93-003842RU
St. Johns County Board Of County Commissioners vs.
Board Of Trustees Of The Internal Improvement Trust Fund
Status: Closed
DOAH Final Order on Tuesday, November 30, 1993.
DOAH Final Order on Tuesday, November 30, 1993.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8BOARD OF COUNTY COMMISSIONERS )
13OF ST. JOHNS COUNTY, FLORIDA, )
19)
20Petitioner, )
22)
23vs. ) CASE NO. 93-3842RU
28)
29BOARD OF TRUSTEES OF THE )
35INTERNAL IMPROVEMENT TRUST FUND, )
40)
41Respondent. )
43___________________________________)
44BOARD OF COUNTY COMMISSIONERS )
49OF ST. JOHNS COUNTY, FLORIDA, )
55)
56Petitioner, )
58) CASE NOS. 93-3875RX
62vs. ) 93-4533RP
65)
66DEPARTMENT OF ENVIRONMENTAL )
70PROTECTION, )
72)
73Respondent. )
75___________________________________)
76FINAL ORDER
78On August 26, 1993, a formal administrative hearing was held in this case
91in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division
101of Administrative Hearings.
104APPEARANCES
105For Petitioner: Daniel J. Bosanko, Esquire
111Assistant County Attorney
114St. Johns County
117Post Office Box 1533
121St. Augustine, Florida 32085-1533
125For Respondent: Edwin A. Steinmeyer, Esquire
131Barrie J. Sawyer, Esquire
135Assistant General Counsel
138Department of Environmental Protection
1422600 Blair Stone Road
146Tallahassee, Florida 32399-2400
149STATEMENT OF THE ISSUES
153The issues in these cases are: in Case No. 93-3875RX, whether F.A.C. Rule
16616D-2.002(4)-(5) is an invalid exercise of delegated legislative authority; and,
176in Case No. 93-4533RP, whether the proposed amendment to F.A.C. Rule 18-20.004,
188incorporating by reference the Guana River Marsh Aquatic Preserve Management
198Plan (the Management Plan), is an invalid exercise of delegated legislative
209authority. Both F.A.C. Rule 16D-2.002(4)-(5) and the proposed amendment to
219F.A.C. Rule 18-20.004 have been cited by the Respondent, the Department of
231Environmental Protection (DEP), as authority for prohibiting driving motor
240vehicles on the Atlantic Ocean beaches in St. Johns County that are within the
254Guana River Marsh Aquatic Preserve (the Preserve).
261(On August 24, 1993, the Petitioner voluntarily dismissed its petition in
272Case No. 93-3842RU, which attacked the Management Plan under Section 120.535,
283Fla. Stat. (Supp. 1992), as being an invalid unpromulgated rule. The dismissal
295was based on the Respondent's assurance that it was proceeding with the rule
308amendment challenged in Case No. 93-4533RP and that it would not enforce the
321provisions of the proposed amendment to F.A.C. Rule 18-20.004 to prohibit
332driving on the Atlantic Ocean beaches in the Preserve until the resolution of
345Case No. 93-4533RP. See the Preliminary Statement.)
352PRELIMINARY STATEMENT
354On July 8, 1993, the Petitioner, St. Johns County (the County) filed two
367proceedings at the Division of Administrative Hearings: (1) a "Section
377120.535(2), Florida Statutes, Petition to Invalidate an Agency Policy Statement
387on the Grounds that it has not been Adopted as a Rule in Accordance with Section
403120.54, Florida Statutes"; and (2) a "Section 120.56, Florida Statutes, Petition
414to Invalidate Portions of Rule 16D-2.002 Florida Administrative Code in that
425they are an Invalid Exercise of Delegated Authority in Relation to St. Johns
438County." The former was given Case No. 93-3842RU, and the latter was given Case
452No. 93-3875RX. Both were assigned to the undersigned hearing officer on July
46415, 1993.
466At the same time, the County filed with the Department of Environmental
478Protection a "Petition Challenging the Validity of Agency Action and Request for
490Formal Proceedings pursuant to Section 120.57(1), Florida Statutes."
498A prehearing conference was conducted by conference telephone call on July
50921, 1993. The parties advised that the Section 120.57(1) petition was in the
522process of being referred to the Division of Administrative Hearings and
533requested that all three cases be consolidated for final hearing on August 26-
54627, 1993, at the Division of Administrative Hearings in Tallahassee. (The
557Section 120.57(1) case was referred later on July 21, 1993, and was given
570Division of Administrative Hearings Case No. 93-3970.) The parties' request was
581granted by entry of an Order Consolidating Cases, a Notice of Hearing, and a
595Prehearing Order (requiring prehearing conferences and a prehearing
603stipulation.)
604On August 13, 1993, the County filed a "Section 120.54, Florida Statutes,
616Petition Challenging Proposed Amendment to Rule 18-20.004 Florida Administrative
625Code as an Invalid Exercise of Delegated Authority." The proposed amendment
636incorporated by reference the Guana River Marsh Aquatic Preserve Management Plan
647(the Management Plan), including the prohibition against driving on the Atlantic
658Ocean beaches in the Preserve. The proposed rule challenge also was assigned to
671the undersigned hearing officer and was given DOAH Case No. 93-4533RP.
682Unopposed motions for leave to amend the petitions in the other cases, and
695an unopposed Motion to Consolidate Case No. 93-4533RP with the other cases, also
708were filed on August 13, 1993. On August 17, 1993, an Order Consolidating Cases
722and Granting Leave to Amend Petitions was entered.
730On August 23, 1993, the County filed second motions for leave to amend its
744petitions in Case Nos. 93-4533RP and 93-3970. On the record of the final
757hearing, DEP stated that it had no objection, and the motions were granted.
770On August 24, 1993, the County filed a voluntary dismissal of its petition
783in Case No. 93-3842RU. The dismissal was based on the DEP's assurance that it
797was proceeding with the proposed rule amendment challenged in Case No. 93-4533RP
809and that it would not enforce the provisions of the proposed amendment to F.A.C.
823Rule 18-20.004 to prohibit driving on the Atlantic Ocean beaches in the Preserve
836until the resolution of Case No. 93-4533RP.
843At the final hearing, the parties had Joint Exhibits 1 and 2 admitted in
857evidence. Without objection, the County also had Petitioner's Exhibits 1
867through 6 admitted in evidence. (Petitioner's Exhibit 2 was a videotape
878depicting a drive along the beach in question, which was viewed during the
891hearing.) Without objection, the DEP had Respondent's Exhibits 1 and 3 through
9035 admitted in evidence. (Respondent's Exhibit 2 was not identified. It related
915to Case No. 93-3842RU, which was dismissed.) The County called three witnesses,
927and the DEP called one.
932At the end of the presentation of the evidence, the parties ordered the
945preparation of a transcript of the final hearing and requested 20 days from the
959filing of the transcript in which to file proposed orders. The transcript was
972filed on September 9, making the proposed orders due by September 29, 1993.
985Explicit rulings on the proposed findings of fact contained in the parties'
997proposed final orders may be found in the attached Appendix to Final Order.
1010FINDINGS OF FACT
10131. The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned
1024property. Title is held by the Board of Trustees of the Internal Improvement
1037Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns
1051County.
10522. Within the boundaries of the Preserve is included the Guana River State
1065Park (the Park). It, too, is state-owned. It is managed and operated by the
1079Division of Recreation and Parks (the DRP) of the Department of Environmental
1091Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are
1102included within the boundaries of the Park.
11093. The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in
1123the Preserve is the area of the beach between mean high water and mean low
1138water. The mean high water line is essentially the landward extent of the ocean
1152at mean high tide; the mean low water line is essentially the landward extent of
1167the ocean at mean low tide. When the tide is low, this entire area of the beach
1184is exposed. It remains wet and, generally, relatively hard-packed during the
1195time it is exposed. However, there are beds of "red shell" in this part of the
1211beach that are softer. In the summer, this part of the beach averages
1224approximately 50 feet in width. In the winter, when the waves and tides
1237generally are higher, it is narrower.
12434. In the Preserve, the mean high water line usually is indicated both by
1257debris washed up during the highest tides and left on the beach and by a
"1272shelf." This "shelf," made by the erosive action of the ocean waves during the
1286highest tides and during storms, rises at an angle of approximately 45 degrees
1299and can be from one to four or five feet high. Landward of this shelf is the
"1316dry sand" or "soft sand" beach, also sometimes referred to as the "upper
1329beach." It extends landward from the mean high water line to the vegetation
1342line, where the dunes start. Usually, some pioneer vegetation is found in the
1355uppermost reaches of this part of the beach, forming what is called the
"1368foredune" area of the beach.
13735. The tides along the Atlantic Ocean beaches in the Preserve are semi-
1386diurnal, i.e., there usually are two high tides and two low tides a day. These
1401high and low tides last approximately one hour, and each day they occur
1414approximately an hour later than they did the day before.
14246. There are five beach access points with motor vehicle parking areas
1436located along U.S. Highway A1A within the Preserve. Three are within the Park.
1449There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five
1464parking areas. There also is a current proposal for the addition of three more
1478access points in the Park, with parking for a total of 340 vehicles, five beach
1493bathhouses, and five pedestrian overpasses.
14987. There are many other places where pedestrians can walk from A1A to the
1512beaches, including 30 County-controlled access points. But there are no lawful
1523parking areas adjacent to any of these other access points at this time, and
1537parking on the right-of-way of A1A is prohibited.
15458. Currently, the only lawful motor vehicle access to the Atlantic Ocean
1557beaches in the Preserve is to the south of the Preserve. Prior to the agency
1572action challenged in these proceedings, motor vehicles lawfully could be driven
1583onto the beach at this access point and be driven north into the Preserve, so
1598long as they remained below the mean high water line. A former access near the
1613north end of the Preserve has been cordoned off. To leave the Preserve, motor
1627vehicles would have to be turned around and driven back south to the same motor
1642vehicle access point.
16459. Due to the restricted access to the Atlantic Ocean beaches in the
1658Preserve, not much use is made of those beaches. In comparison, beaches to the
1672south are used much more heavily. Of the relatively few who use the motor
1686vehicle access to the south and drive on the beach north through the Preserve,
1700some ultimately use the beaches to picnic, swim, surf, beach-comb and similar
1712activities; some probably just drive on the beach. There was no evidence
1724quantifying the uses currently being made of the beaches in the Preserve.
173610. In the past, homemade motor vehicles called "skeeters" were built with
1748a light-weight chassis and over-sized wheels. They were used for driving on
1760both the hard and soft areas of the beaches, as well as illegally in the dunes.
1776This practice has been curtailed due to better enforcement of the prohibitions
1788against driving in the dunes, a generally heightened environmental consciousness
1798among the public, and prohibitions against driving the "skeeters" on public
1809highways. Generally, there has been less driving on the beaches of the Preserve
1822in recent years, although the practice persists at a reduced level.
183311. At all times of the year, it sometimes is impossible to drive along
1847the entire length of the beaches in the Preserve without driving on the soft
1861sand area. This is especially true during the winter months when the waves and
1875tides are higher and storms are more frequent. But even in the summer months,
1889there are times when "red shell beds" in the "wet sand" part of the beach must
1905be circumvented to avoid getting stuck. Especially when the tide is not at its
1919lowest, the only way to avoid some of these "red shell" beds is to drive over
1935the "shelf" and onto the "soft sand." Depending on the tides, this may also be
1950necessary in order to turn a vehicle around on the beach. In many places, the
"1965soft sand" area is not very wide, and it would be necessary under those
1979circumstances to drive in the "foredune" area.
198612. The times of the daily high and low tides can be obtained relatively
2000easily by members of the public. But there is no assurance that all persons who
2015would drive on the beaches would know the times of the tides. Nor is there any
2031assurance that persons who drive the "wet sand" or "hard sand" part of the
2045beaches at low tide also would plan to both start their beach drive and their
2060return trip during low enough tides to be able to avoid driving on the "soft
2075sand" part of the beach. For these and other reasons, it would be difficult, if
2090not practically impossible, to effectively monitor beach driving throughout the
2100Preserve and consistently enforce a restriction to driving only on the "wet
2112sand" or "hard sand" areas of the beach.
212013. In the summer months, sea turtles lay eggs in nests dug in the sand of
2136the foredune and dune areas of the Atlantic Ocean beaches in the Preserve.
2149After a period of incubation in the nests, the turtle hatchlings dig themselves
2162out of the nests and crawl to the ocean to begin their lives in the sea.
2178Driving motor vehicles over nests on those parts of the beaches in the summer
2192months could crush eggs in their nests or pack the sand hard enough to reduce
2207the number of hatchlings that emerge from the nest alive. In addition, driving
2220motor vehicles in these area, even in other parts of the year, can leave ruts in
2236the beach that disorient hatchlings that leave the nests in summer so that fewer
2250reach the ocean alive.
225414. Sea turtles crawl out of the ocean to their nest sites at night.
2268Artificial lighting can disturb their nesting and egg-laying activities.
2277However, it seems that moving lights, or lights that turn on and off (in the
2292manner of car lights), create more of a disturbance than stationary lights, such
2305as those more often found at residences along the beaches in the Preserve. The
2319Management Plan does not prohibit artificial lighting along the beaches in the
2331Preserve, but it recommends that further attention be given to this problem and
2344that ways to address the problem be explored and pursued in cooperation with the
2358County.
235915. Various shore birds, including the threatened least tern, make their
2370nests in the foredune area of the beaches in the Preserve. Driving on the
2384foredunes destroys and disturbs nesting habitat and disturbs the nesting
2394activities of these birds. In addition, both these ground nesting shore birds
2406and a variety of migratory birds make use of different areas of the beaches to
2421rest and feed. Driving on the beaches disturbs these activities, as well. The
2434only known nesting colony of least terns in St. Johns County is located in the
2449Park, where beach driving is prohibited.
245516. The Division of Parks and Recreation (DPR) of the Department of
2467Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to
2476prohibit driving or parking motor vehicles on the beaches of the Park by not
2490designating the beaches as driving or parking areas within the Park. At least
2503parts of the beaches in the Park have been posted as areas where driving motor
2518vehicles is prohibited.
252117. In order to develop a management plan for the Preserve, the manager of
2535the Preserve personally researched the geology, climate and natural resources of
2546the Preserve, as well as the records of the County, and also collected data
2560pertaining to the Preserve from several state agencies. Over the course of a
2573year, the manager's input was taken into consideration, and a management plan,
2585called the Guana River Marsh Aquatic Preserve Management Plan (the Management
2596Plan), was developed for the Preserve. It was adopted by the Board of Trustees
2610of the Internal Improvement Trust Fund on December 17, 1991.
262018. The Management Plan recites in pertinent part:
2628At the present time, motorized vehicular
2634traffic is permitted, by county ordinance,
2640below the natural vegetation line on the
2647beaches adjacent to the Atlantic Ocean in St.
2655Johns County. Vehicles are not allowed on
2662the 4.2 miles of beach within Guana River
2670State Park. The coarse coquina sand and
2677steep profiles of the beaches in the preserve
2685make driving on the wet sand area difficult.
2693Drivers are forced to cross the dry sand
2701area, damaging the foredunes, pioneer dune
2707vegetation and sea turtle nesting habitat.
2713Due to the negative environmental impacts
2719resulting from this activity, motorized
2724vehicular traffic shall not be considered an
2731authorized activity on sovereign submerged
2736lands within [Prime Resource Protection Area]
2742PRPA beach management areas of the preserve,
2749and therefore will be prohibited.
2754Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are
2768Prime Resource Protection Area, and the driving of motorized vehicles on them is
2781prohibited.
278219. On June 11, 1993, the DEP's DRP sent St. Johns County a letter
2796advising that, based on the Management Plan, DEP no longer would permit the
2809driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The
2822proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management
2831Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or
2845about August 18, 1993, the DEP agreed not to enforce the beach driving
2858prohibition in the Preserve until these cases are resolved.
2867CONCLUSIONS OF LAW
287020. F.A.C. Rule 16D-2.002, dealing with vehicles and traffic in state
2881parks, provides in pertinent part:
2886(4) Restriction to Roads. No person shall
2893drive any vehicle on any area except
2900designated roads, parking areas, or other
2906such designated areas.
2909(5) Parking. All vehicles shall be parked
2916only in established parking areas or in such
2924other areas and at such times as the Division
2933may designate.
2935Utilizing this rule, the Division of Parks and Recreation (DPR) of the
2947Department of Environmental Protection (DEP) has prohibited driving or parking
2957motor vehicles on the beaches of the Park by not designating the beaches as
2971driving or parking areas within the Park.
297821. The proposed amendment to F.A.C. Rule 18-20.004, dealing with
2988management policies, standards and criteria for state aquatic preserves,
2997incorporates by reference the Guana River Marsh Aquatic Preserve Management Plan
3008(the Management Plan), including the beach driving prohibition in the Management
3019Plan.
3020Jurisdiction Over the Beaches
302422. The first essential ground on which the County challenges the validity
3036of both F.A.C. Rule 16D-2.002(4)-(5) and the proposed amendment to F.A.C. Rule
304818-20.004 is its contention that the County, not the DEP, has jurisdiction over
3061vehicular traffic on the Atlantic Ocean beaches in St. Johns County.
307223. In 1941, the Florida Legislature declared the Atlantic Ocean beach
3083within St. Johns County seaward of the mean high water line to be a public
3098highway under the jurisdiction and control of St. Johns County, subject to the
3111right of the public to use the beach for bathing and recreation. Chapter 21543,
3125Laws of Florida (1941).
312924. In 1949, the Legislature limited the County's jurisdiction by
3139prohibiting the operation of motor vehicles on the northerly two and a half
3152miles of the beach referred to in Chapter 21543, Laws of Florida (1941).
3165Chapter 26196, Laws of Florida (1949).
317125. In 1961, the Legislature further limited the County's jurisdiction by
3182prohibiting the operation of motor vehicles on the southerly four miles of the
3195northerly six and a half miles of the beaches referred to in Chapter 21543, Laws
3210of Florida (1941). Chapter 61-2744, Laws of Florida (1961).
321926. In 1965, the Legislature specified that the County only had
3230jurisdiction to "supervise, regulate, prohibit and permit the operation of"
3240motor vehicles on the beaches within the county limits over which the county had
3254jurisdiction. Chapter 65-2178, Laws of Florida (1965).
326127. These earlier special acts dealing with vehicular traffic on the
3272coastal beaches of St. Johns County must be read in pari materia with more
3286recent legislative pronouncements on the same subject. Specifically, more
3295recent legislative acts addressing the entire subject, only some of which was
3307addressed in earlier enactments, take precedence over the older legislation.
3317See Alvarez v. Board of Trustees of the City Pension Fund for Fire Fighters and
3332Police Officers in the City of Tampa, 580 So. 2d 151 (Fla. 1991). It is assumed
3348that the more recent laws were enacted with full knowledge of the older ones.
3362Oldham v. Rooks, 361 So. 2d 140 (Fla. 1978).
337128. In 1985, the Legislature enacted the Coastal Zone Protection Act,
3382which recognized the importance of beach ecology and the need to control and
3395manage beaches in order to preserve their unique features. See Sections 161.52-
3407161.58, Fla. Stat. (1991).
341129. Section 161.58(1), Fla. Stat. (1991), prohibits "vehicular traffic . .
3422. on the dunes or native stabilizing vegetation of the dune system of coastal
3436beaches," except that which is necessary for cleanup, repair, or public safety,
"3448and except for traffic upon authorized local or state dune crossovers."
3459Section 161.58(2), Fla. Stat. (1991), provides:
3465Vehicular traffic, except that which is
3471necessary for cleanup, repair, or public
3477safety, or for the purpose of maintaining
3484existing licensed and permitted traditional
3489commercial fishing activities or existing
3494authorized public accessways, is prohibited
3499on coastal beaches except where a local
3506government with jurisdiction over a coastal
3512beach or portions of a coastal beach has:
3520(a) Authorized such traffic, by at least a
3528three-fifths vote of its governing body, on
3535all or portions of the beaches under its
3543jurisdiction prior to the effective date of
3550this act; and
3553(b) Determined, by October 1, 1989, in
3560accordance with the rules of the department,
3567that less than 50 percent of the peak user
3576demand for off-beach parking is available.
3582However, the requirements and department
3587rulemaking authority provided in this
3592paragraph shall not apply to counties that
3599have adopted, prior to January 1, 1988,
3606unified countywide beach regulations pursuant
3611to a county home rule charter.
3617Since the County proved compliance with the terms of paragraphs (a) and (b) of
3631Section 161.58(2), this statute raises the issue whether the County has
3642jurisdiction over the coastal beaches within the Preserve.
365030. Also in 1985, the Legislature designated the Guana River Marsh Aquatic
3662Preserve for inclusion in the Floridaa Aquatic Preserve Act of 1975. Section
3674258.394, Fla. Stat. (1991). It includes "all the sovereignty submerged lands
3685and other state-owned lands" lying within the boundaries described in the
3696statute. Id. Within those boundaries are the coastal beaches in St. Johns
3708County that are the subject of the controversy in this case. Some of the
3722coastal beaches in question are within the boundaries of the the Guana River
3735State Park (the Park), which lies wholly within the Preserve boundaries.
374631. Title to the Preserve and the Park is held by the Board of Trustees of
3762the Internal Improvement Trust Fund in trust for the use and benefit of the
3776people of the state pursuant to Section 7, Article II, and Section 11, Article
3790X, of the Florida Constitution. Section 253.001, Fla. Stat. (1991). The Board
3802is "vested and charged with the acquisition, administration, management,
3811control, supervision, conservation, protection, and disposition of the lands it
3821holds in trust for the people of the state." Section 253.03, Fla. Stat. (Supp.
38351992).
383632. The Department of Environmental Protection (DEP), acting as the agent
3847for the Board of Trustees of the Internal Improvement Trust Fund, is a state
3861agency charged with the responsibility of managing Florida's aquatic preserves
3871under Chapter 258.35-258.46, Fla. Stat. (1991).
387733. The DEP's Division of Recreation and Parks (DRP) is a state agency
3890charged with the responsibility of managing Florida's state parks under Chapter
3901258, Fla. Stat. (1991), and the rules promulgated under that law. The DRP was
3915reassigned to the new Department of Environmental Protection in 1993. Chapter
392693-213, Laws of Florida (1993).
393134. The DEP also is charged with the responsibility to administer,
3942supervise, develop and conserve the natural resources of the State under Chapter
3954370, Florida Statutes, and the rules promulgated under that law.
396435. The DEP also is required to preserve and protect state-owned lands and
3977the natural resources associated with these lands, such as dunes, sea turtles
3989and least terns. Chapter 253, 258 and 370, Fla. Stat. (1991).
400036. In 1988, the Park was leased to the State of Florida, Department of
4014Natural Resources, Division of Recreation and Parks (the DRP). The DRP was
4026reassigned to the new Department of Environmental Protection in 1993. Chapter
403793-213, Laws of Florida (1993). The DRP has the statutory duty to preserve,
4050manage, regulate, and protect all parks and recreational areas held by the
4062state. Section 258.004(2), Fla. Stat. (1991). The DRP is authorized to
4073promulgate rules "as it may deem necessary or proper for the management and use
4087of the parks . . . under its jurisdiction . . .." Section 258.007(2), Fla.
4102Stat. (1991).
410437. These and other statutory authorities make clear that the County no
4116longer has jurisdiction over the coastal beaches in the Preserve and in the
4129Park. To the contrary, the Board of Trustees of the Internal Improvement Trust
4142Fund has jurisdiction over the Park and has delegated its jurisdiction to the
4155DEP. The DRP of the DEP has jurisdiction over the Park. The County no longer
4170has jurisdiction to authorize vehicular traffic on beaches within the Park and
4182within the Preserve.
4185Traditional Uses of the Beaches
419038. The County also argues that, even if the County no longer has
4203jurisdiction over vehicular traffic on the coastal beaches, the DEP's
4213jurisdiction is significantly limited, at least in the Preserve, if not in the
4226Park. Section 258.43(1), Fla. Stat. (1991), dealing with state aquatic
4236preserves, provides:
4238The Board of Trustees of the Internal
4245Improvement Trust Fund shall adopt and
4251enforce reasonable rules and regulations to
4257carry out the provisions of this act and
4265specifically to provide regulation of human
4271activities within the preserve in such a
4278manner as not to unreasonably interfere with
4285lawful and traditional public uses of the
4292preserve, such as sport and commercial
4298fishing, boating, and swimming.
4302The County contends that beach driving is a traditional use of the beaches in
4316the Preserve and that, in addition, prohibiting beach driving in the Preserve
4328would unreasonably interfere with fishing, boating and swimming in the Preserve.
433939. When construing a statute, the mention of one thing in the statute
4352implies the exclusion of things not mentioned. (Expressio unius est exclusio
4363alterius.) Thayer v. State, 335 So. 2d 815 (Fla. 1976); Devin v. City of
4377Hollywood, 351 So. 2d 1022 (Fla. 1976). Another rule of statutory construction
4389is that, where general words follow a list of particulars, the general words are
4403presumed to be restricted by the nature of the particulars. (Ejusdem generis.)
4415Cf. Shepard v. Thames, 251 So. 2d 265 (Fla. 1971); Arnold v. Shumpert, 217 So.
44302d 116 (Fla. 1968). Applying these rules, even assuming that the listing in the
4444statute is non-exclusive, it is concluded that the mention of fishing, boating
4456and swimming in the statute was intended to exclude beach driving.
446740. It also is concluded that the prohibition against driving motor
4478vehicles on the beaches in the Preserve does not unreasonably interfere with any
4491lawful and traditional public uses of the Preserve.
4499Reasonableness of the Challenged Promulgations
450441. The County also argues that the prohibition of all beach driving on
4517the beaches in the Preserve and in the Park is overly broad. It argues that a
4533prohibition against driving only during the winter season, or a restriction to
4545driving only at low tide, would have been sufficient to achieve the State's
4558purposes.
455942. It has been found that, at all times of the year, it sometimes is
4574impossible to drive along the entire length of the beaches in the Preserve
4587without driving on the soft sand area. This is especially true during the
4600winter months when the waves and tides are higher and storms are more frequent.
4614But even in the summer months, there are times when "red shell beds" in the "wet
4630sand" part of the beach must be circumvented to avoid getting stuck. Especially
4643when the tide is not at its lowest, the only way to avoid some of these "red
4660shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on
4675the tides, this may also be necessary in order to turn a vehicle around on the
4691beach. In many places, the "soft sand" area is not very wide, and it would be
4707necessary under those circumstances to drive in the "foredune" area.
471743. It also has been found that there is no assurance that all persons who
4732would drive on the beaches would know the times of the tides. Nor is there any
4748assurance that persons who drive the "wet sand" or "hard sand" part of the
4762beaches at low tide also would plan to both start their beach drive and complete
4777their return trip during low enough tides to be able to avoid driving on the
"4792soft sand" part of the beach. For these and other reasons, it would be
4806difficult, if not practically impossible, to effectively monitor beach driving
4816throughout the Preserve and consistently enforce a restriction to driving only
4827on the "wet sand" or "hard sand" areas of the beach.
483844. For these reasons, it is concluded that a complete prohibition against
4850driving motor vehicles on the beaches in the Preserve and in the Park is not
4865unreasonable or overly broad.
4869DISPOSITION
4870Based on the foregoing Findings of Fact and Conclusions of Law, these
4882challenges to the validity of F.A.C. Rule 16D-2.002(4)-(5) and to the proposed
4894amendment to F.A.C. Rule 18-20.004, incorporating by reference the Guana River
4905Marsh Aquatic Preserve Management Plan, are denied.
4912DONE AND ORDERED this 30th day of November, 1993, in Tallahassee, Florida.
4924___________________________
4925J. LAWRENCE JOHNSTON
4928Hearing Officer
4930Division of Administrative Hearings
4934The DeSoto Building
49371230 Apalachee Parkway
4940Tallahassee, Florida 32399-1550
4943(904) 488-9675
4945Filed with the Clerk of the
4951Division of Administrative Hearings
4955this 30th day of November, 1993.
4961APPENDIX TO FINAL ORDER, CASE NO. 93-3842RU
4968To comply with the requirements of Section 120.59(2), Fla. Stat. (1991),
4979the following rulings are made on the parties' proposed findings of fact:
4991Petitioner's Proposed Findings of Fact, Case No. 93-3875RX.
49991. Accepted and incorporated.
50032. Accepted but subordinate and unnecessary.
50093. Accepted and incorporated.
50134. Accepted in part and rejected in part, as reflected in the Findings of
5027Fact.
5028Petitioner's Proposed Findings of Fact, Case No. 93-4533RP.
50361.-5. Accepted and incorporated to the extent not subordinate or
5046unnecessary.
50476. Subordinate and unnecessary.
50517.-8. Accepted and incorporated to the extent not subordinate or
5061unnecessary.
50629. First sentence, rejected as not proven. There also is access by boat
5075and, albeit over longer distances, by foot.
508210. Accepted and incorporated to the extent not subordinate or
5092unnecessary.
509311. Accepted in part and rejected in part, as reflected in the Findings of
5107Fact.
510812. Accepted as representative of dead low tide. Subordinate and
5118unnecessary.
511913. Accepted and incorporated.
512314. Rejected in part: in that there are "red shell beds" in summer, too,
5137and they can force drivers onto the "soft sand" areas in summer, too, depending
5151on the tides; in that "dramatically" is argument and not proven; and in that
5165Exhibit 2 depicts dead low tide in summer.
517315. Accepted but subordinate and unnecessary.
517916. Rejected as not proven. (Enforcement of such mitigation would be
5190impracticable or impossible.)
519317. Accepted but subordinate and unnecessary.
519918. Accepted and incorporated.
520319.-20. First sentence, accepted and incorporated. Second sentence,
5211accepted that the County uses "due care," but enforcement of a prohibition
5223against driving anywhere except on the "hard sand" is impracticable or
5234impossible.
523521. Rejected as not proven.
524022. Accepted but subordinate and unnecessary.
524623. Rejected as not proven that there is "no way to get to many beach
5261areas" or that limited access "restricts traditional use." (Access as limited,
5272or more limited, is "traditional.")
527824.-26. Accepted and incorporated.
528227. Rejected as not proven. (How easy it is depends entirely on the tide,
5296the number and location of people on the beach, and the presence of "red shell"
5311beds.)
531228. Accepted and incorporated.
5316Respondent's Proposed Findings of Fact.
53211.-3. Accepted and incorporated except to the extent conclusion of law and
5333unnecessary.
53344. Accepted and incorporated.
53385. Accepted but subordinate and unnecessary.
53446.-20. Accepted and incorporated to the extent not concluson of law,
5355subordinate or unnecessary.
535821.-24. Rejected as being conclusion of law.
536525.-33. Accepted and incorporated to the extent not subordinate or
5375unnecessary.
537634. Rejected as conclusion of law as to who is "responsible."
538735.-54. Accepted and incorporated to the extent not subordinate or
5397unnecessary.
539855. Rejected as not proven. Also, conclusion of law.
540756. Accepted but subordinate and unnecessary.
5413COPIES FURNISHED:
5415Daniel J. Bosanko, Esquire
5419Assistant County Attorney
5422St. Johns County
5425Post Office Box 1533
5429St. Augustine, Florida 32085-1533
5433Edwin A. Steinmeyer, Esquire
5437Barrie J. Sawyer, Esquire
5441Assistant General Counsel
5444Department of Environmental Protection
54482600 Blair Stone Road, Mail Station 35
5455Tallahassee, Florida 32399-2400
5458Kenneth Plante, Esquire
5461General Counsel
5463Department of Environmental Protection
54672600 Blair Stone Road
5471Tallahassee, Florida 32399-2400
5474Carroll Webb, Executive Director
5478Administrative Procedures Committee
5481120 Holland Building
5484Tallahassee, Florida 32399-1300
5487Liz Cloud, Chief
5490Bureau of Administrative Code
5494Department of State
5497The Elliot Building
5500Tallahassee, Florida 32399-0250
5503NOTICE OF RIGHT TO JUDICIAL REVIEW
5509A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL
5523REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE
5533GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE
5544COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE
5560DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING
5571FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR
5584WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY
5597RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE
5612ORDER TO BE REVIEWED.
5616=================================================================
5617DISTRICT COURT OPINION
5620=================================================================
5621IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
5632FIFTH DISTRICT JULY TERM 1994
5637BOARD OF COUNTY COMMISSIONERS NOT FINAL UNTIL TIME EXPIRES
5646OF ST. JOHNS COUNTY, etc., TO FILE MOTION FOR REHEARING,
5656AND, IF FILED, DISPOSED OF.
5661Appellant,
5662CASE NO. 93-2949
5665vs. 94-274
5667DOAH CASE NOS. 93-3842RU
5671THE DEPARTMENT OF ENVIRONMENTAL 93-3875RU
5676PROTECTION,
5677Appellee.
5678_________________________________/
5679Decision filed September 27, 1994
5684Administrative Appeal from the Department of Environmental Protection.
5692Daniel J. Bosanko, Assistant County Attorney, James G. Sisco, County Attorney,
5703St. Augustine and David G. Conn, St. Augustine, for Appellant.
5713Kenneth J. Plante, General Counsel, Edwin A. Steinmeyer, John W. Costigan and
5725Barrie J. Sawyer, Assistant General Counsels, Tallahassee, for Apellee.
5734PER CURIAM,
5736AFFIRMED.
5737HARRIS, C.J., DIAMANTIS and THOMPSON, JJ., concur
- Date
- Proceedings
- Date: 02/27/2004
- Proceedings: Opinion filed.
- Date: 10/24/1996
- Proceedings: Fifth DCA Opinion (filed with DOAH on 10/24/96, Affirmed) filed.
- Date: 04/13/1994
- Proceedings: Order Denying Motion to Vacate Automatic Stay sent out.
- Date: 04/11/1994
- Proceedings: CC Petitioner`s Response to Respondents` Motion to Vacate Automatic Stay filed.
- Date: 04/08/1994
- Proceedings: Petitioner`s Response to Respondents` Motion to Vacate Automatic Stay filed.
- Date: 04/05/1994
- Proceedings: Notice of Hearing filed. (From Lisa L. Glenn)
- Date: 03/25/1994
- Proceedings: Respondents` Motion to Vacate Automatic Stay filed.
- Date: 11/30/1993
- Proceedings: Order of Consolidation sent out. (Consolidated cases are: 93-3842RU,93-3875RX, 93-4533RP)
- Date: 11/30/1993
- Proceedings: Case No/s 93-3842RU, 93-3875RX, 93-4533RP, 93-3970: unconsolidated.
- Date: 10/06/1993
- Proceedings: Motion to Amend Petition (for 93-4533RP) filed.
- Date: 09/29/1993
- Proceedings: Respondent`s Proposed Final Order filed.
- Date: 09/29/1993
- Proceedings: Respondent`s Proposed Recommended Order filed.
- Date: 09/27/1993
- Proceedings: Transcript filed.
- Date: 09/27/1993
- Proceedings: Petitioner`s Proposed Recommended Order (filed in 93-4533RP, 93-3875RX and 93-3970) filed.
- Date: 09/17/1993
- Proceedings: Notice of Written Communication sent out.
- Date: 09/15/1993
- Proceedings: Letter to JLJ from John W. Underwood (re: statement) filed.
- Date: 09/09/1993
- Proceedings: Transcript filed.
- Date: 08/24/1993
- Proceedings: (Petitioner) Voluntary Dismissal of Amended Section 120.535 (2), Florida Statutes Petition to Invalidate an Agency Policy Statement on the Grounds That It Has Not Been Adopted as A Rule in Accordance With Section 120.54, Florida Statutes Request for Heari
- Date: 08/23/1993
- Proceedings: Second Motion to Amend Petition Challenging the Validity of Agency Action and Request for Formal Proceedings Pursuant to Section 120.57(1),Florida Statutes (filed in 93-3970) filed.
- Date: 08/23/1993
- Proceedings: (Petitioner) Motion to Amend Section 120.54, Florida Statutes Petition Challenging Proposed Amendment to Rule 18-20.004 Florida Administrative Code As An Invalid Exercise of Delegated Authority and Request for Hearing (filed in 93-4533RP) filed.
- Date: 08/17/1993
- Proceedings: Order Consolidating Cases and Granting Leave to Amend Petitions (hearing set for Aug. 26-27, 1993) sent out. (Consolidated cases are: 93-3842RU, 93-3875RX, 93-3970 & 93-4533RP)
- Date: 08/16/1993
- Proceedings: Prehearing Stipulation filed. (From Edwin A. Steinmeyer)
- Date: 08/13/1993
- Proceedings: (Petitioner) Motion to Consolidate filed.
- Date: 08/13/1993
- Proceedings: Amended Section 120.535(2), Florida Statutes Petition to Invalidate an Agency Policy Statement on the Grounds that it has not Been Adopted as a Rule in Accordance with Section 120.54, Florida Statutes Request for Hearing (for 93-3842RU) filed.
- Date: 08/13/1993
- Proceedings: Amended Section 120.56 Florida Statutes Petition to Invalidate Portions of Rule 16D-2.002 Florida Administrative Code in that they are an Invalid Exercise of Delegated Authority in Relation to St. Johns County, Florida (for 93-3875RX) filed.
- Date: 08/13/1993
- Proceedings: Motion to Amend Section 120.56 Florida Statutes Petition to Invalidate Portions of Rule 16D-2.002 Florida Administrative Code in that they are an Invalid Exercise of Delegated Authority in Relation to St. Johns County, Florida (for 93-3875RX) filed.
- Date: 08/13/1993
- Proceedings: Amended Petition Challenging the Validity of Agency Action and Request for Formal Proceedings Pursuant to Section 120.57(1), Florida Statutes (for 93-3970) filed.
- Date: 08/13/1993
- Proceedings: Motion to Amend Petition Challenging the Validity of Agency Action and Request for Formal Proceedings Pursuant to Section 120.57(1), Florida Statutes (for 93-3970) filed.
- Date: 08/13/1993
- Proceedings: Motion to Amend Section 120.535(2), Florida Statutes Petition to Invalidate an Agency Policy Statement on the Grounds that it has Not Been Adopted as a Rule in Accordance With Section 120.43, Florida Statutes (for 93-3842RU) filed.
- Date: 08/13/1993
- Proceedings: (Petitioner) Notice of Taking Deposition Duces Tecum; Letter to JLJ from D. Bosanko (re: request for subpoenas) filed.
- Date: 08/11/1993
- Proceedings: (DEP) Notice of Taking Deposition Duces Tecum filed.
- Date: 07/21/1993
- Proceedings: Prehearing Order sent out.
- Date: 07/21/1993
- Proceedings: Notice of Hearing sent out. (hearing set for 8/26/93; 9:00am; Tallahassee)
- Date: 07/21/1993
- Proceedings: Order Consolidating Cases sent out. (Consolidated cases are: 93-3842RU, 93-3875RX, 93-3970)
- Date: 07/15/1993
- Proceedings: Letter to Liz Cloud & Carroll Webb from J. York w/cc: Agency General Counsel sent out.
- Date: 07/15/1993
- Proceedings: Order of Assignment sent out.
- Date: 07/08/1993
- Proceedings: Section 120.535(2), Florida Statutes Petition to Invalidate An AgencyPolicy Statement on the Grounds That it has Not Been Adopted as a Rule in Accordance With Section 120.54, Florida Statutes and Request for Hearing; Appendix; & C over Letter from D. Bosa
Case Information
- Judge:
- J. LAWRENCE JOHNSTON
- Date Filed:
- 07/08/1993
- Date Assignment:
- 07/15/1993
- Last Docket Entry:
- 02/27/2004
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Environmental Protection
- Suffix:
- RU