Findings Of Fact Suncoast Highland Corp. (Suncoast), is the developer and registrant of Shadow Run Subdivision in Hillsborough County. Prior to 1970, Suncoast was known as Suncoast Peach Corporation. C. Thomas Petersen, Peter Lenhardt, and two other individuals formed Suncoast Peach Corporation in 1964. In 1974 Suncoast registered Unit 1 of Shadow Run with the Division of Land Sales (Division). At that time Suncoast's principals were C. Thomas Petersen, President and Director, and Peter M. Lenhardt, Vice President, Director, and in charge of marketing. As a charter stockholder and owner of 166,000 shares (26-2/3 percent of ownership), Lenhardt filed an affidavit stating he devoted 100 percent of his time five days per week to Suncoast's business affairs. Lenhardt was (and presumably still is) a registered real estate broker and was in charge of sales in Shadow Run. In 1977 Suncoast registered Unit 2 (consolidated with Unit 1) with the Division. At this time Petersen and Lenhardt alleged each owned 13.5 percent of Suncoast and Lenhardt again filed an affidavit stating he devoted 100 percent of his time to Suncoast's business affairs and was in charge of sales in Shadow Run. In the Annual Report filed November 13, 1978, Lenhardt executed an affidavit representing himself to be Suncoast's principal officer in connection with this filing. This report included financial and inventory data for Shadow Run, Units 1 and 2, as well as 16 other registered subdivisions. At this time Petitioner and Lenhardt represented they each owned 38 percent of Suncoast (Exhibit 1E). On January 30, 1979, Lenhardt filed, under oath, renewal applications for Shadow Run, Units 1 and 2. This application (Exhibit 1F) showed out of 277 lots registered in Unit 1, 227 had been deeded and 50 remained to be sold. In Unit 2 out of 89 registered lots, 76 had been deeded and only 13 remained unsold. In August 1978 the Division began receiving complaints from Shadow Run homeowners concerning assessments, placing of utilities, and lack of promised recreational facilities. After meeting with the homeowners association and representatives of Suncoast, the Division issued a Notice to Show Cause against Suncoast. For several months thereafter representatives of the Division, Suncoast, and the homeowners association attempted to resolve the complaints. On April 19, 1979, C. Thomas Petersen, President, and Thomas Coates, Secretary, of Suncoast executed a stipulation in which, inter alia, further sales would remain suspended pending submission of all promotional and advertising materials to the Division, Suncoast would enter into an agreement concerning recreational facilities to be furnished by Suncoast, and Suncoast would pay a $7,500 civil penalty to the Division (Exhibit 1G). On December 10, 1979, Suncoast executed an agreement (Exhibit 1H) whereby it agreed, among other things, to install a concrete boat ramp no longer than 20 feet extending not more than two feet into Lake Grady on Lot 14, Block 1, Shadow Run, Unit 1, and convey legal title of the boat ramp area to the association; and, in conjunction with the boat ramp, provide a parking area 96 feet wide abutting on Shadow Run Boulevard at Lot 14, Unit 1, Shadow Run Subdivision, running from Shadow Run Boulevard to the water. This agreement was not recorded. No evidence was submitted when, or if, Lenhardt disposed of his ownership interest in Suncoast and Timber Oaks and terminated his management role in those companies. Lenhardt was listed as Secretary/Treasurer of Suncoast in the annual corporate report for 1980. His name on the 1981 annual corporate report for Suncoast was lined out and Linda Burr's name was added as Secretary. Lenhardt's name does not appear on subsequent reports. Timber Oaks, Inc., was incorporated February 11, 1980, with C. Thomas Petersen as President, Peter M. Lenhardt as Vice President, and Linda Burr as Secretary (Exhibit 3). On the 1981 annual corporate report Lenhardt's name was lined out and Linda Burr's name was added as Secretary. Coppice-Boden, Inc., was incorporated August 28, 1980, with Peter Lenhardt as President, Helen K. Lenhardt as Vice President, and Delores Hamm as Secretary. Hamm's name was deleted from the 1982 annual corporate report and both Lenhardts continued to be listed through the 1984 annual corporate report. No evidence was submitted showing transfer of the property which included Lot 14, Unit 1, Shadow Run Subdivision 1, from Suncoast to Timber Oaks, Inc.; however, by warranty deed dated October 29, 1982, Timber Oaks, Inc., conveyed property which specifically included Lot 14, Unit 1, Shadow Run Subdivision 1, to Coppice-Boden Corp., for a stated consideration of $340,000 (Exhibit 5). On November 11, 1982, Coppice-Boden, Inc., mortgaged the property which included Lot 14, Block 1, Unit 1, Shadow Run Subdivision, to G. G. Moore to secure a note in the amount of $72,031.63. The Special Warranty Deed dated February 29, 1980 (Exhibit 8) whereby Community Banks of Pinellas conveyed certain property to Timber Oaks, Inc., excluded Lots 1 through 22, inclusive, of Block 1, of Shadow Run, Unit 1.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Parties and the Amendment DCA is the state land planning agency charged under Chapter 163, Part II, Florida Statutes, with the review of comprehensive plans and plan amendments. Final agency action with regard to plans and plan amendments found not "in compliance" by DCA is taken by the Governor and Cabinet, sitting as the Administration Commission, in accordance with Section 163.3184(10), Florida Statutes. The City is a municipality located in Broward County. As a municipality, it is required by Chapter 163, Part II, Florida Statutes, to adopt a comprehensive plan. The City adopted its comprehensive plan (the "Comp Plan") in June of 1989. The two planning periods addressed in the Comp Plan are five year and ten year periods. Subsequent to adoption of the Comp Plan, the City has adopted at least two amendments which were found to be "in compliance" by DCA. A third amendment, which was adopted at the same time as the amendment at issue in this proceeding, was the subject of a "compliance agreement" at the time of the hearing in this case. The amendment which is at issue in this case was adopted by the city on September 3, 1991 as Ordinance No. 91-77. (This amendment is hereinafter referred to as the "Amendment" or the "Plan Amendment"). The Amendment revised the Recommended Traffic Circulation Plan Map and the Future Functional Classification Map of the City's Comprehensive Plan to remove approximately 10.46 acres of Oaks Drive right-of-way, a local road, from the traffic circulation network. The portion involved was the northern segment located from Oaks Way to Oaks Terrace. Prior to adoption of the Amendment, a draft of the proposal was reviewed by DCA which issued its objections, recommendations and comments in the form of a letter to the Mayor of the City dated July 5, 1991. (This letter is hereinafter referred to as the "ORC.") After receiving the ORC, the City adopted the Amendment. The adopted Amendment was not changed from the proposed amendment. Following the adoption of the Amendment, the City transmitted to DCA the following: a September 4, 1991 transmittal cover letter; Ordinance No. 91- 77; the Traffic Circulation Element goals, objectives and policies from the Comp Plan in place at the time of the Plan Amendment; the application for the Plan Amendment submitted by the developer to the City; a traffic circulation study prepared by Tinter Assoc. (the "Tinter Study") which was part of the application; and the City's Response to DCA's ORC. After receipt and review of the adopted Amendment and the other documents in the transmittal package, DCA initiated this proceeding. The Site and the County Plan The segment of road which is abandoned by the Amendment is adjacent to the "Oaks Tract", a 51.7 acre site within a development known as the Palm Aire Development. The Palm Aire Development lies to the west of Powerline Road, east of Florida's Turnpike, and south of Atlantic Boulevard. The Oaks Tract is part of the northern portion of the Development and is bordered by Broward County Water Management District No. 4 Canal on the west and South Florida Water Management District C-14 Canal on the north and east. Beyond the C-14 Canal to the north is Atlantic Boulevard. To the south of the site is a golf course and condominiums which are part of the Palm Aire Development. The Comp Plan's data and analysis describes Atlantic Boulevard as the City's main arterial. It is a six lane road from Florida's Turnpike east to I- 95 and a four lane road from I-95 to its eastward terminus at the beach. The data and analysis notes that future plans along Atlantic Boulevard include the construction of an interchange at Florida's Turnpike. The Palm Aire Development is one of the facilities which the data and analysis mentions as served by Atlantic Boulevard. The segment of Atlantic Boulevard at issue in this proceeding is the portion of Atlantic Boulevard west of Powerline Road. The plat for the Oaks Tract Subdivision, which is described as Palm Aire Oaks Course Estates Section 3, was approved by the Broward County Commission and recorded in 1980. At that time, the subdivision was planned for 1182 high-rise units. In 1986 or 1987, the County and owners of the subdivision entered into an agreement which resulted in an amendment to the subdivision's development level. Based on this revised agreement, the Oaks Tract Subdivision was planned for 1180 units of mixed types: single family detached units, townhouse units, garden apartments, and high-rise units. In other words, the development plan was no longer exclusively high-rise multi-family units. Impact fees were assessed by the County when the plat was initially approved. Additional road impact fees were assessed at the time of the change in the development mix. At the time of the original plat approval, the owners of Oaks Tract conveyed the Oaks Drive right-of-way to the City. As of the date of the hearing in this case, most of the Oaks Drive right-of-way was not paved. Only a small portion at the beginning and end of this segment had been paved. When the original plat was approved and recorded in 1980, there was no segment of Atlantic Boulevard to the north of Oaks Tract. That portion of Atlantic Boulevard was not constructed until the mid-1980's. At the time of original plat approval, neither the County nor the City analyzed or required concurrency. The City did not have any concurrency requirements until January 1, 1990, when such requirements first appeared in the City's land development regulations. The County first implemented concurrency requirements in 1989. Under the County's current regulations, a concurrency analysis is done prior to plat approval. While the current procedure for plat approval necessarily includes a determination that the traffic concurrency requirements of the regional road network have been met, such a determination was not required in 1980 when the plat for the Oaks Tract was approved. The Broward County Comprehensive Plan (the "Broward Comp Plan") was adopted in March of 1989. In the Traffic Circulation Element of the Broward Comp Plan, the adequacy of the regional road network is addressed. The regional road network consists of state arterial and collector roads and all county collector roads. FDOT Road Classifications And Level Of Service Standards The Florida Department of Transportation ("FDOT") is responsible for classifying roadways into hierarchical categories based on overall function in the regional transportation system. FDOT has adopted a functional classification system which categorizes the various roadway systems as part of the State Highway System, the County Road System or the City Street System. The State Highway System is a network of regional roads whose primary purpose is to move and transport people and goods in an efficient and safe manner. The roads in this network serve intrastate, intra-regional and intra-urban area trips. They are not designed to provide access to or serve adjacent land, which is a function of local roads. As noted above, the segment of Atlantic Boulevard at issue in this case is classified as a principal arterial road. It is part of the State Highway System. A principal arterial road is the highest level of road under the FDOT functional classification system. A principal arterial is a major highway serving regional activity centers and is designed primarily to move traffic, not provide access to adjacent land. Under the FDOT Highway Capacity Manual, roads are rated from "A" to "F" to measure the quality of service of a road. This FDOT manual sets forth level of service standards based on the speed which an average driver can maintain over a section of road. A level of service of "A" is the highest rating and "F" is the lowest. Under the FDOT Highway Capacity Manual, the level of service standard for an arterial road is "D" which reflects an average travel speed of 17 miles per hour. An arterial road which operates under capacity would reflect an average travel speed of under 17 miles per hour. The "E" level of service describes arterial roads with an average travel speed of between 13-16 miles per hour. If an arterial operates at less than 13 miles per hour, it is described as operating at a level of service of "F". Several factors affect the average travel speed of a road. The primary factor which slows travel speed is signalized intersections. Other factors include whether the road is divided, the level of development adjacent to the road, the number of driveways, and the types of traffic. FDOT rules relating to minimum level of service standards require principal arterials, such as Atlantic Boulevard, to operate at a level of service of "D". The comprehensive planning process seeks to insure that local land use decisions are consistent with these level of service standards. The type of analysis for arterial roads recognized and strongly recommended by FDOT to measure level of service is a peak hour analysis. Peak hour analysis is based on operating conditions of the 30th busiest hour in the year. Level Of Service For Atlantic Boulevard In order to assess whether the level of service for a road in the regional road network has been exceeded, Broward County developed and applies a "trips model." This "trips model" considers both trips generated by existing development and expected trips from committed development. Committed development is unbuilt development which has been vested or otherwise approved through development order for future development activity. When the County determines that a property is vested, the traffic is considered as committed on the regional road network. The determination applies to a certain level of development and does not designate specific roads for which the trips are vested. Around the time of the adoption of the Broward Comp Plan, the County made an assessment of the regional transportation network. The County determined that any road segment that was operating at level of service "D" or better just prior to the adoption of the Broward Comp Plan would be assigned a level of service standard of "D" in the Broward Comp Plan. The level of service standard adopted in the Broward Comp Plan in March of 1989 for the pertinent segment of Atlantic Boulevard is "D." This level of service standard has not been amended and remains in effect. To establish this standard, the County applied the "trips model" to the portion of Atlantic Boulevard to the north of the Oaks Tract and determined that, based on existing and committed development, this portion of Atlantic Boulevard was operating at a level of service of "D" or better. This analysis took into consideration the Palm Aire Development, including the Oaks Tract. The County concluded that development of the Oaks Tract was vested and calculated 5300 vested trips per day for the Oaks Tract Subdivision. In Broward County, municipal plans are required by the County to be at least as stringent on level of service standards as the County's plan. The City has adopted the County's standard for Atlantic Boulevard in the traffic circulation elements, goals and objectives of its Comp Plan. In the data and analysis submitted by the City to DCA in support of its Comp Plan, a system overview and analysis of the existing roadway conditions for daily and peak hour periods is set forth. Based on this analysis, the City developed a travel demand modeling process to identify future traffic conditions for short-range (1994) and long-range (2010) planning periods. The Comp Plan's data and analysis includes existing traffic volumes based on peak season and average daily traffic analysis. "Peak season" is considered to be the first quarter of the calendar year while average daily conditions reflect a year round situation based on the average of traffic counts performed in winter and summer seasons. Traffic Circulation Policy 02.05.02 of the Comp Plan provides: After January 1990, or when required by state statute, provide a Development Management System that will allow development to occur in concurrence with the Future Land Use Map and in concert with development of the traffic circulation system. Provide daily and peak hour LOS [level of service] "D" on all arterial and collector roadways where existing plus committed traffic allows and maintain traffic conditions on all other roadway segments. Provide daily and peak hour LOS "C" on all local roadways. LOS shall be based on the 1985 Highway Capacity Manual and the FDOT Generalized Daily and Peak Hour Level of Service Maximum Volumes. Other methods may be utilized but are subject to technical review and acceptance by the City. In Traffic Circulation Policy 02.05.02, the City establishes level of service standards for all arterial and collector roadways, where existing plus committed traffic allows, as "D" based on both daily and peak hour (not peak season) analyses. In order to be consistent with this policy, a level of service of "D" must be maintained under both daily and peak hour analysis. Rule 9J-5.0055(1)(d), Florida Administrative Code, requires that, in analyzing and establishing level of service standards for roads, a local government must, to the maximum extent feasible, adopt level of service standards which are compatible with the level of service standards established by FDOT. In addition, the local government should insure that adopted level of service standards will be maintained prior to issuance of a development order. Oaks Drive The Oaks Drive right-of-way is designated a local collector road in the City's Comp Plan. This right-of-way is depicted on the Comp Plan's future traffic conditions map series. The Plan Amendment which is the subject of this proceeding would change two of the four maps in that series, the "Recommended Traffic Circulation Plan" and the "Future Functional Classifications" maps, to reflect the removal of this right-of-way. The Oaks Drive right-of-way, as originally conveyed to the City, provided two access points into and out of the Oaks Tract Subdivision. Neither of those access points was directly connected to Atlantic Boulevard. The Bridge To Atlantic Boulevard In approximately May of 1989, the developer of Oaks Tract requested a roadway alteration permit from FDOT to build a bridge over the C-14 canal and connect the Oaks Tract Subdivision with Atlantic Boulevard. The application did not indicate, nor could it be gleaned from the information contained therein, that the Oaks Drive right-of-way would be abandoned at a future date. In order to receive the FDOT permit, neither the developer nor the City was required to demonstrate that the level of service on Atlantic Boulevard would be maintained. The road alteration permit was issued in approximately September of 1989. At the time of the hearing in this case, the access road and bridge between Atlantic Boulevard and the Oaks Tract was completed and approximately $450,000 had been expended on construction and engineering costs. Subsequent to the issuance of the roadway alteration permit, the developer of Oaks Tract requested the City to abandon the Oaks Drive right-of- way. The City advised the applicant that the abandonment would require an amendment to the Comp Plan as well as an abandonment authorization. Three right-of-way vacation requests were submitted to the City by the owners of Oaks Tract on October 12, 1990, March 13, 1991 and April 23, 1991. The right-of-way abandonment requests were forwarded to FDOT for approval. The requests did not reflect or reveal that, as a result of the abandonment, the only access to Oaks Tract would be across the new bridge spanning the C-14 canal to Atlantic Boulevard. This result was not clearly reflected in any information provided to FDOT prior to the initiation of this case. Because the right-of-way was not adjacent to a state road and the requests as written did not appear to affect a state road, FDOT did not raise any objection to the abandonments. At the hearing in this case, FDOT's representatives testified that the FDOT now objects to the vacation of the right-of-way because it would result in an exclusive access to Oaks Tract via the bridge to Atlantic Boulevard. FDOT is concerned that, by creating an exclusive access, all of the traffic generated by the development would be routed to Atlantic Boulevard thereby lowering the level of service on Atlantic Boulevard. DCA Review Of The Amendment The City approved the right-of-way abandonment requests submitted by the developer. Ultimately, the City also adopted the Plan Amendment to modify the Comp Plan to reflect the removal of Oaks Drive from the traffic circulation network. As noted above, prior to adopting the Amendment, the City sent the proposed Amendment to DCA for review as required by Section 163.3184, Florida Statutes, and Rule 9J-11.006(1), Florida Administrative Code. The documentation submitted to DCA included the Tinter Study. This Study is a "build-out" study which assesses traffic circulation patterns after the Oaks Tract development is completed. The time frame for build-out was estimated to be three years. Therefore, the Study addresses a projected three year period in the future. The Tinter Study was designed to support the right- of-way abandonment request, not the Comp Plan amendment. The Tinter Study is insufficient to support an amendment to the Comp Plan because its focus is too limited. The Study is concerned only with the impact of development from the Oaks Tract subdivision. To support a future traffic conditions map amendment, the impacts of other development which may occur in the area throughout the entire planning period (through year 2010), not just the impacts of the Oaks Tract subdivision over the next three years, should have been analyzed in order to properly evaluate whether the level of service will be maintained on Atlantic Boulevard. For example, the impact of the nearby Arvida Pompano Beach DRI was not considered in the Tinter Study even though that development will certainly affect the traffic on Atlantic Boulevard. The Tinter Study also failed to address the need for a traffic signal at the new access onto Atlantic Boulevard and/or at the future Florida's Turnpike interchange. A proper study of future impacts to Atlantic Boulevard would have addressed the need for and/or possibility of two additional traffic signals at these locations. Consideration of the need for these signals could alter the analysis of the capacity and the level of service of Atlantic Boulevard. Under the FDOT Level of Service Manual, if two new signals were added, the applicable classification of the road based on signalization would drop from Group "C" to Group "D," resulting in a lowering of the operating level of service to "F." Because it was designed as a "build-out" study to support a vacation of the right-of-way, the Tinter Study did not explore alternative traffic patterns such as leaving open access points on Oaks Drive leading to roads other than Atlantic Boulevard. Other access points could possibly mitigate impacts on the level of service of Atlantic Boulevard. The Tinter Study includes the following conclusion: [D]evelopment of the site based on the proposed Traffic Circulation Plan would result in a decrease in operating Level of Service on Atlantic Boulevard from Powerline Road to the proposed site access location from 'D', the maximum acceptable standard, to 'E'. The Study also concludes that, if the change was not made and the existing Traffic Circulation Plan remained in effect, at least three local collector roadways would exceed the City's minimum standards as a result of the development of Oaks Tract. As noted above, DCA issued its ORC in the form of a letter to the Mayor of the City dated July 5, 1991. That letter set forth DCA's position that the proposed Amendment was not supported by adequate and relevant data and analysis. Specifically, DCA expressed concern that creating a single access to the site from Atlantic Boulevard could result in a lowering of the level of service for this segment of Atlantic Boulevard from "D" to "F". As indicated above, after receiving the ORC, the City adopted the Plan Amendment with no significant modifications. When the City transmitted the adopted Plan Amendment to DCA, it included a "Response to DCA Objections, Recommendations and Comments Re: Traffic Circulation Element Amendment 91-03 Oaks Drive" (the "Response") attached to which was a letter dated August 22, 1991 from Walter H. Keller, Jr., a traffic planning engineer. The City's Response disputed DCA's conclusion that the level of service for the segment of Atlantic Boulevard would decrease from "D" to "F". The City contended that the Tinter Study's conclusion reflecting a decrease in level of service from "D" to "E" was based on a worst-case, peak season condition scenario. According to the City, average annual operating conditions for all the studied roadways would not be affected by the Amendment. The City cited to the letter from Mr. Keller to support this conclusion. That letter stated that ...[t]he proposed amendment will not impact adopted LOS standards. Furthermore, the proposed revised network will provide relief for the over capacity link on Powerline Road between Atlantic Boulevard and Palm Aire Drive North. Pompano Beach traffic circulation standards require LOS "D" to be maintained on an average daily basis. The amendment will not cause average conditions to exceed LOS Standards. This condition is based on the traffic circulation study performed for the proposal and the seasonal traffic analysis included in the City's traffic circulation element. In addition, the proposed network resulting from the Amendment will decrease traffic on Powerline Road between Atlantic Boulevard and Palm Aire Drive North by approximately 1800 trips per day. The City's Response to DCA's ORC also noted that FDOT had issued the permits for the access bridge to Atlantic Boulevard and that the bridge was under construction. The Response pointed out that The subject property is platted and vested for the trips expected to be generated by the proposed development. Based on this information, the proposed amendment satisfies transportation concurrency requirements for the City of Pompano Beach Comprehensive Plan. The documentation submitted by the City with the adopted Amendment did not alleviate DCA's concerns regarding the Amendment. In particular, DCA noted that Figure 6B of the Tinter Study and its accompanying chart show projected daily peak-season traffic volumes on Atlantic Boulevard at build-out. The portion of Atlantic Boulevard between Powerline Road and the new access to Oaks Tract is projected to serve 50,256 trips at a level of service of "E" and the portion of Atlantic Boulevard west of the new access to Lyons Road is projected to serve 45,943 trips at a level of service of "D." Thus, despite the conclusory language in the Response and in Mr. Keller's letter, the Tinter Study clearly shows that there will be some increased traffic on Atlantic Boulevard as a result of the Amendment. DCA noted with concern the Study's conclusion that: The only impact expected from the development of the site given the proposed Traffic Circulation Plan would be a decrease in the operating Level of Service from "C" to "E" for the link of Atlantic Boulevard from the site to Powerline Road. As mentioned, considering the existing plan, the link would decrease from Level of Service "C" to "D". Explaining The Tinter Study The Tinter Study includes the conclusion that: The development of the property based on the proposed Traffic Circulation Plan would create a negligible impact upon the roadway network in comparison with development of the property based on the Existing Traffic Circulation Plan. Unfortunately, The Tinter Study did not attempt to analyze the expected impact of the Plan Amendment by utilizing a methodology that could be easily compared to the calculation of the level of service standard set forth in the Broward County Plan. Instead, the Tinter Study was based upon existing operating level of service data to which was added the projected increase in average daily traffic and peak-season volume expected as a result of the buildout. Under these circumstances, comparing the conclusions of the Tinter Study to the policies and goals of the Comp Plan is very confusing and can be the functional equivalent of comparing apples to oranges. At the hearing, Andrew Sebo, the traffic engineer who prepared the Tinter Study, testified and attempted to explain certain of the conclusions set forth in the Study. He contended that the level of service for average daily traffic conditions on Atlantic Boulevard would not increase as a result of the Amendment. To support this conclusion, he presented revised calculations applying the Group C figures of the FDOT Manual to the data from the Tinter Study. These calculations are of questionable value since they, like the Tinter Study, apparently fail to take into account the possible addition of traffic lights on the relevant portion of Atlantic Boulevard. Mr. Sebo also testified that there would be no increase in level of service on a peak-hour basis for Atlantic Boulevard as a result of the Plan Amendment. He claimed that the calculations in the Tinter Study used a peak- season analysis which resulted in a much higher traffic volume than average annual daily traffic volume or peak hour measurements. He pointed out that the Study assumed that there would be a 15% growth in traffic over the three years of the study. This assumption of a 5% annual growth in traffic consisted of a 3% projection attributable to traffic growth with the remaining 2% coming from "committed development" traffic. Since the committed development traffic was factored into the Comp Plan's level of service determinations, Mr. Sebo contends that this 2% was double-counted in determining whether the Plan Amendment will result in a degradation of the level of service on Atlantic Boulevard. He also contends that the assumption of an annual 3% growth in traffic was probably overstated since the actual growth over the proceeding three years was much less than that. Mr. Keller confirmed some of these contentions. However, neither of these witnesses specifically addressed the increase in traffic on Atlantic Boulevard throughout the applicable planning periods set forth in the City's Comp Plan. Furthermore, it does not appear that either witness considered the possible need for a new traffic signal. Even with the clarifications provided by Mr. Sebo, there are some unexplained inconsistencies and/or ambiguities regarding the Tinter Study. For example, the Study assumes 5.92 trips per day per unit for the Oaks Tract development. Utilizing a formula set forth in the Institute of Transportation Engineer's Manual (the "ITE Manual"), this assumption would result in 7,131 trips per day. (7,131 = 1,196 x 5.92 + 51). Mr. Keller contends that 5.92 trips was probably excessive for a development like Oaks Tract. However, the ITE Manual sets forth the following trip generation projections: high-rise-4 trips per day per unit; garden apartments-6.8 trips per day per unit; townhouses-7.8 trips per day per unit; single family-10 trips per day per unit. As noted above, Oaks Tract, changed in 1986 or 1987 from all high-rise units to a mixed type of development comprised of single family detached homes, townhouses, garden apartments and high-rises. The Study's premise that the "[Apartment] category was selected as it has the highest trip generation rate of the various multi-family residential development categories listed in the [ITE] report" is apparently incorrect because townhouses are higher trip generators than apartments in the multi-family classification. Moreover, single family units, which are the highest trip generators of all, were not included in the analysis even though they will be part of the development. Thus, the Study arguably underestimated the number of trips. It should be noted that the county in its Comp Plan only considered 5,300 trips per day in calculating the committed traffic for Atlantic Boulevard from Oaks Tract. While the discrepancy between this figure and the calculations in the Study may be the result of the elimination of other access points, no clear explanation has been provided. The Study notes that peak hour traffic volumes were collected for the Study. However, no peak hour analysis was done for future traffic conditions. No explanation was provided in the Study as to why peak hour analysis was not done in accordance with Traffic Circulation Policy 02.05.2. As indicated above, at the hearing Mr. Sebo attempted to extrapolate a peak hour analysis from the information in the Study. This testimony was not persuasive because it did not take into account the possible addition of a new signal at the access point and/or at the turnpike interchange. Moreover, this testimony was not correlated with the evidence presented regarding the existing operating level of service for Atlantic Boulevard as calculated in accordance with the "trips model." At the hearing, DCA presented evidence that, subsequent to the adoption of the Broward Comp Plan, the operating level of service of Atlantic Boulevard as measured by the "trips model" has degraded from "D" to "E." This determination includes existing plus committed traffic. As noted above, under the "trips model", only 5300 trips per day from the Oaks Tract Subdivision were included as part of the committed traffic volumes. An addition of 1831 trips would further burden Atlantic Boulevard, which according to the evidence presented by DCA, is currently overcapacity and operating below its established level of service standard of "D." Neither Mr. Sebo's testimony nor any other evidence presented by the City specifically addresses this issue. In sum, because the Tinter Study did not adequately take into account impacts of adjacent development over the remainder of the planning period and did not analyze the impact of the Amendment in the context of the City and County's Comp Plans, it is not adequate to support the Amendment. The City's Response to the OCR did not adequately clarify the many questions raised by the Tinter Study. While the evidence at the hearing provided some elucidation, it still did not resolve all the issues. Consistency Issues DCA argues that the Amendment is internally inconsistent with several policies set forth in the City's Comp Plan. 1/ For example, DCA contends that the Plan Amendment is internally inconsistent with Traffic Circulation Policy 02.05.2 of the Comp Plan because the Tinter Study indicates that the change in the Traffic Circulation Network would lower the level of service of a portion of Atlantic Boulevard, an arterial road, to below the level of service standard of "D" adopted by that policy. As discussed above, the Tinter Study's reference to a deterioration in level of service was not predicated on the same methodology used in the Broward Comp Plan. Thus, there are some unresolved questions as to the actual impact of the Amendment on the level of service for Atlantic Boulevard. Accordingly, it is more accurate to conclude that the Amendment is not based on adequate data and analysis. In order to support the Amendment, the data and analysis should have demonstrated that the level of service as determined in accordance with the Broward Comp Plan would be maintained or improved. Alternatively, the City should have articulated a justification for lowering the level of service. Traffic Circulation Objective 02.03 of the City's Plan states: When reviewing development proposals, provide for minimal negative impacts associated with access point locations, and provide for safe and efficient on-site traffic circulation and parking, including provisions for handicapped users. The evidence in this case indicates the new access point may have a negative impact by lowering the level of service of a state road. While retaining the existing traffic circulation network could result in a deterioration of local roads or perhaps other state roads as Oaks Tract is developed, the choice between these two alternatives has not been fully explored and/or justified. Absent evidence that efforts have been undertaken to minimize negative impacts associated with the new access point, the Amendment, viewed in isolation, is inconsistent with Traffic Circulation Objective 02.03. Traffic Circulation Policy 02.05.01 of the Comp Plan states: Adopt the LOS standards as outlined and, for those facilities less than LOS "D", coordinate the designation of special transportation areas with the appropriate state, regional and county planning agencies. Under this policy, a special transportation area designation could have been adopted by the City if the level of service of Atlantic Boulevard will fall below "D". No such special transportation area is identified in the Amendment. The City's Comp Plan contains several other policies and objectives that may be contravened if the Amendment leads to the degradation of the level of service of Atlantic Boulevard. Traffic Circulation Policy 02.05.06 states: After January 1990, or when required by state statute, the City will only issue development permits for projects impacting links identified from Policy 02.05.05, under the following circumstances: . An approved traffic impact study shows that projected traffic conditions are not degraded below LOS "D" at project buildout. . There is an approved Action Plan accompanying the traffic impacts of the proposed development where an Action Plan refers to any combination of accepted transit, ride-sharing, transportation systems management methods, etc. of traffic impact mitigation. . The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Commission determines they will be under contract during the same fiscal year. . The necessary improvements to provide LOS "D" are included in an enforceable development agreement. Traffic Circulation Objective 02.07 states: Protect and obtain future rights of way necessary for transportation purposes. Traffic Circulation Objective 02.08 states: The City shall coordinate with the plans and programs of the Broward County Metropolitan Planning Organization (MPO), Broward County and the Florida Department of Transportation's Five Year Transportation Plan. Traffic Circulation Policy 02.09.04 states; Approve additional city development in concert with maintenance of the adopted level of service standard. The Amendment, viewed in isolation, is potentially inconsistent with Policy 02.05.06, Objective 02.07, Objective 02.08 and with Policy 02.09.04 because the development activity associated with the Amendment (vacating an existing right-of-way and creating an exclusive access to Atlantic Boulevard) may degrade the level of service for Atlantic Boulevard. The South Florida Regional Policy Plan is the regional policy plan which applies to the City. Public Facilities Policy 18.1.3 of the regional policy plan states: Encourage the use of mechanisms that provide incentives for development to use existing public facilities and services. Transportation Policy 20.1.7 of the regional policy plan states: Encourage the uses of transportation through management strategies to reduce the congestion and to maximize the use of existing transportation facilities. Transportation Policy 20.1.13 of the regional policy plan states: Local governments should adopt or amend their ordinances to protect or preserve transportation corridors and rights of way identified in local government comprehensive plans or in the state or regional plan. The Amendment, viewed in isolation, arguably conflicts with Public Facilities Policy 18.1.3, Transportation Policy 20.1.7, and Transportation Policy 20.1.13 because, rather than encouraging the use of, protecting and preserving an existing right-of-way, the City is eliminating it. The City has not demonstrated that any policies or goals of the regional policy plan will be achieved by the Amendment and/or that the Amendment would in any way further the South Florida Regional Policy Plan construed as a whole. State Comprehensive Plan Transportation Policy 20(b)3. states: Promote a comprehensive transportation planning process which coordinates state, regional, and local transportation areas. Contrary to Transportation Policy 20(b)3, there was no coordination of the City's action with the county or state transportation plans. Furthermore, the evidence does not reflect that any State Comprehensive Plan goals or policies will be furthered by this Plan Amendment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs submit this Recommended Order to the Administration Commission for entry of a final order determining that the subject plan amendment is not in compliance for the reasons set forth above. DONE and ENTERED this 2nd day of November, 1992, at Tallahassee, Florida. J. STEPHEN MENTON 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 2nd day of November, 1992.
The Issue Whether Respondent violated Sections 112.3143(3)(a), 112.3143(4), and 112.313(7)(a), Florida Statutes (1993), by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact All times pertinent to this proceeding, Respondent served as a member of the Mexico Beach Planning and Zoning Board (Zoning Board). Respondent began his service on the Board in mid-April, 1994. In that public position, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. In late 1993, Respondent contracted with the owners of Toucans Restaurant (Toucans) to build an additional story on the existing building. Toucans is a bar/restaurant located on Highway 98 in Mexico Beach, Florida. The Zoning Board is empowered to make decisions relative to zoning and rezoning matters, including the granting of parking variances. In furtherance of his work for Toucans, Respondent sought a parking variance from the Zoning Board. To this end, Respondent appeared before the Zoning Board on three separate occasions. The last time Respondent appeared before the Zoning Board regarding the parking variance for Toucans was April 19, 1994, shortly after his appointment to the Zoning Board. At that meeting, Respondent was representing Toucans before the Zoning Board and attempting to secure a parking variance for Toucans. At the April 19, 1994 meeting, when Respondent presented the Toucans parking variance issue before the Zoning Board, he participated in the Zoning Board's discussion of the matter. Prior to his participating in the Zoning Board's discussion of the Toucans matter on April 19, 1994, Respondent failed to formally announce his interest in the Toucan project. Respondent failed to file a written memorandum disclosing his interest in the matter prior to the April 19, 1994 meeting. Respondent failed to orally disclose the nature of his interest in the Toucans project at the April 19, 1994 Zoning Board meeting. At its April 19, 1994 meeting, the Zoning Board voted on the Toucans project. Respondent abstained from voting on the Toucans parking variance request at that meeting, but did not file a written memorandum disclosing his interest in the project within fifteen days of the vote. Respondent filed a Memorandum of Voting Conflict with respect to the Toucans parking variance request on May 27, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Final Order and Public Report be entered by the Florida Commission on Ethics finding that Respondent, Jim McCoullough, violated Sections 112.3143(3)(a), 112.3143(4) and 112.313(7)(a), Florida Statutes (1993), and imposing a civil penalty of $300.00. DONE and ENTERED this 30th day of April 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April 1997. COPIES FURNISHED: Eric Scott, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Kerrie Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Mr. James Naus 115 Fifth Street Mexico Beach, Florida 32410 Bonnie Williams Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether the application of Respondent Lewis for an Environmental Resource Permit to construct a finger pier qualifies for an exemption from the need to obtain such a permit.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Environmental Protection is responsible for administering the provisions of Chapter 373, and it is specifically responsible for issuing permits for the construction of docks in and over surface waters of the State of Florida. Sections 373.019(2); 373.026; and 373.413, Florida Statutes. Mr. Lewis applied to the Department for an environmental resource permit to construct a finger pier extending into a waterway known as Cypress Creek, which is classified as Class III Waters and is located on the Intracoastal Waterway in Palm Beach Gardens, Florida. According to the plans submitted with the application, the finger pier will be three feet wide, will extend thirty-six feet from the bulkhead into Cypress Creek, and will extend approximately twelve feet past the mean low water line. The plans show that the pier will be built on pilings and will consist of 108 square feet of surface area. The finger pier will be used to dock one boat and will be used as a private dock. When Mr. Lewis's application was initially reviewed, the Department assumed that Cypress Creek flowed over state-owned submerged lands. This assumption was reflected in the August 21, 1998, letter from the Department notifying Mr. Lewis that his proposed finger pier qualified for an exemption from the requirement for an environmental resource permit pursuant to Rule 40E-4.051(3)(b), Florida Administrative Code. The Department subsequently learned that Cypress Creek is an artificially created waterway, and, therefore, the land beneath the creek is not state-owned submerged land. Mr. and Mrs. Lewis own fee simple title to Lot 16 in Paradise Point, in Palm Beach Gardens, Florida. Petitioners Douglas Dedo and Kathy Crawford own Lot 17 in Paradise Point. Lot 16 is adjacent to Lot 17 but has no access to Cypress Creek. Mr. Dedo's and Ms. Crawford's predecessor-in-interest in Lot 17 conveyed to Mr. Lewis's predecessor-in-interest an easement over the westernmost twelve feet of Lot 17, "for purposes of ingress and egress to Cypress Creek and for docking purposes." 1/ The property owned by Petitioners Scott and Vicky Porter is Lot 4 of Cypress Creek Point, which abuts the easement on the west side. Mr. Dedo and Ms. Crawford have a marginal dock, that is, a dock which is roughly parallel to the shoreline, extending into Cypress Creek to the east of Mr. Lewis's easement. Mr. and Mrs. Porter have what is known as a "T-dock," extending into Cypress Creek to the west of Mr. Lewis's easement. The Porter's T-dock extends from the retaining wall eighteen feet into Cypress Creek. Water Quality The proposed finger pier will be constructed of wood, which will not adversely affect water quality. However, the proposed finger pier will be built on pilings, and the primary concern regarding the effect of this project on water quality is that the process of driving the pilings for the finger pier causes the sand to lift from the bottom of the waterway, causing turbidity, or cloudiness, in the water. The turbidity will be substantially mitigated for this project because the contractor will use turbidity screens to trap any sediment in the area where the pier is being constructed and around the pilings while they are being driven into the bottom of the creek bed. In order to construct the finger pier, it will be necessary to drastically trim, and probably destroy, two or three young mangroves that are growing on the creek bottom in front of the retaining wall on the western edge of the easement. In addition, it will be necessary to lightly trim a few other young mangroves adjacent to the proposed pier, but these mangroves should not be destroyed. Although mangroves contribute to good water quality, the effect of the destruction of two or three young mangroves on water quality in Cypress Creek would be negligible. Navigation In the area in front of Lot 17, the lot owned by Mr. Dedo and Ms. Crawford and on which Mr. Lewis's easement is located, Cypress Creek flows roughly east-and-west, with the entrance to the Intracoastal Waterway to the east of Lot 17. Just to the west of the easement, in front of Mr. and Mrs. Porter's property, the creek narrows and curves to the south. As a result of the narrowing of Cypress Creek in front of Mr. and Mrs. Porter's property, Mr. Lewis's proposed finger pier will not extend as far into Cypress Creek as the existing T-dock on the Porter's property. 2/ Most of the boats that pass the area where Mr. Lewis proposes to construct the finger pier are twenty-to-thirty feet long and have drafts from one-to-two feet. At mid-tide on May 12, 1999, the water was four feet deep in the center of the channel in Cypress Creek, directly in front of Mr. Lewis's easement. The measurement from waterline- to-waterline in front of the easement was ninety-three feet. The measurement from waterline-to-waterline in front of Mr. and Mrs. Porter's property at mid-tide on May 12, 1999, was sixty- eight feet. In navigating Cypress Creek, boaters curve toward the area where Mr. Lewis's pier will be located and, at low tide, "hug" the Porter's dock because of a shallow area which extends an undetermined distance into the creek from the north bank opposite the Porter's property. The water thirty-six feet from the bulkhead at the location of the proposed pier was four feet deep at low tide, as measured by Petitioner Dedo. At low tide, again as measured by Petitioner Dedo, approximately twenty-two feet of Mr. Lewis's proposed pier would extend over dry land, with approximately fourteen feet of the pier extending over the water. At low tide on May 13, 1999, as measured by Petitioner Scott, Cypress Creek was sixty-four feet wide from waterline-to- waterline in front of the easement. Therefore, boaters would have approximately fifty feet of water in which to navigate past the proposed finger pier. 3/ Flood control The proposed finger pier will not impede water flow through Cypress Creek and, therefore, will not adversely affect flood control. The pilings will be spaced twelve feet apart, and there will be no wave break or baffle or other impediment to water flow attached to the pier. Summary The evidence presented at hearing is sufficient to establish with the requisite degree of certainty that the three- foot by thirty-six-foot finger pier Mr. Lewis proposes to construct on the easement at the western edge of Lot 17 of Paradise Point will not violate water quality standards, impede navigation, or adversely affect flood control.
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 finding that the finger pier Larry Lewis proposes to construct on Cypress Creek in Palm Beach Gardens, Florida, is exempt from the requirement that an environmental resource permit be obtained in order to construct such a structure in and over the waters of the State of Florida. DONE AND ENTERED this 26th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 26th day of October, 1999.
The Issue Whether Respondent, a dentist, committed the offenses alleged in the second amended administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (AHCA), is the state agency charged with regulating the practice of dentistry pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 466, Florida Statutes. References to Petitioner in this Recommended Order include the Department of Business and Professional Regulation, which regulated the practice of dentistry prior to the creation of AHCA. Respondent is, and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0005929. Respondent's main area of practice is general dentistry. Respondent's last known address is his residence at 1205 Lincoln Road, Miami Beach, Florida 33139. At all times pertinent to this proceeding, Respondent lived at that address with his wife, Lisa Iver. Cocaine is a highly addictive central nervous system stimulant. Benzodiazepines, such as Valium and oxazepam, are central nervous system depressants that have the opposite effect of cocaine on the central nervous system. The usage of these two types of drugs by a cocaine user with medical knowledge may act to balance the visible and medically detectable effects of cocaine on the central nervous system. Since at least 1988, Respondent has been a cocaine addict. Various toxicology tests have reflected that he has taken a form of benzodiazepine following cocaine use. There are several factors that have worked to make Respondent's recovery more difficult. He has experienced severe marital problems, his mother was an alcoholic, and wife is also chemically dependent. The addiction recovery of one spouse directly affects the addiction recovery of the other. If one spouse falls off the wagon, the other spouse is very likely to fall out of recovery. The Physician's Recovery Network (PRN) is an independent program for monitoring certain impaired professionals, including dentists. PRN requires individuals to be evaluated and enter drug treatment, if appropriate, pursuant to a written agreement with the impaired practitioner. The PRN conducts random drug screens and provides for the exchange of information between the treatment programs, PRN, and the Petitioner for the protection of the public. The advocacy of PRN is designed to protect practitioners who have been offered the opportunity to receive care instead of discipline. The PRN program is confidential and not subject to public scrutiny. THE FIRST PRN CONTRACT - 1988 On or about March 12, 1988, Respondent was arrested as a result of a shooting incident involving his wife. Respondent was transported to South Miami Hospital due to his alleged cocaine abuse. Respondent was admitted to South Miami Hospital for substance abuse evaluation and treatment. During his evaluation and treatment at South Miami-Hospital, Respondent claimed a prior sedative overdose which required hospitalization at Mount Sinai Medical Center, allegedly due to his wife spiking his drink. During his evaluation and treatment, Respondent admitted to prior sporadic use of intra-nasal cocaine. Respondent also admitted to previously free basingcocaine, experiencing paranoia, and having other reactions from cocaine. Respondent refused a nasal examination. Detoxification was required and Respondent was diagnosed as possibly being addicted to cocaine. Respondent left South Miami Hospital against medical advice on March 15, 1988, two days after being admitted. Respondent was readmitted to South Miami Hospital on April 11, 1988. As a result of Dr. Iver's arrest in March 1988, and the recommendations of the doctors who evaluated him, the PRN was contacted. Respondent signed a Chemical DependencyContract with the PRN on or about May 23, 1988. On or about June 26, 1990, Respondent signed a Chemical Dependency Contract extending his monitoring for an additional three (3) years. On or about June 26, 1993, Respondent completed his PRN contract. AFTER THE FIRST PRN CONTRACT - SEPTEMBER 1993 On September 21, 1993, the PRN received multiple telephone calls from Ms. Iver stating Respondent was using "free base" cocaine. She later retracted this story and stated that she had spiked his food. On that date, Mrs. Iver filed a domestic violence complaint (#93-33887) against Respondent with the Miami Beach Police Department. An assault rifle, and other gun-related items were taken into custody by the police. The offense report states that the attack by Respondent on his wife was a result of an argument regarding his "narcotic use." The PRN ordered Respondent to submit to a professional evaluation. On September 24, 1993, Respondent was admitted to Mount Sinai Hospital for an inpatient evaluation. Dr. John Eustace was the evaluating physician. Dr. Eustace is board certified by the American Society of Addiction Medicine and is the medical director of the addiction treatment program at Mount Sinai. During that evaluation, Respondent tested positive for oxazepam and cocaine. As a result of the inpatient evaluation, Dr. Eustace formed the opinion that Respondent was in relapse and recommended that Respondent sign a chemical dependency contract with PRN and that he refrain from practicing dentistry until he had entered a recovery life-style. Dr. Eustace used the term "relapse" without regard to whether the ingestion was voluntary or involuntary. Dr. Eustace was of the opinion that Respondent did not have an adequate recovery program in September 1993 because he was no longer involved in the PRN monitoring program, he was not attending or actively involved in the twelve step program for recovering addicts. During the evaluation, Respondent admitted responsibility for having an inadequate recovery program. Dr. Eustace's diagnosis on Respondent's discharge were as follows: Chemical dependency, inactive by history. Chemical dependency relapse behaviors, active. Obsessive compulsive traits. Adult child of alcoholic mother. Co-dependent behavior. Dr. Eustace's specific recommendations for Respondent pertinent to this proceeding, made at a time Respondent and his wife were contemplating divorce and before she entered a treatment program, were as follows: Reinstitute a program of total abstinence. Enter into a second PRN contract with the length of time to be determined by the PRN staff. Recruit a home group of Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). Recruit a sponsor for the purpose of working the twelve steps. Attend ninety meetings of AA or NA within the next ninety days. Detach from his office practice until his drug screen had cleared and he had entered a life- style of recovery. Detach emotionally and physically form his wife. Turn all further matters concerning his divorce over to his attorney. Obtain a personal physician to avoid self- medication. Begin a professional relationship with a therapist knowledgeable about the adult child of an alcoholic syndrome, knowledgeable about the disease of addiction, and knowledgeable about co-dependency treatment. PRN, based largely on Dr. Eustace's evaluation, recommended that Respondent enter into a new contract for monitoring and to continue treatment. Respondent refused to sign a new contract. On or about December 16, 1993, PRN forwarded a letter of complaint to Petitioner. Dr. Roger Goetz, Director of PRN, noted that Respondent had a urinalysis which contained metabolites of cocaine and benzodiazepines and that Respondent refused to voluntarily enter PRN. No further action was taken against the Respondent at that time. JULY AND AUGUST 1994 On or about July 7, 1994, PRN informed Petitioner it had information from a confidential informant that Respondent was free basing cocaine. The allegations stated that Respondent appeared to be "coked" up and failed to show up at his dental office. Dr. Goetz, Director of PRN, believed that intervention might be possible through a Miami affiliate. On July 7, 1994, Dr. Jules Trop, a doctor with the Miami affiliate of PRN, evaluated Respondent. Respondent denied any drug use but refused to submit a urine sample for drug testing. Dr. Trop observed Respondent's appearance to be disheveled and his speech pattern strained. Dr. Trop expressed the opinion that Respondent was in need of professional help. On or about July 26, 1994, the Agency was informed by PRN that Respondent refused intervention by PRN. As a result of the foregoing, an Order Compelling Physical and Mental Examination was ordered by the Agency on August 15, 1994. The evaluation pursuant to the Order Compelling Physical and Mental Examination was conducted a week after the Order was served upon Respondent. On August 23, 1994, Dr. Hans Ueli Steiner, a psychiatrist, evaluated Respondent pursuant to the Order Compelling Physical and Mental Examination. Dr. Steiner formed the opinion that Respondent presented characteristics of an addict in denial and was a potential risk to his patients. Dr. Steiner believed that objective monitoring was the only reliable way to ascertain the continued sobriety of Respondent. Respondent admitted to Dr. Steiner that he had used drugs in the past. He further admitted that he was an addict. JULY AND AUGUST 1995 On July 28, 1995, police officers from the City of Miami Beach Police Department were called to the Iver residence in response to a 911 call. Upon arrival the officers observed drug paraphernalia commonly associated with free basing cocaine in the bedroom shared by Dr. and Mrs. Iver. Respondent had been free basing cocaine prior to the arrival of the police. The officers confiscated the paraphernalia, but took no further action against Respondent that evening. On Wednesday, August 2, 1995, at approximately 8:38 p.m., police officers with the City of Miami Beach Police Department were dispatched to the Iver residence because Mrs. Lisa Iver called 911 stating that her husband Robert Iver had overdosed on cocaine. The 911 tape reveals a voice in the background making a loud verbal noise. According to the incident report prepared by the Miami Beach Police Department, Ms. Iver told the police officers who came to the Iver residence in response to the 911 call that the Respondent had gone crazy and was out of control due to free-basing cocaine. Accompanied by professionals from the City of Miami Beach Fire and Rescue Unit, the police officers entered the Iver residence and found Respondent naked and covered in blood. Additionally, the police discovered broken glass along with a cocaine pipe, propane torch, a glass beaker, and a can that had been altered to accommodate the smoking of crack cocaine. The cocaine pipe, propane torch, and glass beaker are items or devices commonly associated with free basing cocaine and are similar to the items removed from the house on July 28, 1995. Respondent indicated to the police officers at the scene that he had been free-basing cocaine and stated that he had taken a "hit" off the pipe and then thought he was being attacked by three men. According to the Miami Beach Police Department incident report, Mrs. Iver stated that Respondent had been smoking a lot of cocaine and then requested that she sodomize him with a sexual apparatus. Upon refusing, he began punching her in the chest and kicking her. He also pulled her across the floor by her hair. Ms. Iver had physical injuries that were consistent with the reported abuse by Respondent. Respondent was arrested for battery as a result of this incident. During this police investigation, Mrs. Iver was wearing a bandage on her chin and had two (2) broken teeth. Mrs. Iver stated that the observed injuries were a result of her husband, Respondent, punching her two days earlier, on Monday, July 31, 1995 after an argument regarding Respondent's drug abuse. A police photographer was called to the scene by Officer Hochstadt. Color photographs of Dr. and Mrs. Iver and of the scene were taken by the crime scene technician. The photographer's report listed the investigation as a possible attempted suicide. The cocaine pipe, propane torch, and glass beaker were taken into custody by the police. Respondent was transported by the Fire and Rescue Unit to Jackson Memorial Hospital emergency room for treatment. The States Attorney's Office charged Respondent with two counts of misdemeanor battery and one count of misdemeanor possession of drug paraphernalia based on the events of August 2, 1995. On or about October 17, 1995, Robert Iver was found guilty of one count of use, possession, manufacture, delivery, or advertisement of drug paraphernalia, and one count battery, after pleading nolo contendre to each charge. Adjudication was withheld and Iver was sentenced to twelve months probation for each charge to run concurrently. Among the terms of his probation was the requirement that he participate in a PRN approved recovery program. The aforementioned crimes relate to the practice of dentistry or dental hygiene. 1/ THE EMERGENCY SUSPENSION ORDER - SEPTEMBER 15, 1995 On September 13, 1995, after reviewing the substance abuse history of Respondent and the foregoing police incident reports relating to drug usage in the middle of the workweek, Dr. Roger Goetz of PRN opined that Respondent is impaired and that his inability to practice dentistry poses an immediate and serious danger to the public health, safety, and welfare. This opinion resulted in an Emergency Suspension Order being filed on September 15, 1995. Respondent has been prohibited from practicing dentistry since that date based on that order. MISCELLANEOUS FACTS BASED, IN PART, ON THE STIPULATION Respondent, by and through counsel, on approximately February 15, 1994, proffered to the Agency that Respondent had submitted himself to numerous drug screens and all were negative for any controlled or illegal substances. No actual laboratory reports were produced. From approximately January 1994 to June 1994, the Petitioner actively cooperated with Respondent's counsel to negotiate a satisfactory resolution to the complaint. Respondent has, at times, denied his addiction to cocaine after numerous past positive tests, treatment and counseling. Respondent's enthusiasm about prior recovery attempts tailed off as he became more involved with his dental practice. Lisa Iver testified that she and her husband, Robert Iver, Respondent, were getting along better since entering the Mount Sinai program in September 1995, because they were currently both clean and off drugs. THE SECOND PRN CONTRACT - OCTOBER 20, 1995 On September 22, 1995, Respondent went to Dr. Eustace for the purpose of establishing a program of personal recovery, marriage and family recovery, and reentry into the PRN. Mrs. Iver also entered a recovery program at Mt. Sinai. On October 20, 1995, Respondent signed a new contract with the PRN. While Respondent asserts that he "voluntarily" entered into this contract, that characterization is inaccurate since he entered this contract after the entry of the ESO. The order of probation entered in the criminal proceeding, also signed October 20, 1995, required his participation in such a program. By signing this PRN contract, Respondent agreed that he would have random unannounced urine or blood screens, that he would abstain from using all mood altering substances, medications, alcohol and others, that he would be monitored by a physician, that he would notify the PRN if he changed his address or employment; that he was to attend a self help group such as AA or NA seven times per week; that he would receive continuing care in group therapy one time per week; that he would attend a twelve step program for recovering professionals; that he would notify the PRN in the event of a relapse; that he would agree to withdraw from practice at the request of the PRN if any problem developed; and that his wife would also enter a recovery program. In his present capacity, Dr. Eustace provides evaluations for the PRN. In this respect he sees his role as that of a servant for the PRN. He renders reports and recommendations to the PRN. The PRN relies with confidence upon Dr. Eustace's opinions and reports. Since October 20, 1995, the date Respondent signed a PRN contract, Dr. Eustace has been his monitoring physician within the program. While in the program, Respondent has undergone psychological testing, personal interviews and has otherwise complied with the terms of his PRN contract. Dr. Eustace found no evidence of any chemical relapse, Respondent's behavior is one of compliance with the PRN and he is participating in a monitored group and in a peer professional group. Both Dr. and Mrs. Iver are progressing satisfactorily. It is important to the recovery life-style of Respondent that his wife continue progressing satisfactorily in her recovery program. One important difference in Respondent's life-style prior to his signing the October 20, 1995, PRN contract and subsequent thereto is that his wife is seeking professional help for her addiction. On October 31, 1995, Dr. Eustace wrote to Dr. Goetz advising him that it was his opinion that Respondent is adhering to a recovery life-style, is in full compliance with PRN directives, is not a danger to the public or himself and that he can safely practice dentistry. Dr. Goetz acquiesced in Dr. Eustace's opinion in testimony before the Board of Dentistry in November 1995. Both Dr. Eustace and Dr. Goetz testified that in their opinions, Respondent can practice dentistry with safety and without danger to the public health, safety or welfare as long as he is being monitored by the PRN. Dr. Goetz further testified that there has been a "decent" period of time over which to monitor Respondent since his emergency suspension in September. Dr. Hans Ueli Steiner, who had evaluated Respondent in August 1994, expressed the opinion that Respondent was beyond hope. Dr. Steiner based this opinion on his one and one half hour conversation with Respondent in August 1994, on the testimony presented at the formal hearing, and on his observations of Respondent at a deposition and on the first day of the formal hearing. He did not review any medical records as he thought that they were not important. It was Dr. Steiner's opinion that Respondent was not safe to practice dentistry based primarily on the fact that Respondent had relapsed in 1993 and 1994 and therefore the PRN program was unsatisfactory for him. Dr. Steiner also questions Respondent's honesty and his commitment to recovery. Dr. Steiner disagrees with Dr. Goetz and Dr. Eustace and states that they are emotionally involved with his recovery. This emotional involvement, in Dr. Steiner's opinion, prevents them from giving an objective medical opinion. However, Dr. Eustace clearly stated that all of his opinions related to Respondent were based upon the professional relationship and were medical opinions. Dr. Goetz stated that he had never met Respondent until the Board's November 1995 meeting and has relied, in most part, on the opinions expressed by Dr. Eustace. There was testimony as to the dangers of a recovering addict. An addict may be sober one day and under the influence of an addictive substance the next. It is possible that even after signing a PRN contract and being monitored, the Respondent may relapse. It is also possible that if the Respondent falls off the wagon or falls out of recovery, he could harm a patient before PRN is notified and appropriate action is taken. It is also true that no one, including PRN, Dr. Goetz, and Dr. Eustace, can guarantee that the Respondent will not use cocaine, and no one can guarantee that Respondent is able to practice dentistry with reasonable skill and safety. The greater weight of the evidence established, however, that the PRN was developed to assist recovering addicts, that the program is as good as any of its type, and that the program works as long as the impaired practitioner is adhering to the terms of the contract. The testimony of Dr. Eustace and of Dr. Goetz on January 10, 1996, that Respondent is presently safe to practice dentistry and that he poses no danger to the public's health, safety or welfare is more persuasive than that of Dr. Steiner that Respondent is beyond help. This conclusion is reached, in part, because of Dr. Eustace's expertise, his extensive work with the Respondent, and because Respondent was able to practice without incident while being monitored by the PRN. It is also concluded that Dr. Eustace is in a better position than Dr. Steiner to evaluate Respondent's honesty and his commitment to recovery. The PRN program worked for Respondent in the past as he was able to safely practice between 1988 and 1993 when he was being monitored pursuant to a PRN contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent violated the provisions of Section 466.028(1)(c) and (s), Florida Statutes, which imposes an administrative fine in the amount of $6,000.00, which suspends his license to practice dentistry until September 14, 1996, which requires the PRN to attest at its Board meeting in August 1996 that Respondent has adhered to the terms of his PRN contract and that he remains capable of safely practicing dentistry, and which places his licensure on probation for as long as he practices dentistry in Florida. It is further recommended that the terms of his suspension and the terms of his probation require that he maintain a contract with the PRN at all times and that he strictly adhere to all terms of the PRN contract. It is further recommended that Respondent be reprimanded for these two offenses. DONE AND ENTERED this 2nd day of February 1996 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February 1996.
Findings Of Fact Petitioner, Frenchy's Rockaway Grill, Inc., is the owner and operator of a restaurant and alcoholic beverage establishment located at 7 Rockaway Street, Clearwater, Florida. Petitioner purchased the property in 1991. Michael Preston is president of Petitioner. Petitioner's establishment is immediately adjacent to the Gulf of Mexico and Clearwater beach on the west, to the north is a public parking lot, to the east is a motel, and to the south is the Clearwater Beach Hotel, which is owned and operated by Hunter Hotel Co., as indicated above. On the beach side of Petitioner's establishment there is an existing 972 sq. ft. wooden deck. The existing deck was initially constructed on or about 1987 by prior owners without receiving appropriate variance approvals. Subsequent alterations to the deck occurred between 1987 and 1991, also without appropriate variance approvals. In 1991 Charles and Ypapanti Alexiou/Anthony Alexiou, former owners of the subject property, filed an application for variance approval with the Board seeking three variances relating to the construction of the deck at the 7 Rockaway establishment. Specifically, the variances sought were: "1) 55.5 ft. to permit deck seaward of the coastal construction control line; 2) 15 ft. to permit a deck zero feet from a street right-of-way; and, 3) seven parking spaces to permit a 1,338 sq. ft. deck at 7 Rockaway Street, Miller's Replat, Lot 2 & vacated beach Drive on W and Lot 3, zoned CR 28 (resort commercial) & OS/R (open space recreation)." At public meeting on August 8, 1991, the application was considered by the Board. At that time Mr. Cline, as counsel for Hunter appeared in opposition to the application stating that approval of the variance requests would adversely impact the Clearwater Beach Hotel, that the request was for economic gain, that any hardship was self-imposed, and that development and traffic in the area was already heavy. The Board, however, granted the variance requests as to variances number 1 and number 2., and as to the third request, the Board denied the proposed 1,338 sq. ft. deck, but approved a variance of five parking spaces to permit the existing deck of 972 sq. ft. On or about July 13, 1993, a variance application was filed with the Board by Howard G. and Jean B. Hamilton and Palm Pavilion of Clearwater, Inc., seeking approval of four variances required for an 800 sq. ft. expansion of an existing deck at a restaurant at 10 Bay Esplanade, Clearwater Beach, Florida. The Palm Pavilion applicants were also represented by Mr. Cline. Like Petitioner's establishment, Palm Pavilion is a beachfront restaurant, which is located directly across the public parking lot to the north of Petitioner's establishment. Unlike Petitioner's establishment, Palm Pavilion is bordered by parking to the south and the east, and is not immediately adjacent to other buildings. On August 26, 1993, the Board granted the Palm Pavilion variance application for expansion of an existing beachfront deck with certain conditions. On October 6, 1994, Petitioner submitted its application to the Board requesting five variances required for a 650 sq. ft. expansion of the existing wooden deck at 7 Rockaway Street. Specifically, the variances sought were: 1) 13.22 ft. to permit a lot depth of 86.78 ft. where 100 ft. is required; 2) 8.2 ft. to permit it a rear setback of 6.8 ft. where 15 ft. is required; 3) 14 percent to permit 11 percent of open space where 25 percent is required; 4) three parking spaces to permit zero parking spaces where three additional are required; and, 5) 52.14 ft. to permit a structure seaward of the coastal construction control line. The subject property at 7 Rockaway Street is properly zoned CR-28 (resort commercial). Any scrivener's error indicating that the property is zoned OSC (open space recreation) has been corrected. Petitioner's restaurant, Frenchy's Rockaway Grill, is a popular beachside establishment. It is one of very few freestanding restaurants fronting the Gulf of Mexico on Clearwater Beach. Some patrons particularly enjoy dining on the open air deck adjacent to the beach. During peak hours, there is often over an hour's waiting time for tables on the deck. Petitioner is currently unable to accommodate the demand for seating on the beachside deck. Petitioner would sustain an economic benefit if more patrons could be accommodated on an expanded deck. Because of the size constraints of the lot and the establishment's location directly on the beach, development and improvement of the facility is highly restricted. The back of some residential rooms of the Clearwater Beach Hotel are immediately adjacent to the south of Petitioner's establishment. There are small bathroom windows from these residential rooms that face Petitioner's establishment. Petitioner's proposed expansion of the open air deck would place the proposed deck in very close proximity to the back of these residential hotel rooms. The City's staff reviewed the Petitioner's application and recommended approval with the following conditions: 1) the applicant shall obtain the requisite occupational license within 12 months; 2) the applicant shall obtain the necessary building permit within 6 months; 3) there shall be no outdoor entertainment and no outdoor speakers; 4) the applicant shall obtain the requisite alcoholic beverage separation distance variance from the City Commission. Petitioner agreed to the conditions recommended by staff. The recommendations of staff are not binding on the Board. In addition to the application for the five variances filed with the Board, Petitioner also filed a conditional use request with the Planning and Zoning Board. The conditional use request was approved on September 13, 1994, and imposed certain other conditions including the construction of a six foot wall on the south side of the proposed deck to buffer the adjoining hotel. Petitioner agreed to the conditions imposed by the Planning and Zoning Board.
The Issue The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner resides in Mebane, North Carolina. Sometime in April 2003, Petitioner requested the Board to release certain information that is public information within the meaning of Chapter 119, Florida Statutes (2003). Sometime in October 2003, the Board provided some of the information requested by Petitioner. The information included "scores, converted and raw and seat numbers of test applicants." Respondent did not include the "listed areas as agreed." The Board charged Petitioner $90.00 for providing "what they felt Petitioner should have," and the Board was "quite insulting about it." On a date not identified in the Petition, Petitioner asked a representative of the Board if the Board "currently" had an advertisement in the Florida Administrative Weekly concerning a "rule challenge that dealt with raw scores or scores in general." The representative stated there was no proposed rule change pertaining to scores. Petitioner asked for any and all data pertaining to scores as a rule change. The representative for the Board stated there was no such information to provide. At some time not identified in the Petition, Petitioner requested a copy of any records that "had been submitted" to the [B]oard pertaining to scores as part of a rule change. The representative of the Board repeated that nothing had gone before the Board pertaining to applicants sitting for the "Intern Test or the PE Exam." The Florida Administrative Weekly dated October 10, 2003, contains a proposed change to Florida Administrative Code Rule 61G15-21 that is directly related to Petitioner's "public information request." Petitioner believes that the Board had to approve the rule change before the Board advertised it on October 10, 2003, and that the previous denials by the Board's representative constituted "unethical" conduct. Petitioner requested a public hearing pursuant to the advertisement in the Florida Administrative Weekly on October 10, 2003, but doubts if the Board will comply with the "Florida Administrative Laws" based on what Petitioner believes to be the Board's "previous unethical behavior." The Board may be "in violation of The Florida Sunshine Law and the Florida Administrative Laws." The behavior of the Board's representative "in trying to deceive" Petitioner on this issue is "certainly a red flag" and indicates a necessity to notify all previous testing applicants to make sure they are aware of the proposed rule change before adoption. The Florida Administrative Weekly alone is not "a well read media for the general [sic] affected masses." Florida law states that any substantially affected person may seek an administrative determination of the invalidity of a proposed rule by filing with DOAH a petition seeking such a determination within 21 days after the date of publication of the notice required by Chapter 120, Florida Statutes (2003). Petitioner timely filed a petition challenging the proposed change to an existing rule. Petitioner believes the term "substantial" denotes "having a reasonable basis in law and fact" and that the term "reasonable" denotes "that which is fair, proper or moderate under the circumstances." Petitioner believes it is Respondent's "negligence in complying with FS 120, FS 119 that gives Petitioner standing in this case." Petitioner made a "public information request" sometime in July 2003. Respondent did not provide the information in the months of August and September 2003. In September 2003, Respondent requested Petitioner to pay $90.00 for release of part of the information requested by Petitioner. The information Respondent agreed to release included: statistical data broken down by race and sex identifying each applicant by assigned number and a list of the "number of applicants" who sat for the past five professional engineer exams; the number of times "testees" took the test; raw and converted scores; the "city of the testees"; and the race and sex of the "testees." When Respondent requested the payment of $90.00, Respondent failed to disclose that Respondent would not release all of the requested information. Respondent did not release the "testees' candidate numbers." There may be no statutory exemption for "testees' candidate numbers." Petitioner believes Respondent violated Chapter 119, Florida Statutes (2003), by exceeding the statutory time limit for releasing public records and by not releasing all of the information that Petitioner requested. Petitioner believes that Petitioner is entitled to all of the information she requested, asserts that it is a misdemeanor to violate Chapter 119, Florida Statutes (2003), and alleges that such a violation is grounds for removal or impeachment. Petitioner believes Respondent failed to grant Petitioner a public hearing in violation of applicable rulemaking procedures. During a conversation with a representative for Respondent concerning Petitioner's request for information, the representative failed to advise Petitioner of the proposed rule change advertised in the Florida Administrative Weekly on October 10, 2003. If the proposed rule change were adopted, "without credibly addressing the remaining issues of Petitioner's public records request," there may be no further opportunity to retrieve the data now in the possession of Respondent. Respondent accepted payment for the requested data, cashed Petitioner's check, and "arrogantly" released what information Respondent felt Petitioner should have. Counsel for Respondent advised Petitioner that Respondent would not cash Petitioner's check, but would return the check to Petitioner. Counsel for Respondent also threatened in a telephone conversation to advise Respondent not to grant the request and to require Petitioner to come to Florida and "go through the records" herself. Petitioner requested counsel for Respondent to put the requested information in "chart form." Counsel stated he would not advise Respondent to place the information in any particular format. Counsel was "extremely hostile and arrogant" and "later apologized for his behavior." However, Petitioner believes counsel for Respondent is "extremely hot tempered with certain people." Counsel for Respondent stated to Petitioner that Respondent would release the information "just as it is" in Respondent's database, and Petitioner could then put the information in any format she desired. That is "exactly what Respondent did. The information was extremely fragmented and difficult to read." Respondent had "no credible basis" for denying Petitioner the requested information. Petitioner believes that Respondent's action, "at best was deceptive and nonresponsive to Petitioner's inquiry." The trier of fact cannot summarize the next assumptive finding from Petitioner's response to the Motion to Dismiss, but must quote from the response. On October 16, 2003, Petitioner asked [Respondent's representative] via e-mail for the immediate release of all data whether electronic or written or telephonic messaging; and any and all communications between staff, and any other entity, person, corporation, business, governmental agency relative to the proposed change of scores, etc. Identify the date of origination of the proposed rule change and the reason for the proposed change. Please indicate any Board action on this issue and the date of Board action. Please include any supportive reports or data submitted to the Board to support or necessitate the need for a change in policy. Lastly, will the legislature need to act on your proposed rule change? As the e-mails will illustrate [the representative] continued to deny that any rule change existed pertaining to the very same public records request by Petitioner. The actions of [the representative] breached the public trust [and] eroded the fiber of 'ethics' in government. When Petitioner found the proposed rule change in the October 10, 2003, issue of the Administrative Weekly, [the representative] was listed as the contact person. Petitioner believes Chapter 120, Florida Statutes (2003), creates a two-pronged right to participation in the rulemaking process, i.e., "those [at] whom the intended action is directed and those who may just be affected by the new rule." Rulemaking procedures require notice to all persons named in the rule and to all persons who have timely requested notice. Respondent conducted its "rule change meeting in a closed meeting not open to the public." The records of that meeting are not available to the public. The Florida Administrative Weekly is not a well read publication for the "affected parties, directly affected parties, or the intended target parties." Therefore, Petitioner believes "in the spirit of open government, Respondents [sic] failed to meet the standard."
The Issue The issues to be resolved in this proceeding concern whether the City of Naples's (City) Waterway Marker Permit Application should be granted, given the requirements of Section 327.40, Florida Statutes (2005) and Florida Administrative Code Rule 68-23.105(1)(b)(3) through (6).
Findings Of Fact The Petitioner, Eric Alexander, is a resident of Collier County and a licensed boat captain. He is the owner of a charter boat business operating in Naples Bay, in Collier County waters. The Petitioner, Douglas Finlay is also a resident of the City of Naples and a recreational boater. He operates power boats and a kayak on the waters of Naples Bay involved in this proceeding. The Petitioner, James Pergola is also a resident of Naples and resident of Collier County. He is a recreational boater and uses the waters of Naples Bay for recreational boating purposes. He is also a homeowner, owning a home adjacent to Naples Bay. The Petitioner, Allen Walburn is a resident of Collier County and a licensed boat captain. He owns a charter boat business which operates in the waters of Naples Bay and Collier County. The Petitioner, Collier County, is a political subdivision of the government of the State of Florida. It operates a boat ramp and county park area on the waters of Naples Bay for use by its citizens and other members of the public. Its Sheriff Department employees patrol the waters of Naples Bay seeking to enforce relevant boating safety and other laws and ordinances. The Petitioner, Marine Industries Association of Collier County, Inc. (MIACC), is a non-profit association of businesses which are directly or indirectly involved in the marine industry on, or near the waters of Naples Bay. The members of the association and/or its customers use the waters of Naples Bay in the conduct of their businesses, employment, and for recreational boating and recreational and commercial fishing purposes. The City of Naples (City) is a unit of local government. It has authority to adopt the ordinance which triggered the dispute involved in this proceeding, based upon Section 327.60, Florida Statutes (2005). The City thus has authority to adopt ordinances regulating the operation of vessels on waterways within the jurisdiction of the City, so long as such ordinances or local laws do not conflict with the provisions of Chapter 327, Florida Statutes, and any regulations promulgated thereunder, or with other state or federal law. The City thus adopted the relevant slow speed, minimum wake boating restricted areas (slow speed zones) at issue in this proceeding. The Respondent, FWC, is an administrative agency of the State of Florida charged in pertinent part with managing the navigable waters of the state and with the consideration of waterway marker permit applications filed and arising under Chapter 327, Florida Statutes, and the related rules promulgated in Florida Administrative Code Chapter 68. The Intervenor, Conservancy of Southwest Florida (Conservancy), is a Florida non-profit corporation. Its purpose is the protection of the natural environment of Southwest Florida, including advocacy, education and research. The Intervenor, Citizens to Preserve Naples Bay (Citizens), is also a Florida non-profit corporation. Its organizational purpose is to preserve and protect the bay by actively supporting efforts it believes will further that mission. In arriving at its positions on issues affecting Naples Bay, Citizens considers questions of physical, chemical, biological, and navigational safety. The Waterway Marker Permit Application Naples Bay is a water body located within the boundaries of Collier County and the City of Naples. It is an inland water body connected to the Gulf of Mexico at "Gordon Pass." Near the seaward end of Naples Bay on its southerly margin is a connection with Dollar Bay, which extends southward of Naples Bay in the direction of Marco Island. Naples Bay contains a federally-maintained channel used for navigation and commerce. Naples Bay is both a destination and a transit waterway used by local businesses, citizens, and tourists for recreational, business, and commercial purposes. It is used for a wide variety of boating purposes and interests, including commercial fishing, commercial charter boat operations, recreational boating, and recreational fishing purposes, as well as by institutional/scientific users. There are already vessel speed zones established on portions of Naples Bay. The City of Naples, however, adopted ordinance number 04-10664 (the ordinance) creating the additional slow speed zones at issue in this proceeding. The ordinance, adopted on November 17, 2004, establishes new slow speed zones or minimum wake zones in portions of Naples Bay, Dollar Bay, and Gordon Pass. The ordinance was adopted under the authority of Section 327.60, Florida Statutes (2004), which allows a city to adopt ordinances regarding vessel operations on waterways so long as such ordinances or local laws do not conflict with the provisions of Chapter 327, Florida Statutes, or rules promulgated under that chapter. In order to implement the newly adopted slow speed zones the city applied for a Uniform Waterway Marker Permit (Permit) from the FWC on December 23, 2004, in accordance with Sections 327.40 and 327.41, Florida Statutes (2004), and Florida Administrative Code Rule 68D-23. Section 327.40, Florida Statutes, provides that: Waterways in Florida which need marking for safety or navigational purposes shall be marked [uniformly]. . . . (2)(a) application for marking . . . navigable water under concurrent jurisdiction of the Coast Guard and the division shall be made to the division. . . ." (Emphasis supplied). Section 327.40, Florida Statutes, was amended in 2000 to provide FWC with the authority to adopt regulations to implement that statutory section. Florida Administrative Code Rule 68D-23.105 was amended by the FWC in 2001, pursuant to the statutory purpose of determining which waterways need marking for safety or navigational purposes. Since the time of that amendment the Rule (Florida Administrative Code Rule 68D-23.105(1)(b)), concerning the criteria for approval of regulatory markers, now provides that a valid vessel traffic safety or public safety purpose exists for "slow speed minimum wake" speed zones under the following facts and circumstances: The Division shall find a valid vessel traffic safety or public safety purpose is presented for ordinances adopted pursuant to Section 327.60, Florida Statutes, under the following facts and circumstances: * * * (b) For a slow speed minimum wake boating restricted area if the area is: * * * Subject to unsafe levels of vessel traffic congestion. Subject to hazardous water levels or currents, or containing other navigational hazards. An area that accident reports, uniform boating citations, vessel traffic studies, or other creditable data demonstrate to present a significant risk of collision or a significant threat to public safety. * * * Fla. Admin. Code R. 68D-23.105(1)(b). The previous rules, prior to 2001, contained no similar factual criteria to those now found in the above-quoted rule. There are actually six factual criteria in the Rule, but only criteria four, five, and six, quoted above, are at issue in this proceeding, as stipulated by the parties. The FWC issued a Notice of Intent to grant the permit stating that the FWC's Boating and Waterways Section found that the criteria in their referenced rule had been met. See City Exhibit 26 in evidence. In arriving at this Notice of Intent to grant the permit application the FWC did not, however, independently make a determination or confirm that any of the factual circumstances referenced in the above Rule, and, specifically, subsections four through six of the Rule, actually existed. Rather, FWC assumed that all the statements in the application were true and issued the Notice of Intent to grant the permit. Standing Collier County is a political subdivision of the State of Florida. It expends county funds to provide for the patrol and regulation of safety on the waters of Naples Bay. It regulates Naples Bay through the patrolling of the Collier County Sheriff's Office. Section 125.01(j), Florida Statutes, grants the powers and duties to counties to "establish and administer programs of . . . navigation . . . and to cooperate with governmental agencies and private enterprises in the development and operation of such programs." Collier County also owns and operates the only county- owned boat launching facility on Naples Bay. Collier County citizens have the right to access and enjoy Naples Bay and the waters beyond Naples Bay through that access, including the Gulf of Mexico. Collier County has concurrent jurisdiction over Naples Bay and, like the other Petitioners, is concerned with recreation and enjoyment of use of the waterways of Naples Bay, including access to the Bay and adjacent waterways through traverse of the bay. The Petitioner, Eric Alexander is a resident of Collier County and has been for over 18 years. He is a licensed boat captain. He owns a charter boat business which operates in the waters of Naples Bay and adjacent waters in Collier County. He has recreational, commercial, navigational, and economic interests personal to him invested in the use of Naples Bay for both recreational and commercial purposes, as well as the access it provides to additional waterways. Naples Bay provides Mr. Alexander his only access to the Gulf of Mexico, where he takes his fishing charter parties in the conduct of his business. The proposed speed zones will have a substantial effect on his business and possibly his livelihood because the long transit times involved in the enactment of all the slow speed zones will tend to make his customers use charter boat businesses in other nearby areas that do not have to transit Naples Bay to reach fishing grounds, etc. His testimony of the substantial effect on his charter boat operations posed by the more pervasive slow speed zones was not refuted in the record. He established that his business will be substantially affected by the slow speed zones. The Petitioner, Douglas Finlay has resided in Collier County and Naples for over 10 years. He has been a recreational boater for that period of time. He has recreational and navigational boating interests in Naples Bay, including the access it provides to the Gulf and to additional waterways. He is particularly concerned that the proposed speed zone being moved from the protected area, out to the entrance to the Gulf at Gordon Pass, will adversely impact boating safety. The slow speed zone at that point will adversely impact safe boating operation because sufficient power and steerage provided by higher speed must be maintained to safely navigate the sometimes difficult wave, current, and wind conditions at the entrance to the Gulf. Mr. Finlay is directly affected in terms of his recreational boating and navigational interests by the imposition of the slow speed zones at issue. In terms of this concern, as well as, generally, the resultant long transit times through Naples Bay. The Petitioner, James Pergola resides on the waters of Naples Bay by owning a home on a canal that communicates with the bay. He has been a resident of Collier County for more than 29 years and is a recreational boater. He uses the waters of Naples Bay for all purposes related to recreational boating, including simply operating his boat on and traversing the bay when bound to other locations, as well as for fishing. The proposed speed zones will adversely affect the recreational boating use and trips Mr. Pergola takes on the waters of Naples Bay by substantially increasing transit times through the waters of the bay, a restriction he deems unnecessary from a safety standpoint. The Petitioner, Allen Walburn is a licensed boat captain and owns and operates a charter boat business. He conducts his charter boat operation in Naples Bay and adjacent waters of Collier County and the Gulf of Mexico. He has been a resident of Collier County since 1977. Mr. Walburn has commercial and economic interests which are intertwined with his navigational interests in operating his vessels in the waters of the bay. The restrictions at issue would adversely affect his access and the time of access through the waters of the bay, to additional water ways and to the Gulf. The proposed speed zones, and their adverse effect on transit times through the bay will adversely affect Mr. Walburn's charter boat business. Some days he will not be able to operate two charters in one day, which will substantially reduce his revenue. Additionally, his charter boat customers over time will tend to migrate to charter boat businesses that operate in areas other than Naples Bay and which don't have the attendant long transit times in reaching fishing grounds caused by the proposed speed zones. Thus, the Petitioner Walburn is substantially affected by the proposed permit regarding the slow speed zones, in terms of both his recreational and commercial navigational interests and economic interests related to vessel operations in the waters of Naples Bay. The MIACC is a non-profit trade association. Its members are made up of businesses which directly or indirectly operate in or are related to the marine industry in the vicinity of Naples Bay. Membership in the MIACC includes 60 or more businesses or persons located in Collier County. The members consist of recreational boaters, marina operators, yacht brokers, boat dealers, boat yards, marine construction contractors, marine professionals and charter boat businesses. The association members rely upon reasonable access and reasonable transit times to and through Florida waters and, in particular, Naples Bay. This is important to their engagement in commerce, including the selling, servicing, and maintenance of boats, marine contracting, charter fishing and general recreational boating. The members' market for their products and services, their revenues and the costs of their doing business depends substantially on reasonable public access, transit and safe use of the navigable waters in Naples Bay and the use of adjacent waters, which requires Naples Bay transit. Members of MIACC have lost some business in potential sales of boats and boat slip rentals, from customers who have elected not to locate boats or operate boats in Naples Bay because of the inconvenience caused by the speed zones. These additional speed zones have had the effect of discouraging recreational boating members or potential recreational boaters from boating on Naples Bay. At least one MIACC member has experienced several previous boaters placing their vessels with him for sale, ending their Naples Bay boating activities in the belief that the slow speed zones are, or soon will be, placed into effect. The members of MIACC will incur additional time and costs in conducting sea trials of boats they are placing into service or repairing. The proposed slow speed zones leave only a small area of Naples Bay where boats are allowed to exceed slow speed. Consequently, the proposed slow speed zone will force all boat testing to occur in one small area of Naples Bay. That fact alone will create more congestion and possibly a safety issue in that more confined small area of the bay. It will render more difficult the operation of the members' businesses, which are involved in testing boats and boat engines, and other operational systems of boats, when placed into service as part of a new vessel or when performing repair work on vessels. MIACC and its members' ability to navigate and conduct commerce in Naples Bay will be impeded by the proposed slow speed zones. They will substantially increase the time for fishing charter members to navigate to, from, and between fishing locations and will increase the time for recreational fishermen members of the association to navigate to and between their fishing grounds as well. The proposed slow speed zones will affect MIACC members by causing additional vessel congestion caused by excessively slow speeds over a longer distance, thereby potentially creating a safety issue. An additional and somewhat different safety issue will occur because the slow speed zones will reduce the maneuverability of the vessels moving at slow speeds, a different kind of safety issue than caused by vessels moving at excessive speeds, in terms of steerageway on slow moving vessels and the vessels ability to avoid collisions. The proposed speed zones will affect the members traversing Naples Bay by slow speeds increasing the risk of dangerous weather conditions. The corporate purpose of MIACC is to: represent and educate recreational boating citizens and members of the marine industry and its workforce in the promotion and protection of recreational boating as a traditional family and business past- time and element of commerce. It seeks to promote boating both commercially and recreationally as a source of business activity and tourism. It seeks to protect and enhance the environmental circumstances of Florida waterways. See MIACC Exhibit 26 in evidence. Its purposes are further to promote improved conditions on the waterways of Collier County generally, and improved operating conditions for recreational boating and the commercial boating industries as well. The interest of MIACC and its members in both commercial and recreational boating pursuits will be substantially affected if the relevant slow speed zones are enacted which would pose a significant restriction beyond the limitation already prescribed by state and local law. This is because access to fishing and recreational areas will require longer travel time, with more areas of interest to the boating public eliminated from reasonable use. This will have a negative effect on the manufacture, sale, chartering, docketing, equipping, servicing, maintenance, and operation of boats on the bay and adjacent waterways. The Intervenor, the Conservancy, is a Florida non- profit corporation organized in 1966 headquartered in Naples, Florida. Its purpose is the protection of the natural environment of Southwest Florida, including through environmental advocacy, education, and research. The Conservancy has approximately 4,100 members in Collier County. The Conservancy has conducted scientific research in Naples Bay for more than 20 years in support of its mission. It published the Naples Bay study in 1979, which was one of the first comprehensive studies of that estuary system. That study, and the research conducted by the Conservancy since, involves sampling of water in Naples Bay, primarily to monitor the water quality. Those samples are taken throughout the bay by the Conservancy staff, as well as volunteers. They usually employ a 14-foot Carolina Skiff type fishing boat to perform this work. During the course of its boating experience, conducting its sampling efforts in the bay, the Conservancy staff has encountered boat wake conditions which it believes threaten the safety of the small boat and its occupants which it uses for water sampling. It attributes those threatening boat wakes to the currently permitted boat speeds on Naples Bay and believes that slower boat speeds on the bay would make its research on the bay safer. The Intervenor, Citizens, was incorporated in 1988 as a Florida non-profit corporation. Its primary mission is to preserve and protect Naples Bay by actively opposing any projects or efforts which it believes will adversely affect the bay and by actively supporting projects or efforts it believes will help to preserve or improve the bay. Citizens considers the physical, chemical, biological, and navigational safety questions involved, in matters concerning the bay, upon which it decides to take a position. Citizens has been involved in issues regarding Naples Bay over many years, including the Naples Bay Project Committee upon which its president, Harry Timmons, sat by appointment. That committee investigated Naples Bay safety and made recommendations to the Naples City Council regarding vessel traffic congestion and vessel speed zones. Some 352 citizens members own homes on Naples Bay or on channels or canals connected to the bay. Both Mr. Timmins and Kirk Materne, members of Citizens, have taken positions before the Naples City Council on a number of occasions concerning issues regarding vessel speeds on Naples Bay. Affidavits, introduced into evidence as corroborative hearsay, support the testimony adduced by Citizens to the effect that there are members in addition to Mr. Timmins who own and operate boats on Naples Bay and are affected in some way by the issues concerning boating safety and boating speeds on Naples Bay. Both Mr. Timmins and Mr. Materne are boaters and have operated their boats on Naples Bay for many years. Levels of Vessel Traffic Congestion (Florida Administrative Code Rule 68D-23.105(1)(b)(4)) The applicant City presented the testimony of expert witness Andrew Anderson. Mr. Anderson is a Marine Consultant. Mr. Anderson is a graduate of the Coast Guard Academy and retired from the Coast Guard with the rank of Commander. He served as a boating and safety officer while in the Coast Guard and was certified as a 1,600 ton vessel master. He has captained vessels of varying sizes during his Coast Guard tenure. He has published articles and lectured on boating safety and has been recognized as an expert in boating safety, seamanship, and boating accidents in state and federal courts. He reviewed the City's exhibits, the depositions in this case, boating citations, accident reports, and Coast Guard commission records in preparing for his testimony. Mr. Anderson believes congestion is any situation with a sufficient number of vessels within a certain geographic area and, given the speeds at which they are operating, that there will be a risk of collision if any operator makes a mistake. He described an example he believed constituted congestion around marker 18, where four boats were coming into close proximity of each other, creating an "unsafe condition." Naples Bay's configuration more resembles a wide river than a bay. It is approximately 4.4 miles from marker seven, at the Gulf entrance to the bay, east and northeast to U.S. 41, the most inland extent of the bay. The bay is approximately one- quarter mile wide at its widest point. When Mr. Anderson observed conditions in Naples Bay by traversing it or a portion of it, he observed only approximately 20 to 30 boats. This was on a Tuesday afternoon for approximately two hours, some two weeks prior to the hearing; not as active a day for boating as would be a weekend day or a holiday. Mr. Anderson opined that he felt, "there is a problem with vessel traffic congestion, particularly at speed of 30 miles per hour." He believes that "the higher the speed, the fewer the vessels it takes to have a congested situation." Thus Mr. Anderson expressed the view that Naples Bay was subject to unsafe levels of vessel traffic congestion. The basis for his opinion, however, was a mere two hours he spent on Naples Bay on that Tuesday afternoon shortly prior to the hearing. Although he has a great deal of boat safety and operation expertise, as described above, he had not previously navigated Naples Bay for over 30 years until retained as an expert witness by the City. During his two-hour tour of the bay, he found the bay to be congested and yet only saw 20 or 30 boats. Mr. Anderson conceded that the limited question that he was hired by the City to answer for this proceeding was "would the ordinance improve the safety of the boating public on Naples Bay?" He stated that it was his opinion that the ordinance would improve public boating safety. He also conceded that an idle speed zone on the entire Naples Bay (not proposed by the City in the ordinance or the permit application) would also improve safety, implicitly even more. He did not concede, however, that such an idle speed zone restriction for the entire bay would be appropriate. Other subjective testimony, offered by the Petitioners, concerning assessment of vessel traffic congestion was provided by a number of witnesses who collectively have spent thousands of hours in navigation of Naples Bay at various times of the day, week, and year. Those witnesses, such as Captain Alexander, with more than 1000 hours per year navigation of Naples Bay; Captain Walburn, with more than 30 years operating on Naples Bay; Police Officer Ayers, who patrolled the bay five days a week for the last three years; and the Petitioners Pergola and Finlay, collectively testified that it was their opinion that the bay was not subject to unsafe levels of vessel traffic congestion. Objective evidence concerning vessel traffic congestion and representing an objective standard therefor, was presented by Petitioner MIACC's expert witness, Dr. Ed Baker. Dr. Baker has extensive site-specific knowledge of Naples Bay as he has previously conducted two vessel traffic surveys of the bay. These surveys analyze traffic patterns, numbers of vessels navigating the bay, and the inventory of vessels with access to the bay. His previous two studies were based on the level of service methodology (LOS) similar to that used with studies of automobile traffic. The LOS methodology was first employed and used in Naples Bay in a study by Heniger and Ray, Inc., a consulting firm commissioned by the City of Naples to measure boat capacity on Naples Bay. The LOS methodology is used to measure the capacity of a system, in this case Naples Bay, and the demand for its use of that system. The LOS for any particular system is an "indicator of the extent or degree of service provided by a system," and it indicates the capacity per unit of demand for the facilities. This methodology showed the carrying capacity of Naples Bay to be 528 vessels per hour (this is aside from the question of what level of congestion that represents). In a roadway transportation system, the relationship between road capacity and the number of vehicles on the road is described by letters A to F. Each letter represents a range of vehicles using the road in comparison to the road capacity. The A through F LOS categories are based on several operating conditions, such as traffic flow, number of vehicles, speed, and maneuverability. See MIACC Exhibit two in evidence. The Heniger and Ray study applied the same LOS methodology to boat traffic on Naples Bay. The Heniger and Ray study, as well as Dr. Baker's studies, defined A to F LOS categories as follows: Level A - represents a free flow condition in which there is little to no restriction on speed or maneuverability; Level B - a zone of stable flow but the presence of other boats begins to be noticeable. Freedom to select speed is relatively unaffected; Level C - a zone of stable flow; speed and maneuverability becomes affected at this level as a result of other boats; Level D - usually a stable flow of traffic, but a high density of boats cause significant restriction on speed and maneuverability; Level E - traffic in an unstable flow representing conditions at or near capacity of the system with speeds and maneuverability severely reduced because of congestion; Level F - traffic in an unstable flow with speed and maneuverability extremely limited by severe congestion; frequent occasions of no forward progress. Each level of service category is defined by increasing values of the volume to capacity ratio, such that LOS A described the situation where up to 15 percent of Naples Bay's carrying capacity is using Naples Bay. Therefore, under LOS A, up to 79 boats per hour would be using Naples Bay. LOS B would describe a situation where up to 27 percent of Naples Bay's carrying capacity LOS is using Naples Bay or 143 boats per hour. LOS C would describe a situation where up to 43 percent of Naples Bay's carrying capacity LOS is using Naples Bay or 228 boats per hour. LOS D would describe up to 64 percent of the carrying capacity, or 338 boats per hour using Naples Bay. LOS E would then equate up to 100 percent of the carrying capacity or up to 528 boats per hour using the bay, and LOS F would describe a situation where boats would exceed the carrying capacity or more than 528 boats per hour resulting in gridlock. The LOS methodology is an objective method by which to analyze vessel traffic on the bay established by the testimony and evidence elicited through Dr. Baker, as well as Dr. Staiger. Dr. Baker's initial Boat Traffic Studies and Models conducted in 1999 and 2002 concluded that at peak times Naples Bay is at an LOS A or B level on 10 out of 13 segments of the bay. Of the remaining three segments, at those times, the LOS level was C. Prior to the hearing in this case, Dr. Baker again conducted a study and survey of the bay to assess the current boat traffic situation. He described that his recent 2005-2006 analysis showed that the LOS for the bay during a weekend in September 2005, and a holiday weekend in January 2006, was at an LOS A or B level. It is noteworthy that the Collier County Manatee Protection Plan adopts LOS C as the acceptable level of service for Naples Bay. The Naples Bay boat traffic studies and Dr. Baker's testimony indicate that there is no unsafe level of vessel traffic congestion on Naples Bay. Major Paul Ouellette of the FWC, testified as to his finding that the permit application with its supporting documentation, and additional data, was insufficient to allow him to conclude that the new speed zones were warranted based upon an unsafe level of vessel traffic congestion. The City of Naples Marine Unit Officer who testified, Russ Ayers, has over three years of daily patrolling experience on Naples Bay. He found that Naples Bay is not subject to unsafe levels of vessel traffic congestion. The Naples Bay traffic studies, including those of Dr. Baker and Dr. Baker's testimony, are more objective in terms of applying an objective standard and methodology. The methodology is deemed to be acceptable for practioners and by practioners in Dr. Baker's field of expertise. Because of the more extensive opportunity for observation of Naples Bay and its boat traffic and boat numbers, this testimony and evidence and that of Major Ouellette, Officer Ayers and the Petitioners Alexander and Walburn, is deemed more compelling, credible, and persuasive, than that offered by Mr. Anderson, Mr. Timmins and other evidence offered by the City or Intervenors. Safety concerns caused by boat wakes, boat speeds, and careless, discourteous or illegal operation by boat operators, which cause safety hazards, or fears of safety hazards, do not equate to unsafe levels of vessel traffic congestion. The preponderance of the persuasive evidence establishes that Naples Bay is not subject to "unsafe levels of vessel traffic congestion." Hazardous Water Levels, Currents or Other Navigational Hazards (Florida Administrative Code Rule 68D-23.105(1)(b)(5)) The Respondents and Intervenors contend that the proposed slow speed zones are needed in the Naples Bay area because of hazardous water levels, currents or that the area contains other navigational hazards. The City seems to contend that boats which are accelerating or decelerating upon leaving or entering the existing slow speed zones themselves constitute "navigational hazards." While the term "navigational hazard" is not defined in the statutes or rules at issue, it has been defined by the U.S. Coast Guard in terms of "hazard to navigation" as "an obstruction, usually sunken, that presents sufficient danger to navigation so as to require expeditious, affirmative action such as marking, removal, or re-definition of a designated waterway to provide for navigational safety." 33 C.F.R. § 64.06 (2005). A "navigational hazard" within the meaning of Florida Administrative Code Rule 68D-23.105(1)(b)(5) equates in meaning to be the same as a "hazard to navigation" treated in the above federal rule related to the Coast Guard's jurisdiction. While boats operating under power might, under certain circumstances, (chiefly improper, careless, discourteous, or illegal operation,) be dangerous to the safety of other boaters or users of a waterway, they do not comport with the generally accepted sense of what "navigational hazard" means. It means a fixed object which poses a hazard to navigation of any or all boats operating under power or sail or human propulsion; examples being a sunken vessel, an oyster bar, a shoal, a stump or any other object which might pose a danger if struck by a moving vessel. Some witnesses, such as Captain Walburn, Dr. Staiger, witness Davis, and witness Timmins described such factors as a dock in the channel (encroaching somewhat apparently) between marker 21 and marker 23, narrow or serpentine portions of the Naples Bay Channel, and strong tidal currents in several areas, There is no persuasive evidence, however, to show these are anything other than normal physical complications to be contended with by a reasonably prudent mariner, operating a vessel in the areas in question. They do not pose hazardous conditions, in terms of water levels, currents, or navigational hazards. Thus, there is no preponderant, persuasive evidence that the area of the proposed slow speed zones includes any areas that are subject to hazardous water levels, currents, or contains other navigational hazards. This is established by the testimony of Officer Ayers, among others. Major Ouellette established with his testimony that the permit application with supporting documentation and additional data he reviewed was not sufficient for him to be able to conclude that the new speed zones were warranted because of the area being subject to hazardous water levels, currents, or because it contains other navigational hazards. Thus the preponderant evidence demonstrates that the proposed slow speed zones are not for areas that are subject to these hazardous factors. Whether there is a Significant Risk of Collision or a Significant Threat to Public Safety as Demonstrated by Accident Reports, Boating Citations, Vessel Traffic Studies, or Other Creditable Data Florida Administrative Code Rule 68D-23.105(1)(b)(6) The City adduced testimony from its expert witness, Mr. Anderson, as well as its other witnesses, as did the Intervenors, to the general effect that slowing of boat speeds on Naples Bay would render the bay safer for boat operation and traffic. Such testimony from Mr. Timmins and others, recounted anecdotal incidents where boating accidents occurred. Several of these caused injuries, boat damages, threw boating passengers out of their seats, on one occasion swamped a small boat, and caused another boat to take on water, due to excessive boat wakes of passing vessels. Mr. Timmins has boated on the bay for many years and does not feel safe or comfortable at certain times and in several areas in the bay. He described two places where the channel is significantly narrow and where he described what he felt were unsafe conditions caused by converging boat traffic, such as at the convergence of the Naples Bay channel with the channel entering into Dollar Bay. It is logical to assume that if boat speeds could effectively be substantially reduced or possibly the horsepower of boats or the size of boats using Naples Bay could be drastically reduced, or the numbers of boats using the bay substantially decreased, that Naples Bay could be rendered "safer." However, rendering Naples Bay simply "safer" is not the factual showing required by the above-referenced rule (or the legal standard imposed by it in order for the FWC to issue the waterway marker permit). Rather, the above-referenced sources of information, described in the rule, must demonstrate a significant risk of collision or a significant threat to public safety in order to demonstrate a need for the imposition of the slow speed zones. Accident Reports The MIACC entered its Exhibit 31 into evidence. Exhibit 31 is a summary chart analyzing vessel accidents occurring in Naples Bay between the years 2000-2004. It was prepared by the FWC. Major Ouellette of the FWC, in his expert opinion, concluded that while a total of 17 vessel accidents occurred over that approximate five year period, only four of them could be relevantly linked in their cause and effect to the boat speeds involved, such that new slow speed zones might have prevented those four accidents (assuming the operators involved were complying with the regulation). Indeed, most accidents occurred with vessels already operating in existing slow or idle speed zones or attempting to dock. The evidence adduced by the City and the Intervenors referenced individual reports of some eight accidents occurring over the five-year period, which they maintain are relevant, such that new slow speed zones might have prevented the accidents. Dr. Baker performed an analysis correlating the number of accidents to the number of vessel trips taken in Naples Bay, however. Dr. Baker's analysis using the eight accidents contended to be relevant by the City and the Intervenors, rather than Major Ouelette's finding of four relevant accidents, determined that there was one boat accident for every 67,500 boat trips in Naples Bay during that period of time. One accident per 67,500 boat trips does not establish a significant risk of collision or significant threat to public safety in Naples Bay predicated on the accident reports. Eight accidents over a five-year period is not a "significant risk of collision or significant risk to public safety." The City of Naples Police Department's Marine Unit is charged with enforcing regulations on Naples Bay. It monitors and compiles reports of boating accidents and makes yearly summaries thereof. If the Marine Unit identifies or experiences a significant risk of collision or threat to public safety due to accidents, then additional enforcement action will be taken such as dispatching additional officers to patrol the bay, changes in their schedules or other efforts to reduce the risk or threat concerning collision or public safety. No such action has been taken by the Marine Unit in terms of additional enforcement efforts because, as established by Lt. Traczyk, it experienced no significant risk of collisions or treats to public safety. If such additional enforcement actions were taken and they did not successfully reduce the risk of collision or threats to public safety, the police department's Marine Unit would inform its superiors, such as the chief of police or other officials, that additional measures, such as more stringent regulations, were needed. The City police department, through Chief Moore, however, has not informed or notified the City manager, City counsel or other City officials that additional regulations were needed to address any safety issues on Naples Bay. It did not deem such issues to be significant enough. No Marine Unit Officers have informed their commanders that safety issues existed on the bay because of accidents or congestion of boats. The police department therefore has never suggested or recommended additional speed zones because of accidents or vessel traffic congestion or significant risk of collision or threats to public safety. Major Ouellette established, with his expert testimony, that the accident data did not demonstrate "a significant risk of collision or significant threat to public safety." Thus, the preponderance of persuasive evidence regarding accident data and experience on Naples Bay does not demonstrate that a significant risk of collision or significant threat to public safety exists on the bay. Boating Citations An analysis of the boating citations found approximately 180 citations issued per calendar year for the bay. The vast majority of these citations were issued for vessels violating existing slow speed or idle speed zones. Since the vast majority of citations are issued for violators operating their vessels in existing slow speed, minimal wake or idle speed zones it cannot logically be concluded that the addition of speed zones would reduce boat operators' violations of boating speed limits, whether of the present ones or those proposed. Thus, it has not been established how the fact of the boating citations, in evidence, served to demonstrate a significant risk of collision or a significant threat to public safety, implicating a need for additional speed zones. The fact of the boating citations may demonstrate an enforcement issue or a boat operator education issue, but they do not demonstrate a need for additional speed zones. In fact, to the contrary, Major Ouelette, in his expert opinion, which is accepted, established that boating citations were insufficient to support a conclusion that new slow speed zones were needed. Vessel Traffic Studies As found above, Dr. Baker's testimony and his vessel traffic studies and analysis demonstrate that Naples Bay is operating below its capacity and essentially at LOS A and B. Thus the vessel traffic studies in evidence do not demonstrate "a significant risk of collision or significant treat to public safety" on Naples Bay. Whether "Other Creditable Data" Represents a "Significant Risk of Collision or a Significant Threat to Public Safety" The City's expert witness, Andrew Anderson, opined, based upon his review of the permit application and its supporting data, coupled with only a two-hour observation and experience of conditions on Naples Bay, that the areas proposed for the pertinent speed zones did present a significant risk of collision or significant threat to public safety. The City's own Marine Unit police officer, Russ Ayers, has had more than three years' experience of daily patrols on the water on Naples Bay. He found no significant safety issues on Naples Bay, nor any significant risk of collision or threat to public safety on the bay. Additionally, the Petitioner's witnesses, Police Chief Moore and Lt. Traczyck, determined that there were no significant safety issues on Naples Bay and that a significant risk of collision or of a threat to public safety did not exist. These witnesses established that if the Police Department Marine Unit personnel identify or observe a significant risk of collision or threat to public safety then additional enforcement action or additional regulation would be taken, as found above, in order to alleviate the risk. The Marine Unit has not seen fit, due to its observances, to embark on such additional enforcement actions. Additionally, two Collier County Sheriff's Department Marine Unit Deputies, Rocco Marion and Joe Scalora have extensive experience operating and observing boat traffic and Marine conditions on Naples Bay. They have found no significant risk of collision or significant threat to public safety on Naples Bay. Because it was based upon thousands of hours operating vessels on Naples Bay, at all times of the day, week and year, the testimony of Capt. Alexander established that the bay does not experience a significant risk of collision or threat to public safety. His testimony is corroborated by that of Major Ouelette, as found above. In summary, the testimony and evidence adduced by the Petitioners is more credible, persuasive, and compelling than that of the Respondents and Intervenors. It is accepted as the most "creditable data" in establishing that the proposed slow speed zones are not in areas where accident reports, uniform boating citations, vessel traffic studies, or other creditable data demonstrate a significant risk of collision or significant risk to public safety.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: that a final order be entered by the Florida Fish and Wildlife Conservation Commission denying the subject waterway marker permit. DONE AND ENTERED this 22nd day of December, 2006 Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006. COPIES FURNISHED: Elise M. Matthes, Esquire Captain Allen Richards, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Frank E. Matthews, Esquire Kent Safriet, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314-6526 Douglas Finlay 3430 Gulf Shore Boulevard North, No. 5H Naples, Florida 34103-3681 Jeffrey A. Klatzkow, Esquire Colleen M. Greene, Esquire Collier County Attorney's Office 3301 East Tamiami Trail Naples, Florida 34112-4902 Allen Walburn 678 14th Avenue South Naples, Florida 34102-7116 Eric Alexander 654 Squire Circle Naples, Florida 34101-8352 Jack Hall 2675 Bayview Drive Naples, Florida 34112-5825 James Pergola 1830 Kingfish Road Naples, Florida 34102-1533 Dave Sirkos 750 River Point Drive Naples, Florida 34102-1400 Mimi S. Wolok, Esquire 1112 Trial Terrace Drive Naples, Florida 34103-2306 Robert G. Menzies, Esquire James D. Fox, Esquire Roetzel & Andress 850 Park Shore Drive, Suite 300 Naples, Florida 34103 Ralf G. Brookes, Esquire 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 Michael R.N. McDonnell, Esquire McDonnell Trial Lawyers 5150 Tamiami Trial North, Suite 501 Naples, Florida 34103 Ken Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
