors take exception to the finding of fact in paragraph 52 of the Recommended Order, in which it is stated that the Petitioners/Intervenors "failed to prove to the exclusion of fair debate that the plan inappropriately treats wetlands and wildlife habitat on the Garcon peninsula in light of chapter 163 requirements." This is a permissible inference from the evidence presented, both from testimony adduced at hearing, and from the Santa Rosa County Comprehensive Plan itself. PETITIONERS/INTERVENORS' EXCEPTION #19 is DENIED. Exception #20. This exception takes issue with the findings of fact of paragraphs 55-63 of the Recommended Order because the Hearing Officer "failed to consider or give any ruling" on the proposed conclusions of law in the Petitioners/Intervenors' proposed recommended order at paragraphs 142 and 143. The Hearing Officer is not required to do so for the reasons more specifically set forth in disposing of Exception #13, above. PETITIONERS/INTERVENORS' EXCEPTION #20 is DENIED. Exception #21. In Exception #21, Petitioners/Intervenors take exception to the findings of fact of paragraphs 64-70 of the Recommended Order in that the Hearing Officer "failed to consider or give any ruling" on Petitioners/Intervenors' proposed findings of fact at paragraphs 41 and 54-56 of their proposed recommended order, as well as their conclusions of law at paragraphs 112-118 and 121-126 of the same. As to the findings of fact, the Hearing Officer made such rulings, "[paragraphs] 35-56. Partially accepted in findings of fact 16-20 and 64-70." [RO page 38.] As to the conclusions of law, that issue has been addressed above in disposing of Exception #13, as also applied in disposing of Exception #20. PETITIONERS/INTERVENORS' EXCEPTION #21 is DENIED. Exception #22. Petitioners/Intervenors ground this exception on the failure of evidence to support the finding of fact, in paragraph 64 of the Recommended Order, that the Santa Rosa County Comprehensive Plan requires "restoration of preexisting impacts of altered dunes . . The finding is based upon competent, substantial evidence, and therefore the exception must be denied. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #22 is DENIED. Exception #23. Petitioners/Intervenors take exception to the finding of fact in paragraph 69 for the following reasons: The Hearing Officer found that the dune system was protected because the County encourages dune walkovers, sand fences, and other similar methods. The evidence introduced at the administrative hearing clearly refutes this finding. Without a mandatory program of providing such methods to protect the dune system from pedestrian traffic, the plan's alleged protection is illusory. This finding is based upon competent, substantial evidence of record. [Joint Exhibits 3 and 4; Plan Policies 7.A.6.3 and 11.A.1.3.] PETITIONERS/INTERVENORS' EXCEPTION #23 is DENIED. Exception #24. Petitioners/Intervenors base this exception on the finding of fact in paragraph 70 of the Recommended Order wherein the Petitioners/Intervenors assert that the Hearing Officer finds that the Petitioners/Intervenors failed, in the words of the filed exception: "to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan" does not fulfill the Chapter 163 and Rule 9J-5 requirements for protection of the Navarre Beach dune system. The testimony of Dr. Stone clearly refutes this finding. In point of fact, that is not an appropriate paraphrase of the wording of the finding of fact in paragraph 70. The finding of fact, verbatim, is as follows: [P]etitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not contain policies which are designed to prevent individual and cumulative impacts of development on beach and dune systems. The finding is a permissible conclusion from the evidence adduced at the hearing, and is based upon competent, substantial evidence. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #24 is DENIED. Exception #25. Petitioners/Intervenors take exception to the findings of paragraphs 74-76 of the Recommended Order based upon the failure of the Hearing Officer to consider or rule on conclusions of law contained in paragraphs 128- 132 of the Petitioners/Intervenor's proposed recommended order. As specified in the disposition of Exception #13, above, and as carried forth in the disposition of Exceptions #20 and #21, above, the exception is denied. PETITIONERS/INTERVENORS, EXCEPTION #25 is DENIED. Exceptions #26, #27, and #28. These exceptions are directed to paragraph 75 of the Recommended Order. The findings of the paragraph that are the basis for the exception include the following: The record does not reflect impacts, if any, the project may have to the environment, but does indicate that adequate mitigation is proposed. The County cannot legally adopt any plan provisions which are inconsistent with a state transportation project. . [P]etitioners have failed to show to the exclusion of fair debate that the plan's treatment of the proposed Santa Rosa Bay Bridge is inappropriate. The findings are supported by competent, substantial evidence. [Edmisten (TR Vol. III); Joint Exhibit 2, Vol. I, pages 4-32 through 4-40.] Exceptions #27 and #28 are simply argument of the Petitioners/Intervenors' position in this proceeding and, as such, are insufficient to overturn findings supported by competent, substantial evidence. PETITIONERS/INTERVENORS' EXCEPTIONS #26, #27, and #28 are DENIED. Exception #29. This exception is directed to paragraphs 77-79 of the Recommended Order, alleged to be in error because the Hearing Officer failed to consider or rule on the conclusions of law in Petitioners/Intervenors' paragraphs 133-140 of their proposed recommended order. As more specifically discussed in disposing of Exception #13, and as concluded in the denials of Exceptions #20, #21, and #25, the Hearing Officer is not required to make such rulings. PETITIONERS/INTERVENORS' EXCEPTION #29 is DENIED. Exceptions #30, #31 and #32. In these exceptions, Petitioners/Intervenors assert that there was no evidence introduced to support the findings, in paragraph 77-79 of the Recommended Order, concerning beach access points. In paragraph 77, Petitioners/Intervenors take exception to the finding that reads, "The plan contains a number of provisions designed to ensure the continued availability of beach access. The future land use map indicates a number of beach access points shown on the map as conservation/recreation." In support of this exception, Petitioners/Intervenors state, "Indeed, during cross examination of Ms. Miller by the County, counsel for the County attacked Ms. Miller for stating that the beach access points were identified on the Navarre Beach Future Land Use Map." In response, Respondent County and Petitioner/Respondent Department state: The Petitioners' own witness, Yvonne Miller, testified that beach access points were indicated on the FLUM. [Citation omitted.] The fact that counsel for the County obtained clarification from Ms. Miller concerning her understanding of how access points were identified on the map is irrelevant to the validity of this finding of fact, and is not a basis for overturning same. As to paragraph 78, Petitioners/Intervenors take exception to the finding that reads that "petitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not include appropriate objectives and policies concerning public access to the beach." In response, Respondent County and Petitioner/Respondent Department state, "The plan support documents include extensive data and analysis concerning public access to beaches." With respect to paragraph 79, Petitioners/Intervenors take exception to the finding that the Future Land Use Map includes many public access points. The Agency has reviewed the testimony adduced at hearing regarding beach access points [Miller (TR Vol. 1), pages 150- 169]. The Hearing Officer's conclusions drawn from the testimonial evidence are within the allowable range of inferences. Based upon the record testimony, the findings of fact in paragraphs 77-79 to which exceptions are taken is based upon competent, substantial evidence in the record. [Miller (TR Vol. 1), pages 150-169; Joint Exhibit 2, Vol. II, pages 7-17 through 7-19; Joint Exhibit 7.] PETITIONERS/INTERVENORS' EXCEPTIONS #30, #31, and #32 are DENIED. EXCEPTIONS TO CONCLUSIONS OF LAW Exception #33. Petitioners/Intervenors take exception to the conclusion of law in paragraph 87 of the Recommended Order wherein the Hearing Officer concluded that the petitions challenging the plan must fail. Petitioners/Intervenors assert that they have met their burden of proof, and their petition must be granted. The Hearing Officer found that the Petitioners/Intervenors failed to meet their burden of proof. The conclusion of law ultimately was based upon the Hearing Officer's findings of fact in this case. Factual issues susceptible of ordinary methods of proof are the prerogative of the hearing officer. Heifetz v. Department 6f Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). It is for the hearing officer to consider the evidence presented, resolve conflicts, judge credibility of witness, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. Id., 475 So.2d at 1281. In this case, the Hearing Officer did so, and his findings of fact did not support the position of the Petitioners/Intervenors. The conclusion of law was the logical result of the Hearing Officer's permissible rulings on the findings of fact. PETITIONERS/INTERVENORS' EXCEPTION #33 is DENIED. Exception #34. Petitioners/Intervenors take exception to the conclusion of law in paragraph 90 of the Recommended Order wherein the Hearing Officer recommends that the Department of Community Affairs enter the final order in this cause, finding the Santa Rosa County Comprehensive Plan in compliance. Petitioners/Intervenors assert that both the Department of Community Affairs and the Administration Commission should enter a final order finding the plan to be not in compliance. For the reasons set out in disposing of Petitioners/Intervenors' Exceptions #1 and #2, above, the Administration Commission is not the entity to whom the Recommended Order in this cause should be directed. The Department of Community Affairs is the appropriate Agency to enter the final order in this cause. As to the issue of compliance, the Department found the plan, as amended, to be in compliance; the Hearing Officer heard evidence and considered the issues, and found the plan, as amended, to be in compliance. The conclusion is the logical and ultimate result of the findings of fact in this case, which were based upon competent, substantial evidence. The Petitioners/Intervenors have not borne their burden of proving that the plan, as amended by remedial amendments, is not in compliance. PETITIONERS/INTERVENORS' EXCEPTION #34 is DENIED. WHEREFORE, the Department of Community Affairs adopts the Recommended Order of the Hearing Officer, and issues this Final Order determining that the Santa Rosa County Comprehensive Plan, as amended, is in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Department of Community Affairs enter a final order determining the Santa Rosa County comprehensive plan, as amended, to be in compliance. DONE AND ENTERED this 12th day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1994. Petitioners: APPENDIX TO RECOMMENDED ORDER CASE NOS. 90-7706GM AND 93-4980GM 1-3. Partially accepted in finding of fact 2. 4. Covered in preliminary statement. 5-6. Partially accepted in finding of fact 1. 7-34. Partially accepted in findings of fact 10-15 and 37-54. Partially accepted in finding of fact 9. 36-56. Partially accepted in findings of fact 16-20 and 64-70. 57-65. Partially accepted in findings of fact 31-36 and 74-76. 66-77. Partially accepted in findings of fact 24-26 and 77-79. 78-83. Partially accepted in findings of fact 27-30 and 55-63. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues. Respondents: Because respondents' joint proposed order exceeded the forty page limit imposed by Rule 60Q-2.031, Florida Administrative Code, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding. See Sunrise Community, Inc. v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993). COPIES FURNISHED: Linda Loomis Shelly, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie M. Callahan, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 Thomas V. Dannheisser, Esquire County Attorney Santa Rosa County Courthouse Room 106 Milton, FL 32570 Kenneth G. Oertel, Esquire Post Office Box 6507 Tallahassee, FL 32314-6507 David A. Theriaque, Esquire Building F, Suite 100 820 East Park Avenue Tallahassee, FL 32301 Mr. Robert Carl 9277 Deer Lane Navarre, FL 32566 John M. Harold, Esquire J. Dan Gilmore, Esquire 4400 Bayou Boulevard, Suite 45 Pensacola, FL 32503
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. Filed April 15, 2011 2:00 PM Division of Administrative Hearings FINAL ORDER NO. DCA 11-GM-067
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-067 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this AV day of April, 2011. Paula Ford Agency Clerk By Inter-Agency Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, FL 33712 TWReeseEsq@aol.com Steven T. Williams, Esquire Office of the County Attorney Harmon Turner Bldg, 8th Floor 3301 East Tamiami Trail Naples, FL 34112 StevenWilliams@colliergov.net Richard D. Yovanovich, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300 Naples FL 34103 ryovanovich@cyklawfirm.com FINAL ORDER NO. DCA 11~GM-067 Michael A. Durant, Esquire Conroy, Conroy & Durant, P.A. 2210 Vanderbuilt Beach Road, Suite 1201 Naples, FL 34109 mdurant@ccdlegal.com Lynette Norr, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette .Norr@dca.state.fl.us
The Issue Whether Application #01109-L and Application #01109-J for a public water supply system to serve approximately 17,500 acres of land in Lee County, Florida, should be granted and a permit issued by the South Florida Water Management District.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that a water use permit be issued to the applicant pursuant to Applications #01109-J and #01109-L for a total annual allocation of 1.64 BGY for ten (10) years subject to the thirty-one (31) limiting conditions attached to the "Florida Cities Water Company" report, which report is a part of the record of this case. DONE and ORDERED this 18th day of January, 1980, in Tallahassee, Leon County Florida. DELPHENE C. STRICKLAND 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 18th day of January, 1980. COPIES FURNISHED: Stephen A. Walker, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Ross A. McVoy, Esquire 318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302 Terry F. Lenick, Esquire Assistant County Attorney County of Lee Post Office Box 398 Fort Myers, Florida 33902 =================================================================
The Issue The issue in this case is whether Respondent, the Department of Environmental Protection, violated the Florida Civil Rights Act of 1992 as alleged in a Petition for Relief filed by Petitioner, Edwin R. Bollinger, with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Edwin R. Bollinger, is a Caucasian male, born March 18, 1936. At the time of the alleged unlawful employment practice at issue in this case, Mr. Bollinger was 58 to 59 years of age. Mr. Bollinger was employed by the State of Florida from at least 1982 until his termination in May 1995. At all times relevant to this matter, Mr. Bollinger was employed by Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), or, prior to its absorption into the Department, the Department of Natural Resources. Prior to July 1994 Mr. Bollinger served as a park officer in the Florida Park Service of the Department. Mr. Bollinger was stationed at Bill Baggs Cape Florida State Recreation Area located in Dade County, Florida. Two other park officers were working with Mr. Bollinger in July 1994: Antonio Sanchez and Kathy Martinez. Effective July 1, 1994, all Florida Park Service officers were reclassified as law enforcement officers and were transferred to the Department's Division of Law Enforcement (hereinafter referred to as the "Division"). The position of park officer was abolished. Colonel Mickey Watson was the Director of the Division at all times relevant to this matter. Captain Carl Nielsen, Mr. Bollinger's immediate supervisor, met with Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on July 1, 1994, to swear them in as law enforcement officers within the Division. Captain Nielsen explained the nature of the new positions to the three officers, gave them a copy of the position description for the positions, and gave them new manuals. In particular, Captain Nielsen explained that the new positions would require the enforcement of the laws and rules that governed the parks on a full-time basis and the devotion of their efforts to full-time law enforcement. On February 3, 1995, Captain Nielsen placed Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on performance improvement plans (hereinafter referred to as "PIPs") because of deficiencies in their performance since their reclassification. Ms. Martinez and Mr. Sanchez successfully completed their PIPs. On May 10, 1995, Mr. Bollinger was dismissed from his position with the Department for failure to perform his duties satisfactorily. The dismissal was recommended by Captain Nielsen and approved by Colonel Watson. Mr. Bollinger was 59 years of age at the time of his dismissal. Colonel Watson, Captain Nielsen, and Mr. Sanchez were in excess of 40 years of age at the time of Mr. Bollinger's dismissal. Ms. Martinez was less than 40 years of age at the time of Mr. Bollinger's dismissal. Mr. Bollinger challenged his dismissal before the Public Employees Relations Commission (hereinafter referred to as "PERC"). On June 22 and 23, 1995, and July 5, 1995, a hearing was conducted by a PERC Hearing Officer. A Recommended Order was entered on August 2, 1995, finding that just cause existed for Mr. Bollinger's dismissal. The Recommended Order included the following conclusion: In conclusion, the Agency has proven by a preponderance of the evidence that Bollinger did not meet his performance standards, after he was informed of the deficiencies, given assistance in improving the deficiencies, and had an amply opportunity to improve his deficiencies. See Croce v. Department of Corrections, 3 FCSR 239 (1988), affirmed, 553 So.2d 1181 (Fla. 4th DCA 1989)(unsatisfactory performance on one or few job duties which are critical factors for the effective functioning of an agency can support discipline for unsatisfactory performance). Thus, Bollinger's unsatisfactory performance of his duties supports just cause for discipline. Page 19, Respondent's Exhibit 1. The Recommended Order was subsequently adopted by PERC by Final Order entered on or about January 23, 1996. The evidence failed to prove that Mr. Bollinger's age played any role in his dismissal by the Department. In June of 1990 Mr. Bollinger underwent extensive surgery on his right shoulder, chest, and neck due to squamous cell carcinoma right parotid gland. Mr. Bollinger returned to work on November 12, 1990. Although the following description of the results of Mr. Bollinger's initial and subsequent surgery was written after Mr. Bollinger's termination from employment with the Department, it adequately describes his condition during the times relevant to this proceeding: This produced a deformity of the chest wall as well as more deformity of the supraclavicular area of the right side of his neck as well as a large scar in that area. The surgery included dissection of the facial nerve which was not completely successful because of the entanglement of the tumor around the nerve. [Mr. Bollinger] was left with a facial nerve palsy. He also complains of some loss of hearing, loss of motion of the shoulder and loss of motion of his neck. Petitioner's Exhibit 11. After returning to work after his surgery, Mr. Bollinger informed his immediate supervisor that he could perform his responsibilities without limitation but requested that he be permitted time to switch his firearm qualification from his right hand to his left hand. He also made informal requests for reduced beach patrol, foot patrol, and water patrol so that he could minimize his exposure to the sun. The evidence failed to prove that these informal requests were not granted. Mr. Bollinger did not inform Captain Nielsen that his physical condition would in any way prevent him from satisfying the PIP imposed on him by Captain Nielsen prior to his dismissal. Mr. Bollinger also did not make any request to the Department for any accommodation for his physical condition other than noted, supra. Despite the consequences of the surgery performed on Mr. Bollinger, he continued to carry out his duties with the Department from 1990 to 1994 when he was discharged for reasons unrelated to his medical condition. The evidence failed to prove that Mr. Bollinger's disability played any role in his dismissal by the Department. The evidence failed to prove that the Department's actions were a pretext for discrimination based upon Mr. Bollinger's age or disability. There was no evidence that the Department's dismissal of Mr. Bollinger was grounded on discriminatory animus or that discriminatory reason motivated the Department in its actions toward Mr. Bollinger.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding that Edwin R. Bollinger failed to prove that the Department of Environmental Protection committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes (1995), and dismissing, with prejudice, Mr. Bollinger's Petition for Relief. DONE AND ENTERED this 15 day of June, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 15th day of June, 2000. COPIES FURNISHED: Edwin R. Bollinger 6372 Alderwood Plaza Woodbury, Minnesota 55125 Marshall G. Wiseheart, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149
The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S 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 13th day of March, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
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. Ocean. Some facilities of Amelia Island Company front on the Atlantic 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 percent) 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 percent) 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 percent 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 this case. 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 action of the Department evidenced by the Signs and Information Sheet to the extent that the public is informed 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 action of the Department evidenced by the Signs and Information Sheet to the extent that the public is informed 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 challenge to the Signs and Information Sheet as an unpromulgated rule in case numbers 92-4912RU and 92-4913RX were dismissed by a Final Order entered simultaneously with this Recommended Order.
The Issue Whether Respondent, Department of Environmental Protection's ("Department") intended decision to award a contract to Intervenor, US eDirect, Inc. ("US eDirect"), for a Parks Business System ("PBS"), pursuant to Invitation to Negotiate 2019002 ("the ITN"), is contrary to the Department's governing statutes, rules, or the ITN specifications, and contrary to competition, clearly erroneous, arbitrary, or capricious.
Findings Of Fact The Parties The Department is the state agency responsible for managing and preserving Florida's 175 state parks. The Department has been recognized as the nation's only three-time winner of the National Gold Medal Award for Excellence in the management of the state park systems. This achievement makes Florida the only state park system in the nation to win more than one Gold Medal award. The Department is committed to excellence and sustaining its high level of service for its park visitors. Petitioner, RA Outdoors, LLC, d/b/a Aspira, is a limited liability company organized under the laws of the State of Texas. Aspira is registered to do business in the State of Florida. Aspira is the incumbent contractor for the CRS and POS services being requested under the ITN. Aspira has been under contract with the Department to provide a CRS system for the past 19 years and a POS system for the past four years. Intervenor, US eDirect, Inc., is a corporation organized under the laws of the State of New York. The ITN The process for the ITN began many years ago when the Department was in the process of renewing its contract with Aspira for the final renewal period. Knowing that the end of its contract with Aspira was approaching, the Department sought to gain knowledge of the products and solutions available in the industry for CRS and POS systems. The Department issued a Request for Information ("RFI") in 2016, 2017, and 2018. The 2016 RFI sought to obtain industry information related to the Department's acquisition of a POS system. The 2017 RFI sought to obtain industry information about automated park entry technology solutions. The 2018 RFI sought to obtain industry information about park business systems technology. The 2017 and 2018 RFIs expressed the Department's interest in obtaining functionality, including "'[f]ast pass' or quick access lane options for both day use admission as well as for registered campers" and "entry ticket sales in a high-sales environment." The responses to the RFIs indicated there are multiple viable products, which varied significantly in technology, solution, cost model, total cost, integration potential, and requirements. The Department chose to utilize the most flexible comparative procurement process to achieve its goals; specifically, an ITN method of procurement rather than an invitation to bid or request for proposals. The Department chose an ITN because it wanted industry leaders to craft individual and innovative solutions so that the Department could then determine the best value option for the State. Against this backdrop, on March 18, 2019, the Department posted the ITN on the Florida Vendor Bid System ("VBS"), seeking replies from qualified vendors to provide a PBS. The procurement officer designated by the Department for the ITN was Gloriann McInnis. The primary focus ("core services") of the ITN was to procure the CRS and POS business systems. The ITN stated its "[p]urpose and [s]cope" as follows: The Department of Environmental Protection (hereinafter referred to as the "Department" and/or "DEP") is seeking offers from qualified vendors to provide a Park Business System (PBS), that includes both the implementation and ongoing operation, including maintenance and management, of a comprehensive integrated technology solution for park business needs (Solution). This solution should include, at a minimum, a Central Reservation System (CRS) capable of supporting online, in-person, and call center reservations for multiple locations statewide on a 24/7 basis, and a day-use Point of Sale system (POS) capable of supporting over $70 million, with the capacity for growth, in financial transactions on an annual basis.[1] The Department's goals for the ITN included "solutions which can provide the primary functions of a CRS (for camping and cabin reservations) and a day-use POS system (for park admission sales, annual entrance pass sales, equipment rentals, facility rentals, merchandise sales and other park fees) in an integrated, easy-to-use and highly accessible format." In addition to the core CRS and POS systems, the ITN also indicated that the Department "is open to considering outcomes beyond [the] CRS and POS functionality that would make the system more efficient and effective. If a Respondent has additional services to offer, these options should be documented in the response." The potential additional optional services the Department indicated it was open to considering included, but were not limited to, automated entry solutions, mobile ticket applications, self-service kiosks, technology to support fast-past entrance lanes, online merchandise sales, and online park guide or park guide applications. The ITN provided two pricing components: one price proposal for the core solutions based on a mathematical percentage fee of the estimated annual park system revenue of $55 million, and a second price proposal for the value-added or optional services. The Price Sheet attached to the ITN (Section 7.00) provided spacing for the vendors to submit their prices for the core solutions only, based on a projected mathematical percentage fee of the estimated revenue of $55 million. The Price Sheet did not include spacing for value-added services. 1 The ITN contained attachments that included, among other things, the Requirements Document for the ITN labeled as Attachment G, and the Service Level Agreement and Performance Standards for the ITN labeled as Attachment H. From the time the ITN was posted on VBS, on March 18, 2019, through the Department's intended award decision on July 6, 2020, the Department posted nine Addendums to the ITN on the VBS. No vendors protested the ITN terms, conditions, or specifications, including as amended by the addenda. The Department made clear in the ITN that, with respect to vendor replies as to the core solutions, it "will consider the Respondent's Percentage Fee only, all other pricing requested is 'value added.'" With respect to the value-added services, the Department had no preference as to how a vendor priced its value-added services. The ITN expressly stated: "At the conclusion of negotiations, the Department will request best and final offers (BAFOs) from the remaining respondents and notify them of the selection criteria on which the award will be based."2 The ITN further stated: "After receipt of the BAFOs, the Department may conduct a Public Meeting for the negotiation team to discuss the results of negotiations and formulate their recommendations to the Department as to whether and how to award a Contract pursuant to this solicitation." "The negotiation team will not engage in scoring but will arrive at its recommendation by discussion during a public meeting." Submission and Evaluation of Replies to the ITN After conducting an initial review of vendor submissions addressing the ITN's Minimum Mandatory System Requirements, the Department identified five vendors with the greatest degree of fit with the requirements of the ITN. On June 5, 2019, the Department posted ITN Addendum No. 3, which identified the following top five vendors that would be allowed to submit full replies to the ITN: Aspira, US eDirect, Sovereign Sportsman Solutions, Conduent, and Mission Critical Solutions of Tampa. A full reply was comprised of a business volume, which included a completed Price Sheet, a technical volume, and an operational volume. The Department established an evaluation team, which evaluated the five replies and identified the three highest scored vendors within the competitive range reasonably susceptible to an award with whom the 2 That selection criteria was not posted on VBS. Department would negotiate. The Price Sheet attached to the ITN was used by the evaluation team to evaluate the replies. On November 5, 2019, the Department posted its decision on VBS, inviting the top three vendors (Aspira, US eDirect, and Conduent) to participate in negotiations with the Department pursuant to Addendum No. 6 of the ITN. The parties agree that Aspira and US eDirect submitted responsive replies to the ITN and are responsible vendors. Site Visit, Demonstrations, Negotiations, and Strategy Sessions Following the evaluation of the replies to the ITN, the Department entered into the negotiation phase. The Department designated Fran Spivey as the lead negotiator and non-voting member of the negotiation team. The voting members of the negotiation team were Sasha Craft, a park manager; Warren Sponholtz, a Department IT specialist; Warren Poplin, a Department bureau chief for District 1, Division of Recreation and Parks; Carla Gaskin, a business expert with the Department; and Jim Brook, a Department business and contract supervisor.3 Prior to beginning negotiations, the Department invited the three vendors to a pre-negotiation site visit at Wekiwa Springs State Park ("Wekiwa") on November 22, 2019. Speed of entry of visitors into state parks is important. The Department chose Wekiwa because it is one of the busier parks in the state park system. The purpose of the site visit was to allow the vendors to observe "pertinent facilities and processes" and ask questions. The ranger station is the "hub" of where point-of-sale and reservation systems occur. Even though Wekiwa is one of the busier parks, only one ranger staffed the ranger station, which was typical. Points of interest to be observed during the site visit included observing traffic patterns and typical 3 Jim Brook was an alternate until May 21, 2020, and Warren Poplin was a subject matter expert until March 7, 2020, but both attended all the solution demonstrations. layout, functionality, and visitor interactions and park processes at the ranger station. During their site visit at Wekiwa, the vendors observed multiple campers waiting in line to make payments and the one ranger using two separate computers while working on multiple tasks, including "ringing up people as they came through the admission window, taking their payment, [and] answering the phone." At hearing, Mara Dombrowski, a planning consultant with the Department's Division of Recreation and Parks, who was involved in the development of the ITN, testified that "this one person has to be so efficient in order to keep things moving smoothly and quickly, getting people through the line, keeping the campers happy, checking them in quickly, really to keep the park running smoothly and operating." Following the site visit, the Department hosted meetings with each of the three vendors selected for negotiations so that the vendors could demonstrate the efficiency and operability of their proposed solutions to the ITN. Aspira demonstrated its solution to the Department at meetings held on March 10 and 17, 2020, and May 7, 2020. US eDirect demonstrated its solution to the Department at meetings held on March 11 and 18, 2020, and May 8, 2020.4 The vendors demonstrated their ability to run transactions to simulate entry into a state park. All devices demonstrated by US eDirect performed without issue. Mr. Poplin attended all the vendors' demonstrations. Mr. Poplin testified that Aspira failed to print a receipt during one of its demonstrations. On the other hand, Mr. Poplin described "US eDirect's printing of a receipt as 'instantaneous.'" Mr. Poplin was so impressed with the speed of US eDirect's printing of a receipt during its demonstration that he retained the receipt. 4 The Department also held demonstration sessions with Conduent, which is not a party to these proceedings. Ms. Craft, the park manager at TopSail Hill Preserve State Park, which contains the State's largest campground, also attended the vendors' demonstrations from her perspective as a park manager. As a park manager, Ms. Craft uses the POS and CRS systems on a daily bais. One of Ms. Craft's considerations as she watched the demonstrations was to observe the speed with which she could get visitors into the park. Ms. Craft observed that US eDirect's solution for check-in and POS items was integrated in an all-in-one system. At hearing, Ms. Craft testified that US eDirect's solution would be an improvement over the current system, which requires her to use two separate computers for POS and CRS transactions. Mr. Poplin and Ms. Craft also noted that Aspira's solution required a separate credit card machine. In addition, Ms. Craft noted and testified that under Aspira's solution, in order to process a credit card transaction, she would still have to manually select the type of credit card (i.e., Mastercard or Visa). On May 26, 2020, the Department revised the Price Sheet, Attachment 5, for the three vendors to resubmit their pricing prior to the beginning of negotiations. The Department revised the Price Sheet to include a separate section for value-added services so that vendor pricing for the core services and any value added services could be included in one cohesive document for the negotiation team's ease of reference. Throughout the procurement, the Department conducted internal strategy sessions with its negotiators, subject matter experts, and other personnel to discuss the procurement. The Department recorded these strategy sessions. After the demonstrations and initial strategy session meetings, the negotiation team began negotiations with the three vendors. The Department conducted separate negotiations with Aspira on June 9, 12, and 18, 2020, and with US eDirect on June 10, 16, and 18, 2020.5 During the negotiation phase, the negotiation team also conducted strategy sessions to strategize, discuss issues, and analyze the vendors' proposals. During strategy sessions, and as required by the ITN, the negotiation team developed and created the selection criteria to be used in determining "best value." During strategy sessions, the negotiation team also created an internal document titled "Best and Final Offer Guidelines" ("BAFO Guidelines"). Based on the sheer volume of information and time constraints, the negotiation team created the BAFO Guidelines as an internal aide if any individual members of the negotiation team felt they needed a tool to assist them in their individual review of the BAFOs. The BAFO Guidelines set out the selection criteria. Although the BAFO Guidelines contained a scoring matrix, weights, and subparts for the various criteria, negotiators were not required to score the BAFOs. The BAFO Guidelines that were utilized by certain individual negotiators were not collected or shared with any other negotiators.6 During the strategy sessions, including sessions held on June 16 and 17, 2020, the negotiation team decided to modify the Department's May 26, 2020, Price Sheet, Attachment 5, to attach to the Department's request for best and final offer ("RBAFO"). The Price Sheet f attached to the RBAFO was different from the Price Sheet attached to the posted ITN. During negotiations on June 18, 2020, Aspira asked the Department, "[I]s there a preferred path that you can say, you know, that DEP would like 5 The Department also conducted negotiation sessions with Conduent in June 2020. 6 The weights and subparts were created by the negotiation team in two strategy sessions. The Department did not provide the vendors with the BAFO Guidelines and the BAFO Guidelines were not posted on VBS. to have either it's everything--that one base fee is all-inclusive for everything that says it's included in the base fee or you'd like to have that additional hypothetical, if you want to do a kiosk, it's going to be an additional X dollars a month. Is there a proposed path?" The negotiation team stopped negotiation with Aspira and held a sidebar strategy session to discuss how to answer Aspira's question. The negotiation team understood that Aspira proposed to charge the Department the same flat-fee percentage price structure for the core solutions and any value-added services. The negotiation team realized that the revised Price Sheet did not provide spacing for Aspira to list its proposed percentage fee for value-added services. The negotiation team decided to modify the revised Price Sheet prior to BAFO submissions to allow Aspira to present its price for value-added services as a percentage of the transactions processed through individual value-added optional items. After the sidebar strategy session, negotiations resumed between the Department and Aspira. The negotiation team informed Aspira that the Price Sheet would be revised to allow for percentage based pricing for value-added services prior to the BAFO submissions. In response, Aspira asked again, "is there a preference that you can tell us that DEP would like as far as methodology?" In response, Mr. Brook responded, "we're fine with your methodology, we just want to confirm that is your methodology, that is your proposal. We understand that proposal to be, for a lack of a better way to describe it, a flat fee across all methods of revenue collection. And that's great, that's fine, yeah." The negotiation team, however, gave no indication of its preference nor instructions on how Aspira should price its proposed value- added services. During negotiations on June 18, 2020, Mr. Sponholts also explained to U.S. eDirect changes to the layout of the Price Sheet regarding value-added services, stating: So, some of the discussions we had, we were getting questions about, you know, how many of these are you going to need? How important is this? When are you going to need these? And, you know, usually our answers end up being, we're not really sure, it may be in a couple years. And we're gonna need at least some of them. So, I know it was hard for respondents to come up with some good pricing to be able to respond to that and make sure--like was alluded to the other day, make sure the backpack was filled correctly. So we've kind of changed the way we're asking for some of the pricing for additional and value-add items. And moving to more of a monthly service per-unit style approach, more of a--as a service approach. So, it allows us to consume and doesn't have to make any of the respondents kind of go out on a limb and to gamble on how much they think we need. So we've kind of listed everything here as-- into a per unit or a per-package pricing model on monthly fee. And then we would just pay for those items on a monthly basis. So, just want to make sure you understood the reason for that. The only exception for that is at the bottom. There are a couple of things that don't lend themselves to a service model, and that the-- Keep going down. MS. SPIVEY: Annual pass. MR SPONHOLTZ: Yeah, So, like the annual passes and the text messaging for mass communication, I know we've been going back and forth talking to you guys specifically about whether that's included in the base percentage or whether that's something outside of the base percentage. It's--but we'll leave the options in this sheet whether you can include it in your base fee or you can describe or you can present a more a la carte model. But the text messaging and the annual passes, they don't really lend themselves to a per-month model, they lend themselves to a per-month model, they lend themselves to more of a consumption model. So we want to leave that open for you guys to describe. That's it. Joint Ex. 63, pp. 1851-52. Contrary to Aspira's assertion, Mr. Sponholtz's comments to US eDirect during this negotiation session do not reflect a preference and direction to US eDirect that it should price its value-added solutions through an "a la carte" pricing model rather than a percentage-fee-based pricing model. As a review of the above comments and Mr. Sponholtz's testimony at hearing reflect, Mr. Sponholtz merely explained to both Aspira and US eDirect the Department's goal of moving more towards a service model approach (purchasing equipment as it is needed) and away from an ownership of equipment model approach because the Department did not want to own a lot of equipment it may not ever need. At hearing, Mr. Sponholtz explained that his comments made to both Aspira and US eDirect gave each vendor "flexibility to be able to price things so--to kind of move with our--move with our scale." As testified to by Mr. Sponholtz at hearing, his comments "fit[ ] in with the modification that the negotiation team [made] to the value-added prices on the final Price Sheet with the three columns of compensation." As further explained by Mr. Sponholtz at hearing: A: Right. So after speaking with all the respondents, we want to make sure the price sheet was set up such that it would work for the different pricing models. So we expected--we expected some different pricing models and we just wanted to provide some organization via the pricing sheet so that we could be able to, you know, review those pricing models, so that's why we put that in there. We also told them, though, that if they had aspects of their pricing model that did not match that format, then to go ahead and just add rows and columns and describe their pricing--pricing methodology and we would consider it. T., Vol. IV, p. 568. The second revised Price Sheet (Attachment 5; Joint Exhibit 24, pages 294 through 297) made clear to the vendors, "[i]f your pricing method for any service does not align with the models provided below, please insert rows and/or columns to the appropriate tables and describe your proposed pricing model in detail." Again, the Department did not dictate how the vendors should price value-added services; rather, the ITN and instructions allowed the vendors flexibility to choose how to configure and price any value-added services. The BAFOs and the Negotiation Team's Recommendation On June 19, 2020, the Department sent the three vendors an RBAFO, and the Procurement Officer emailed the three vendors: (1) the selection criteria on which the award would be based; (2) the second revised Price Sheet (Attachment 5); (3) the Department's Standard Contract to be signed and returned by the vendor selected for the ITN services; (4) Supplement Scope of Work Sample; and (5) Contract Certifications. BAFO's were due to the Department by June 26, 2020, at 4:00 p.m. Both Aspira and US eDirect timely filed BAFOs.7 The selection criteria for reviewing the vendors' BAFOs, as provided to the three vendors, provide as follows: F. SELECTION CRITERIA The Department shall make its determination of which solution provides the best value to the state based on the selection criteria below: Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's technical requirements as 7 Attachment 5 of the RBAFO was not posted on the VBS. demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's operational requirements for CRS as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's operational requirements for POS as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the operational requirements for administrative and reporting web application as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Proposed staff experience (including proposed subcontractors) and respondent's responsibility as demonstrated by the entire response, system demonstrations, and negotiation sessions. Optional solutions: Respondent's articulation, innovation, and demonstrated ability of the proposed for the optional solutions as well as the approach availability and pricing as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Acceptance of standard contract terms and conditions including SLAs and financial consequences as demonstrated by the BAFO. Respondent's pricing as submitted in the BAFO. Joint Ex. 227, p. 7273. US eDirect's BAFO proposed a flat-fee percentage of 4.75% for its core solution during the initial term of the contract and 4.5% for its core solution for the renewal term of the contract. For value-added solutions, US eDirect proposed its proprietary Yodel System, which is comprised of a Yodel App for the public, Yodel Ranger App for park staff, and a Yodel camera and barrier gate. The Yodel system is a completely automated solution which reads license plates to grant park entry. US eDirect proposed a flat-fee transaction of $0.15-$0.40 depending on the equipment the Department chose to employ. This flat-fee would be paid by park visitors as a convenience fee for use of the technology. Additionally, US eDirect proposed other value-added solutions via an "a la carte model," by which the Department could pick and choose to employ other value-added solutions for an additional monthly charge. Aspira's BAFO proposed a flat-fee percentage of 4.95% for its core solution during the initial term of the contract and 4.7% for its core solution for the renewal term of the contract. Similar to US eDirect's proposal, Aspira's BAFO proposed a list of value-added solutions from which the Department could choose. However, Aspira proposed a price model for its value-added solutions based on the same flat-fee percentages as its core solutions (4.95% for the initial term and 4.7% for the renewal term). In addition, Aspira purposefully chose to leave its BAFO section for value-added solutions vague by not listing specific hardware. As Aspira explained to the Department during a negotiation session on June 18, 2020, Aspira wanted "flexibility going forward as to those vendors who introduce new hardware and their features and functions, to be able to substitute that hardware at that kind of standard fee percentage versus us having to do more complicated things or having you do capital expenditures…." Aspira also declined to specify the quantity of value-added solutions it would provide. Instead, Aspira vaguely indicated it would "'work together' [with the Department] to identify appropriate locations" for implementing value-added solutions which are "both financially viable and provide[s] an increase in customer service." On July 6, 2020, the negotiation team held a public meeting (Intent to Award Meeting) to discuss which vendor the team believed presented the best value to the State. Each negotiator commented on which vendor he or she believed provides the best value to the state based on the selection criteria. Mr. Sponholtz stated, from his IT perspective, that he liked US eDirect because its solution had a very clean and intuitive design. He also felt US eDirect had a very high rate of configurability, which was "super important" because of the diverse makeup of the parks throughout the State. Mr. Sponholtz further stated that US eDirect had a proven endpoint management software solution in place available to manage all those endpoints throughout the State. He characterized US eDirect as a "market leader in that sense." Mr. Sponholtz further stated that US eDirect "also performed very well during the demonstration," with "[n]o issues popp[ing] up during the demonstrations." Mr. Poplin felt US eDirect provided "really good innovativeness." He explained his rationale from the perspective of the Department's "field operations and the ease of use for our park-level staff and ease of site and use for our visitors as well." Mr. Poplin went on to state that one of the things he had been "pushing hard on for each one of the respondents was the speed of transactions." He thought it was very important to be "able to move our guests into the parks" because "we have several of our busy parks that bottleneck." According to Mr. Poplin, US eDirect demonstrated the faster solution. Ms. Craft, from her perspective as a park manager at Topsail Hill, stated that her "selection came down to the system that I felt was innovative and user friendly." For her, ease of use and speed of transactions for the field staff was important, and US eDirect's "fully innovative system would be perfect for our field operations." Both Ms. Gaskin and Mr. Brook viewed Aspira as the top solution during the preliminary vote. From Ms. Gaskin's perspective, the "main deciding factor" between US eDirect and Aspira was Aspira's "ability to leverage customers that they already have--from a marketing perspective." However, Ms. Gaskin acknowledged she is not "in the field" and "not an IT person," so she would "respect the opinions of those two who would actually be using the system." Mr. Brook also felt Aspira "offered proven customer reservation system and expertise" through its marketing channel ReserveAmerica.com. Thereafter, the negotiation team engaged in a discussion amongst themselves to try and reach a consensus on the vendor who presented the best value, and a second vote was taken. Mr. Sponholtz, Mr. Poplin, Ms. Craft, and Ms. Gaskin voted for US eDirect as the best value to the State. At hearing, Ms. Gaskin testified that she changed her vote after hearing Mr. Poplin's and Ms. Craft's comments related to the functionality and ease of use of US eDirect's system for field staff, which she decided was more important than marketing. Only Mr. Brook voted again for Aspira in the second vote. After the second vote, Mr. Brook said he believed consensus is important, that he and the program will move forward enthusiastically with US eDirect, and the negotiation team unanimously recommended the award to US eDirect.8 8 Aspira failed to prove the allegations in its Amended Petition that "[u]tilizing any website but Reserve-America will result in the loss of 40% of the State's revenue." Indeed, the belief regarding any potential loss of revenue by leaving the ReserveAmerica.com platform is speculative. In any event, Mr. Brook and Ms. Gaskin raised the issue of the revenue generated by Aspira's website and marketing during the award recommendation public meeting; the issue was discussed, and, as detailed herein, it was ultimately determined at the public meeting that other factors were more important in determining best value. At no time during the public meeting were scores discussed with the group. The negotiators did not mention scores or scoring during the public meeting. After the public meeting, the Department posted its Notice of Intent to Award the contract to US eDirect on the VBS. Aspira's Protest Aspira raises numerous issues, none of which warrant rescission of the Department's intended award to US eDirect. Comparison of Pricing Aspira's primary contention is that the negotiation team "failed to properly price the 'core services'" and conduct an "apples-to-apples" comparison of Aspira's and US eDirect's pricing models for the value-added solutions set forth in their BAFOs. The persuasive evidence adduced at hearing demonstrates that the negotiation team properly conducted a mathematical formulaic "apples-to- apples" comparison of the flat-fee percentage prices for the core services, and that the price offered by US eDirect for the core services was lower than the price offered by Aspira. As to the optional value-added services, each vendor was given the freedom to present its best value-added solutions and best price model for the value-added services. Contrary to Aspira's assertions, the extensive negotiations were handled properly and in a collaborative and non-biased manner with no competitive advantage given to US eDirect. The negotiation team properly considered the prices offered by Aspira and US eDirect for value-added services as part of their individual best value determinations, but price was not a determinative factor and was, therefore, given nominal weight. The negotiation team did not do an "apples-to-apples" comparison of the value-added services because each vendor's pricing model was different and, in any event, such an analysis was not required in determining best value. The pricing of value-added services was not the focus of the selection criteria or ITN. The ITN and selection criteria centered on the core services for a POS and CRS system; not the pricing for value-added services. The Department does not even know what value-added services it may purchase in the future. On the other hand, the Department is required to pay the core price upon execution of the contract. Under the facts of this case, it was well within the negotiators' discretion to accord nominal weight to the pricing of value-added services contained in the BAFOs and more weight to the core solution price, superior functionality, ease of use, and innovativeness of the core solutions offered by US eDirect. In sum, the persuasive and credible evidence adduced at the hearing demonstrates that the negotiation team's consideration of pricing was not contrary to the Department's governing statutes, rules, or the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. BAFO Guidelines Aspira also contends that the creation and use of the BAFO Guidelines by the negotiators violated the ITN's specification that "[t]he negotiation team will not engage in scoring but will arrive at its recommendation by discussion during a public meeting." The persuasive evidence adduced at hearing demonstrates that the negotiation team's best value determination was properly made by a discussion at the public meeting and not based on the use or scoring of the BAFO Guidelines. The negotiators understood that the BAFO Guidelines were merely a "tool" to aide them in their individual deliberations, and not a requirement of scoring the vendors. The negotiators who scored the vendors pursuant to the BAFO Guidelines did not share their individual scores with other negotiators or anyone else, and the scores were not turned into the procurement officer to tally. Instead, the negotiation team met in a public meeting and had a discussion as to whom they each believed represented best value--a discussion that did not include scores or scoring. After an initial vote, the negotiation team further discussed who they believed presented the best value. Notably, based on this discussion, Ms. Gaskin was persuaded to change her vote from Aspira to US eDirect. A second vote was taken and the negotiation team voted four to one in favor of US eDirect. After that, Mr. Brook was persuaded to change his vote and the recommendation of award was unanimous. In sum, the persuasive and credible evidence adduced at the hearing demonstrates that the negotiators' creation and use of the BAFO Guidelines was not contrary to the Department's governing statutes, rules, or, the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. Speed of Entry In its Amended Petition, Aspira further alleged that the negotiation team improperly considered speed of park entry as a factor in the award because the ITN does not address "speed of entry." However, the ITN is replete with language showing the Department's desire to increase the speed of entry for park visitors. For example, the ITN stated: (1) the Department is seeking a PBS with proposed solutions that "offer convenience to park visitors, staff, and management, and capabilities with DEP systems for mobile devices and personal computer dashboard, reporting, and management." (2) "To support the Division's mission, it is imperative that the Department have access to tools that are intuitive and efficient to use to ensure visitor satisfaction and stimulate customer-based marketing." (3) "Park Admission transactions are the primary focus of the POS. The POS must be a robust system to allow for fast and efficient park entry." (4) POS and CRS "[s]ystem must provide efficient and intuitive functionality to allow park staff to process transactions in a high-volume environment." (5) "All POS transactions and screen navigations will complete in under .2 seconds as measured at the POS location." In addition, Aspira understood through negotiations that speed of entry into the state parks was very important. During negotiations with Aspira, Mr. Brook told Aspira's representative that, "… and just to reiterate that we have an understanding that speed is of the essence in Florida state parks … speed is of the essence, speed of entry. So our goal is to make that even faster…." In response, Mr. Trivette, Aspira's chief executive officer, stated, "You guys have made it crystal clear, and frankly, if you look at the majority of the new technologies that we positioned in the ITN, they're pretty much all around speed, ease of entry, being consumer friendly and helping get people in the parks faster, which ultimately is a better consumer experience and drives additional revenue." The persuasive and credible evidence adduced at hearing demonstrates that the negotiation team's consideration of speed of entry into the park was not contrary to the Department's governing statutes, rules, or the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. In sum, the persuasive and credible evidence adduced at hearing demonstrates that the Department appropriately determined that the proposed award to US eDirect will provide the best value to the State based on the selection criteria. The Department's intended award to US eDirect is not contrary to the Department's statutes, rules, or the ITN specifications, clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the protest of Petitioner, RA Outdoors, LLC, d/b/a Aspira. DONE AND ENTERED this 15th day of October, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 2020. Yodel system. As previously discussed, pursuant to the ITN, Aspira was free to propose whatever pricing method it desired for value-added services. At hearing, Mr. Trivette admitted that Aspira could have bid its proposal other ways, but it chose not to do so. At hearing, Aspira dropped the allegations within sections "H" and "I" of its Amended Petition. COPIES FURNISHED: Kristin Mai Bigham, Esquire Ronald Woodrow Hoenstine, Esquire Kathryn E.D. Lewis, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Thomas Porter Crapps, Esquire James Zubko Ross, Esquire Joy Ryan, Esquire Meenan P.A. 300 South Duval Street, Suite 410 Tallahassee, Florida 32301 (eServed) Kirsten H. Mathis, Esquire Meenan P.A. 300 South Duval Street, Suite 410 Tallahassee, Florida 32301 Richard E. Coates, Esquire Coates Law Firm, PL 115 East Park Avenue, Suite 1 Tallahassee, Florida 32301 (eServed) Marion Drew Parker, Esquire Christopher Brian Lunny, Esquire Radey Law Firm 301 South Bronough Street, Suite 200 Tallahassee, Florida 32301 (eServed) Dawn Stern, Esquire Richard P. Rector, Esquire DLA Piper, LLP 500 Eighth Street Northwest Washington, DC 20004-2131 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
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.
