03-004478RU Shirley A. Reynolds And Diann P. Bowman vs. Board Of Trustees Of The Internal Improvement Trust Fund And Department Of Environmental Protection Status: Closed DOAH Final Order on Friday, February 20, 2004.

Summary: Petitioner did not show that the challenged statements were rules that should be adopted by Respondent Board of Trustees of the Internal Improvement Trust Fund.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY A. REYNOLDS, )

AND DIANN P. BOWMAN, )

)

Petitioners, )

)

vs. ) Case No. 03 - 4478RU

)

BOARD OF TRUSTEES OF THE )

INTERNAL IMPROVEMENT TRUST )

FUND AND FLORIDA DEPARTMENT )

OF ENVIRONMENTAL PROTECTIO N, )

)

Respondents. )

__________________________________)

FINAL ORDER

Pursuant to not ice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Stephen F. Dean, held a formal hearing in the above - styled case

on January 5, 2004, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ross Stafford Burn aman, Esquire

1018 Holland Drive

Tallahassee Florida 32301

For Respondent: Suzanne B. Brantley, Esquire

Regina M. Fegan, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahas see, Florida 32399 - 3000

STATEMENT OF THE ISSUES

Does a statement by an agency that its regulatory authority

is limited by Section 161.58, Florida Statute, constitute a non -

rule policy?

Does a statement by an agency that fees levied under

authority of Section 161.58, Florida Statutes, by county

governments for beach driving do not constitute revenue for

purposes of invoking its regulatory jurisdiction pursuant to

Florida Administrative Code Rule 18 - 21.005 (Rule 18 - 21.005)

constitute a non - rule polic y?

PRELIMINARY STATEMENT

In their Petition, filed on November 26, 2003, Petitioners

allege that the e - mail of Ken Reecy, an employee of the

Department of Environmental Protection (Department), to Ross

Burnaman, made September 4, 2003, is a policy statemen t that is

required to be adopted as a rule under Section 120.54, Florida

Statutes, and that they are substantially affected by the

statement. They allege that the statement made by Reecy related

to matters within the regulatory authority of the Board of

T rustees of the Internal Improvement Trust Fund (BOT).

Petitioners also request attorney’s fees and costs if they

prevail.

Respondents maintain that Petitioners are not substantially

affected by the statement; and that it is not a rule even if

they were affected. Further, Respondents state that rulemaking

would not be practicable. Additionally, the Department made a

Motion to Drop Department as Party that was not ruled upon at

hearing. It is denied for reasons stated in the Conclusions of

Law.

At the hearing, Petitioners called four witnesses: Diann

Phelps Bowman, David Arnold, Shirley Reynolds, and Ken Reecy.

Joint Exhibits 1 and 2 were admitted. Petitioners' Exhibits 5,

6, 7, 8, 9, and 16 were admitted; and Petitioners' Exhibits 10

and 12 were acc epted as proffers, but excluded from evidence.

Respondents called two witnesses: Ken Reecy and James W.

Stoutamire. Respondents' Exhibits 1, 3, and 4 were admitted

into evidence.

A two - volume transcript was filed on January 20, 2004.

Each party file d a Proposed Final Order that was considered in

preparing this Final Order.

FINDINGS OF FACT

Petitioners

1. Petitioner Shirley Reynolds (Reynolds) resides and owns

beachfront property overlooking the Atlantic Ocean in New Smyrna

Beach, Volusia County , Florida. Reynolds does not own to the

mean high water line, and her property is not adjacent to the

sovereign submerged lands held by the Trustees. Reynolds

“shares riparian rights with the public.”

2. Reynolds has owned her oceanfront home since 19 81. She

has observed beach driving by the general public on the beach

and in the shallow water in the vicinity of her home. She

enjoys the beachfront for “regular recreational, traditional

recreational purposes.”

3. Petitioner Diann Bowman (Bowma n) resides and owns

property that extends to and adjoins the mean high water line of

the Atlantic Ocean in New Smyrna Beach, Volusia County, Florida.

Bowman has observed the general public driving on the beach and

in shallow waters of the Atlantic Ocean i n the vicinity of her

property. Bowman goes swimming in the ocean, builds sand

castles by the edge of the water with her grandchildren, and

walks on the beach with friends.

4. Petitioners did not have any requests for leases or

applications for action pending before the BOT, and Volusia

County had not made an application to the Trustees for any

activity permit or lease.

5. Petitioner Bowman was not even aware of Reecy's e -

mail, and could not articulate how she was affected by it.

6. Although Reynol ds testified at length about the impacts

of beach driving and beach concessions between her home and the

ocean, she failed to show how she was affected by Reecy's

statements that the BOT does not regulate beach driving. In

response to counsel’s question o f what personal interest she has

in whether or not the Trustees require authorization to use

state land for motor vehicle traffic in front of her home, she

responded, “[I]f and when they ever deal with it, it will

certainly raise the consciousness of the h uman safety element.”

7. Petitioners testified regarding the adverse impacts of

beach driving on their property and their enjoyment of their

property. Beach driving has an adverse impact upon the property

values and upon their enjoyment of their prope rty.

Respondents

8. The BOT is an agency of the State of Florida,

consisting of the Governor and Cabinet. (Art. IV, s. 4 (f),

Fla. Const.) The BOT holds the title to the State’s sovereign

submerged lands acquired at statehood “for the use and benefit

of the people of the state,” pursuant to Chapter 253, Florida

Statutes. (§§ 253.001, 253.03, and 253.12, Fla. Stat.) Private

use of such lands generally requires consent of the BOT and must

not be contrary to the public interest.

9. The BOT is requir ed to manage and conserve state - owned

lands, including sovereignty lands, by law and is granted

rulemaking authority to that end.

10. The Department functions as the staff for the BOT, and

issues leases and other authorizations for private parties to

us e sovereign submerged lands under Chapter 253, Florida

Statutes, and Chapter 18 - 21, Florida Administrative Code.

11. In carrying out its duties with relationship to the

BOT, the Department implements policy as determined by the BOT,

to include taking so me final agency actions. The Department

would be the agency through which the BOT would initiate

rulemaking. The Department does not have delegated authority to

adopt rules for the BOT.

12. Ken Reecy (Reecy) is a Senior Management Analyst

Supervisor i n the Department’s Division of State Lands. One of

Reecy’s job duties is to provide responses to requests for BOT’s

public records housed in the Division of State Lands of the

Department.

13. On August 5, 2003, Ross Burnaman e - mailed Eva

Armstrong o f the Department the following public records

request:

Hi Eva - I am hoping that you can assist me

with this inquiry for public records. I'm

looking for any Trustees authorization for

the use of state lands (including uplands

and submerged lands) for beach driving by

the general public or commercial vendors.

While I'm aware of Section 161.58, Florida

Statutes, I'm of the opinion that Trustees'

authorization is still required for beach

driving on state lands. Most local

governments that allow beach driving

( e.g. Gulf County, Volusia County) charge a

fee for that activity. That would appear to

trigger, Rule 18 - 21.005(b)(2), FAC, and the

requirement for a lease. As I understand

it, public beach driving is allowed in parts

of the following counties: Nassau , Duval,

Flagler, St. Johns, Volusia, Gulf and Walton

counties. Thanks in advance for you

assistance. Best regards, Ross Burnaman

(phone number deleted)

14. Ms. Armstrong passed this request to Ken Reecy of the

Department who replied to Mr. Burnaman with the following e - mail

message:

Mr. Burnaman

Concerning your request as to any

authorization by the Board of Trustees for

beach driving and fees triggering Rule 18 -

21.005(b)(2)[sic]:

We are unaware of any instance in whi ch the

issue of beach driving has been brought

before the Board of Trustees for

authorization. Further, in discussions with

staff from our legal department, it is felt

that s. 161.58 sufficiently covers the issue

and that authorization from the Board is n ot

necessary. We are also of the opinion that

fees counties charge for beach driving would

not trigger Rule 18 - 21.005(b)(2)[sic]. If

you have any further questions on this

issue, please contact Suzanne Brantley in

EIP's Office of General Counsel (phone

n umber deleted)

15. The e - mail above contains two potential policy

statements; one concerning a statute and the other concerning a

rule. The analysis of each differs slightly.

16. The BOT was authorized at one time to regulate all the

uses o f state sovereignty lands, to include regulation of

driving on the state's beaches, i.e., that portion of land

seaward of the mean high water line (hereafter: beach.)

17. The BOT restricted the operation of private vehicles

on the beaches via rule.

18. The Legislature of the State of Florida enacted

Section 161.58, Florida Statutes, which authorized those

counties which had traditionally permitted driving on the beach

to regulate the operation of privately owned vehicles on the

beaches in their counties.

19. Several of the counties which had traditionally

permitted driving on the beach permitted privately owned

vehicles to be operated on the beach in their counties and

charged a small fee to defray the costs of providing parking,

life guard s, and traffic direction on the beaches.

20. The BOT attempted to intervene in those counties which

charged fees for beach driving on the basis that the fees being

charged were "revenue" producing.

21. The Legislature of the State of Florida amended

Section 161.58, Florida Statutes, to specifically authorize the

counties to collect reasonable fees to defray their costs of

regulating beach driving.

22. The statements that are challenged have not been

adopted as a rule.

23. Reecy testified at the hearing. Reecy only intended

to give Burnaman information related to his public records

request. The portion of Reecy's e - mail that is being challenged

was intended to explain why no records were found. Reecy

responded because Burnaman had sent follow - up e - mails to Reecy’s

supervisor, Armstrong, the Director of the Division of State

Lands. Reecy knew that Armstrong had a practice of providing

information to the public when it was requested.

24. R eecy is not charged with impleme nting or interpreting

Florida Administrative Code Rule 18 - 21 and does no t process

applications for leases or other authorizations from the BOT.

25. Reecy's statement that no records were found is not a

policy statement and has not been alleged to b e one by

Petitioners.

26. Reecy conferred with Department legal staff before

issuing his statement about Section 161.58, Florida Statutes.

Reecy did not state that Section 161.58 exempted counties from

getting BOT authorization for beach driving, a s Petitioners

state in their Petition, for several reasons: first, Reecy is

not the person on the BOT’s staff who makes such determinations;

second, there was no factual determination pending, i.e. , no

request for declaratory statement or request for an e xemption or

authorization; and third, the statute cited and its history

indicate that the Legislature has vested the exclusive authority

to regulate beach driving in those counties in which it

traditionally occurred to county government in those counties.

27. James W. Stoutamire (Stoutamire) is the principal

Department employee who is charged with interpreting and

applying the BOT’s rules. Stoutamire was the person to whom

authority had been delegated to make such policy determinations.

Burnaman's request was not presented to Stoutamire, and Reecy

did not consult with Stoutamire.

28. Although it is a statement concerning general law,

Reecy's first statement regarding Section 161.58, Florida

Statutes, does not assert agency jurisdiction or e xempt a

specific factual predicate from agency jurisdiction.

29. Reecy also discussed Burnaman’s reference to Florida

Administrative Code Rule 18 - 21.005(1)(b)2. with the Department's

legal staff. Reecy's references to the section mistakenly cites

it as Rule 18 - 21.005(b)2. Regardless of Reecy's intent, his

answer constitutes an interpretation of the rule as applied to

the fees charged by counties for beach driving.

30. The BOT's rules provide what types of private

activities must have con sent prior to their being undertaken on

sovereign submerged lands. They do not contain a list of all of

the many public activities that occur on Florida’s beaches,

shores, and waters that do not require consent.

31. The BOT's rules in Chapter 18 - 2 1 are not intended to

prevent air or noise pollution, promote public safety, protect

property values, provide peace and quiet, or protect quality of

life. These are the concerns about which Petitioners testified

as diminishing their peaceful enjoyment of their property

rights.

32. Beach concessions above the mean high water line do

not fall within the Trustees jurisdiction or control.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the parties and the sub ject matter under

Sections 120.56 and 120.57(1), Florida Statutes.

34. The Department moved to be dismissed as a party in

this cause. Based upon the facts adduced at hearing, the

employees of the Department have authority to implement BOT

policie s and to apply the Board's authority to specific factual

circumstances. Based upon the foregoing, the motion is denied.

35. As is generally the case, Petitioners have the burden

to go forward and the burden of proof in this case.

36. The BOT holds ti tle to and manages state - owned lands,

including all sovereign submerged lands, under Chapter 253,

Florida Statutes. See §§ 253.001, 253.03, Fla. Stat.

Sovereignty submerged lands are defined generally as those lands

seaward of the mean high water line.

37. The BOT generally requires consent for private use of

sovereign submerged lands. § 253.77, Fla. Stat. Private

activities on sovereign submerged lands must not be contrary to

the public interest. Art. X, s. 11, Florida Constitution.

38. As s tated above there are two separate issues in this

case, as follows:

Does a statement by an agency that its

regulatory authority is limited by Section

161.58, Florida Statute, constitute a non -

rule policy?

Does a statement by an ag ency that fees

levied under authority of Section 161.58,

Florida Statutes by county governments for

beach driving do not constitute revenue for

purposes of invoking its regulatory

jurisdiction pursuant to Florida

Administrative Code Rule 18 - 21.005 (Rule 18 -

21.005) constitute a non - rule policy?

Standing

39. The first issue in this type of case is the standing

of Petitioners to bring the challenge. S ection 120.56(4)(a),

Florida Statutes, provides that “[a]ny person substantially

affected by an age ncy statement may seek an administrative

determination that the statement violates s. 120.54(1)(a).”

40. In order to meet the “substantially affected” test

under Section 120.56, Florida Statutes, Petitioners must

establish: (1) a real and sufficientl y immediate injury in fact;

and (2) that the alleged interest is arguably within the zone of

interest to be protected or regulated. Lanoue v. Florida Dept.

of Law Enforcement , 751 So. 2d 94, 96 (Fla. 1st DCA 1999).

41. Petitioners lack standing to challenge the first

statement because they are not within the zone of interest of

the purported rule. The challenged statement is a negation of

authority to regulate, not an assertion of authority. Further,

it is not made with regard to a particular appl ication or in

regard to a declaratory statement. Petitioners are not in the

zone of interest of this statement.

42. An agency statement is a rule if it (1) “purports in

and of itself to create certain rights and adversely affect

others” or (2) ser ves “by (its) own effect to create rights, or

to require compliance, or otherwise to have the direct and

consistent effect of law.” State Dept. of Administration,

Division of Personnel v. Harvey , 356 So. 2d 323, 325 (Fla. 1st

DCA 1977); Department of Reve nue of State of Fla. v. Vanjaria

Enterprises, Inc. , 675 So. 2d 252, 255 (Fla. 5th DCA 1996). The

challenged statement does not meet either of the aforementioned

criteria as a statement of lack of jurisdiction.

43. Petitioners must show that the Trus tees’ statement

that authorization by the Trustees for beach driving not being

required, and not the beach driving itself, substantially

affects them. This is difficult to do because the statement

implicitly recognizes that county governments in the count ies

where beach driving is permitted are the regulatory authority.

While it is obvious that Petitioners do not like the way their

county regulates beach driving, they have not shown how lack of

regulation by the BOT adversely affects them. Such a showing is

necessary. See Kruer v. Board of Trustees of Int. Impust

Fund , 647 So. 2d 129, 132 (Fla. 1st DCA 1994), and Grove Isle,

Ltd. v. Bayshore Homeowners' Assn. , 418 So. 2d 1046 (Fla. 1st

DCA 1982).

44. Lastly, regarding the first statement chal lenged, the

history surrounding driving on the beach and regulation by the

BOT indicates that the Legislature has limited BOT's

jurisdiction to regulate driving on the beach by Section 161.58,

Florida Statutes. The challenged statement is re - statement of

the scheme of statutory regulation, and not a statement of BOT

policy. See Lanoue v. Florida Department of Law Enforcement ,

(1st DCA 1999), 751 So. 2d 94, regarding the challenge to non -

rule policies, "They are simply too remote and lack the direct

impact present with the challenged existing rules." Petitioners

fail to show how they are adversely impacted by the absence of

BOT regulation, as opposed to county regulation.

45. Regarding the second challenged statement, again the

first thing to conside r is Petitioners' standing to challenge

this statement. The court found in Town of Palm Beach v. State

Department of Natural Resources , 577 So. 2d 1383, (4th DCA

1991), that the BOT’s interpretation of its rules in determining

that it did not have jurisdi ction created standing for adjoining

property owners to challenge the agency’s decision. In this

case, Mr. Reecy stated that the BOT did not consider the user

fees collected for beach driving as revenue generating/income

related activities for purposes of asserting regulatory

jurisdiction pursuant to Florida Administrative Code Rule 18 -

21.004, et seq .

46. This determination is sufficient to place Petitioners

who own property adjoining or in proximity to the state's

sovereignty land within the zone o f interest if they can show

that the decision substantially effects them. Unfortunately,

Petitioners fail to make this showing for several reasons.

47. Their “injury” comes from the manner in which the

county is regulating the activity and the natur e of the “injury”

does not fall within those interests that are in the regulatory

jurisdiction of the BOT.

48. As stated above with regard to the first statement,

Petitioners must show that the Trustees’ statement that the fees

collected for beach dr iving do not trigger BOT jurisdiction

substantially affects them, and not the beach driving itself.

See Kruer v. Board of Trustees of Int. Impust Fund , 647

So. 2d 129, 132 (Fla. 1st DCA 1994), and Grove Isle, Ltd. v.

Bayshore Homeowners' Assn. , 418 So . 2d 1046 (Fla. 1st DCA 1982).

49. Again the second challenged statement is based upon

legislative history, and a clear intent that the BOT not

regulate this area through fees. Adopting as a rule the

statement that the Trustees do not regulate beac h driving would

not change the fact that beach driving occurs and is regulated

by the counties. Petitioners desire that the Trustees require a

lease do es not show how they are injured by the lack of BOT

jurisdiction.

50. The Trustees’ historic practic e and position in

litigation show that the BOT have treated beach driving as a

traditional public use rather than a private use. ( See City of

Daytona Beach Shores v. State of Florida , 483 So. 2d 405 (Fla.

1985); City of New Smyrna Beach v. Board of Truste es of the Int.

Impust Fund , 543 So. 2d 824 (Fla. 5th DCA 1989). Public

activities are subject to Trustees rules in Chapter 18 - 21 only

if they involve alteration of the sovereign lands or preemption

of traditional public activities.

51. The Trustees ’ current and historic position is that a

lease or other form of consent is not required under section 18 -

21.004 for beach driving. The Trustees do not consider a

“revenue generating/income related activity” under its rules.

52. While Petitioners have alleged that the beach driving

adversely affects public safety and related issues, the issue of

BOT jurisdiction based upon alteration of the public land or

preemption of public uses is not involved in the challenged

statements. It goes without sayi ng that the challenged

statement must relate to the alleged injury suffered. The

statement that fees for beach driving do not trigger BOT

regulation does not address or relate to an alleged impact upon

a traditional public activity. Conversely, the state ment about

the fees in no way restricts the BOT from asserting jurisdiction

via its powers to regulate impacts upon traditional public

activities. However, Petitioners are limited to issues arising

from fees to regulate beach driving. To satisfy the

suff iciently real and immediate injury in fact element, the

injury must not be based on pure speculation or conjecture.

Ward v. Board of Trustees of the Int. Impust Fund , 651

So. 2d 1236, 1237 (Fla. 4th DCA 1995).

53. It is a long - standing ru le of statutory construction

that more specific statutes take precedence over statutes of

general application. In interpreting its jurisdiction, the BOT

has recognized the legislative intent to grant the counties

where beach driving is traditional the aut hority to regulate

beach driving and charge user fees to regulate beach driving.

The passage of the provision specifically permitting counties to

collect user fees, thereby frustrating BOT's previous attempt to

regulate fees for beach driving, is clear ev idence of the

Legislature's intent to grant primary authority to these

counties to regulate beach driving.

54. The Legislative history shows an intent to carve out

an exception to the BOT’s jurisdiction with regard to beach

driving and with regard to the fees on beach driving. While

this specific statute takes precedence over more general

jurisdictional statements, it is also limited by its

explicitness. Where beach driving, for example, does interfere

with other traditional uses, the BOT has juri sdiction to adopt

such rules as it sees fit to harmonize those uses so that all

members of the public can enjoy their heritage.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED:

The Petition is denied.

DONE AND ORDER ED this 20th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Park way

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 20th day of February, 2004.

COPIES FURNISHED :

Ross Stafford Burn aman, Esquire

1018 Holland Drive

Tallahassee Florida 32301

Suzanne B. Brantley, Esquire

Regina M. Fegan, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard MS - 35

Tallahassee, Florida 32399 - 3000

Liz Cloud, Chief

Bureau of A dministrative Code

Department of State

The Elliott Building, Room 201

Tallahassee, Florida 32399

Scott Boyd, Acting Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed b y the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.