05-002036 Douglas Finlay vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Friday, December 22, 2006.

Summary: Respondent City of Naples failed to show that delineating new slow boat speed zones with a waterway marking permit was needed for vessel traffic congestion, significant risk of collision or threat to public safety. Recommend that the permit be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLLIER COUNTY BOARD OF COUNTY )

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) 05 - 2037

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RECOMMENDED ORDER

T his cause came on for f ormal proceeding and hearing before

P. Michael Ruff, duly - designated Administrative Law Judge of the

Division of Administrative Hearings . The hearing was conducted

in Naples , Florida , on February 22 through 24 , and by agreement

of the parties on June 26 t hrough 27, 2006 . The appearances

were as follows:

A PPEARANCES

For Petitioner: Frank E. Matthews , Esquire

D. Kent Safriet , Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

Colleen M. Gree ne , Esquire

Jeffrey A. Klatzkow , Esquire

Office of the County Attorney

Collier County Government Center

3301 Tamiami Trail, East

Harmon Turner Building, 8th Floor

Naples, Florida 34112

For Petitioners

pro se : Capt ain Allen Walburn

678 14th Avenue South

Naples, Florida 34102

Captain Eric Alexander

654 Squire Circle

Naples, Florida 34102

James Pergola

1830 Kingfish Road

Naples, Florida 34102

Douglas Fin la y

3430 Gulf Shore Boulevard, North, 5H

Naples, Florida 34103

For Respondent s: Elise M. Matthes, Esquire

Captain Allen Richards , Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahas see, Florida 32399

Robert G. Menzies , Esquire

James D. Fox , Esquire

Roetzel & Andress, LPA

850 Park Shore Drive

Trianon Centre, 3rd Floor

Naples, Florida 34103

For Intervenor s : Mimi S. Wolok , Esquire

ial Terrac e Drive

Naples, Florida 34103

Ralf Brooks , Esquire

1217 East Cape Coral Parkway, Suite 107

Cape Coral, Florida 33112

Michael R.N. McDonnell , Esquire

McDonnell Trial Lawyers

5150 Tamiami Trial North, Suite 501

Na ples, Florida 34103

STATEMENT OF THE ISSUE S

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).

PRELIMINARY STATEMENT

The City of Naples applied for a Waterway Marker Permit

(permit) in accordance with the requirements of Florida

Administrative Code Section 68D - 23.105(1)(b), in furtherance of

its ordinance enacted in order to impose slow speed zones in

relevant portions of Naples Bay. On May 5, 2005, the Florida

Fish and Wildlife Conservation Commission (FWC) , issued a Notice

of Intent to issue that permit.

Thereafter this ca use arose when the various Petitioners

named above filed timely Petitions for Administrative Hearing to

contest that Notice of Intent to Issue and to dispute that the

requirements of the above - cited rule had been met by the

applicant city. The dispute was referred to the Division of

Administrative Hearings on June 3, 2005, and was consolidated by

Order of June 14, 2005.

Thereafter a Motion to Relinquish Jurisdiction was filed by

the City which was denied by Order of August 31, 2005. The

formal hearing was originally scheduled for September 28 and 29,

2005, but had to be postponed due to the advent of Hurricane

Wilma and its aftermath on the e nvirons of the venue site,

parties, counsel, and witnesses. Thereafter, by agreement of

the parties the hearing was re - scheduled for February 22 through

24, 2006. The hearing was convened on February 22, 2006, and

was conducted through February 24, 2006, but was not concluded.

Thereafter, the parties advised the undersigned of their

conclusion that five continuous days would be needed to finish

the formal hearing. It developed that the only five continuous

days by which the multiple parties, counsel, and the

Administrative Law Judge could convene together was the week of

June 26, 2006. Accordingly, the parties st ipulated that the

hearing be held commencing on June 26, 2006, to be conducted

through June 30, 2006. The hearing was convened on June 26,

2006, and concluded on June 27, 2006.

When the cause came on for hearing , as noticed , the

Petitioner, Collier Cou nty (County) , presented the testimony of

Allen Walburn, a Naples resident and charter boat business

owner, by deposition. It also presented the testimony of

Captain Eric Alexander , also a Naples resident and charter boat

business owner; Jim Pergola, a Nap les resident and recreational

boat user of Naples Bay, and a homeowner living adjacent to

Naples Bay; Douglas Finlay, also a Naples resident and

recreational boater who uses Naples Bay; and Murdo Smith, a

representative of the Collier County Parks and Recr eation

Department. No separate exhibits were introduced into evidence

by the County.

The Petitioner Marine Industries Association of Collier

County, Inc. (MIACC), adduced the testimony of Edward K. Baker,

Ph.D. , accepted as an expert witness in the area of boat traffic

studies, boat congestion simulation and modeling; Major Paul

Ouellette of the FWC, who was accepted as an expert witness in

the area of vessel traffic safety, vessel operation, vessel

accident causes and waterways management; and City of Na ples

Police Chief Stephen Moore, and Lt. Ed Traszyk, accepted as

experts in law enforcement procedures and identification of

safety issues on roadways and waterways. MIACC also presented

the testimony of John Staiger, Ph.D. , a former City of Naples

Natura l Resources Director; Russ R. Ayres, City of Naples Marine

Unit Officer; Phil Osborne, a representative for MIACC and

Naples Boat Mart Owner; Phil Jentgen, a representative of MIACC

and a Naples Marina Co - owner , and the testimony of Rocco Marion

and Joe Sc alaro, both Collier County Sheriff's Deputies, by

deposition.

The pro se Petitioners testified on their own behalf. They

did not introduce any separate exhibits into evidence.

The City presented the testimony of David Lykins, the City

of Naples Direct or of Community Services and Andrew Anderson,

who was accepted as an expert witness in the areas of boat

handling, boat traffic safety, vessel accident causes and

prevention, and vessel operations.

The FWC presented the testimony of Major Paul Ouellette, an

FWC representative and section leader for the B oating and

W aterway Section within the D ivision of L aw E nforcement of FWC.

The FWC introduced one exhibit which was admitted into evidence.

The City introduced E xhibits 1 through 35, 38 through 41,

which were admitted into evidence , albeit with restrict ive

rulings as to hearsay as to E xhibits 4, 5, 6, 10, 15 through 17,

20, 21, 23, and 24.

The MIACC introduced 18 exhibits which were admitted into

evidence. Thus , E xhibits 1, 2, 3, 4, 5, 6, 8, 10, 12, 13, 21,

25, 26, 30, 31, 32, 33, and 34 have been admitted into evidence.

All parties adopted the testimony and exhibits of those

parties with which they have commonality of interest and are

similarly aligned.

The Intervenor, the Citizens to Preserve Naples Bay , Inc.

(Citizens) , presented the testimony of Walter Timmins, a Naples

resident and president of Citiz ens. Citizens also introduced

E xhibits 1 , 2 , and 4 which were admitted into evidence.

The Intervenor Conservancy of Southwest Florid a Inc.

(Conservancy) , presented the testimony of Kathleen Adams, its

administrative assistant ; Robert Schmidt, an Environmental

Research Manager at the Conservancy; and Gary Davis, who is an

attorney and consultant with the Conservancy. Additionally, the

Conservancy introduce d E xhibits 1 through 8, 10, 11, 12, 13, 14,

and 15 into evidence.

Upon conclusion of the proceeding , the parties elected to

have the matter transcribed and agreed to an extended briefing

schedule. It was thus stipulated and ordered that proposed

recommen ded orders were to be filed 30 days after the transcript

was filed. The Proposed Recommended Orders have been timely

filed and have been considered in the rendition of this

Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Eric Alexander, is a resi dent 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.

2. The Petitioner , Douglas Fin lay 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.

3. 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.

4. 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 N aples Bay and Collier

County.

5. 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 ord inances .

6. The Petitioner, Marine Industries Association of

Collier County, Inc. (MIACC), is a non - profit asso ciation of

businesses which are directly or indirectly involved in the

marine i ndustry 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,

a nd for recreational boating and recreational and commercial

fishing purposes.

7 . 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.

8 . The Responden t , 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, a nd the related rules promulgated

in Florida Administrative Code Chapter 68.

9 . The Intervenor, Conservancy of Southwest Florida

(Conservancy ) , is a Florida non - profit corporation. Its purpose

is the protection of the natural environment of Southwest

F lorida, including advocacy, education and research.

10 . 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 a ffecting

Naples Bay, Citizens considers questions of physical , chemical,

biological , and navigational safety.

The Waterway Marker Permit Application

11 . Naples Bay is a water b ody 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 ext ends southward

of Naples Bay in the direction of Marco Island. Naples Bay

contains a federally - maintained channel used for navigation and

commerce.

12 . Naples Bay is both a destination and a transit

waterway used by local business es , citizens, and touri sts for

recreational , business , and commercial purposes. It is used for

a wide variety of boating purposes and interest s , including

commercial fishing, commercial charter boat operations,

recreational boating, and recreational fishing purposes , as well

as by institutional/scientific users.

13 . 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 (20 04), 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.

14 . 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.

15 . 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 ma r king . . .

navigable water under concurrent

jurisdictio n of the Coast Guard and the

division shall be made to the division. . .

." (Emphasis supplied).

16 . Section 327.40, Florida Statutes, was amended in 2000

to provide FWC with the authority to adopt regulations to

implement that statutory section.

17 . 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

R ule (Florida Administrati ve 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 circumstance s:

(1) 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 fact s and circumstances:

* * *

(b) For a slow speed minimum wake boating

restricted area if the area is:

* * *

(4) Subject to unsafe levels of vessel

traffic congestion.

(5) Subject to hazardous water levels or

currents, or containing other navigational

hazards.

(6) 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).

18 . The previous rul es , prior to 2001 , contain ed n o

similar factual criteria to those now found in the above - quoted

rule. There are actually six factual criteria in the R ule, but

only criteria four, five, and six , quoted above , are at issue in

this proceeding , as stipulated by the parties.

19 . The FWC issued a Notice of Intent to grant the permit

stating that the FWC's B oating and W aterways S ection found that

the criteria in their referenced rule had been met. See City

Exhibit 26 in evidence.

20 . In arriving at this Notice of Intent to grant the

perm it application the FWC did not, however, independently make

a determination or confirm that any of the factual circums tances

referenced in the above R ule, and , specifically , subse ctions

four through six of the R ule , actually existed. Rather, FWC

assumed t hat all the statements in the application were true and

issued the Notice of Intent to grant the permit.

Standing

21 . Collier County is a political subdivision of the State

of Florida. It expends county funds to provide for the patrol

and regulation o f 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 count ies to "establish and

administer program s of . . . navi gation . . . and to cooperate

with governmental agencies and private enterprises in the

development and operation of such programs. "

22 . Collier County also owns and operates the only county -

owned boat launching facility on Naples Bay. Collier County

ci tizens have the right to access and enjoy Naples Bay and the

waters beyond Naples Bay through that access, including the Gulf

of Mexico.

23 . Collier County has concurrent jurisdiction over Naples

Bay and , like the other Petitioners, is concerned with

rec reation and enjoyment of use of the waterways of Naples Bay ,

including access to the Bay and adjacent waterways through

traverse of the bay.

24 . The Petitioner , Eric Alexander is a resident of

Collier County and has been for over 18 years. He is a lic ensed

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 ne arby 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 bu siness will be substantially a ffected

by the slow speed zones.

25 . The Petitioner , Douglas Fin lay 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

navigationa l 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 , wil l 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, a nd wind conditions at the entra n c e to

the Gulf . Mr. Fin lay 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 resul tant long transit times

through Naples Bay.

26 . The Petitioner , James Pergola resides on the waters of

Naples Bay by owning a home on a canal that communicates with

the b ay. He has been a resident of Collier County for more than

29 years and is a recre ational 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 adversel y 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.

27 . The Petitioner , Allen Walburn is a licensed boat

captain and owns and operates a charter boat business. H e

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 b ay . The restrictions at issue would adversely affect h is

access and the time of access through the waters o f the bay , to

additional water ways and to the Gulf. The proposed speed

zones , and the ir adverse e ffect 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 o ne 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 re aching

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

i nterests related to vessel operations in the waters of Naples

Bay.

28 . 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 Na ples 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 profess ionals and charter boat businesses.

29 . 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 sell ing, servicing, and

maintenance of boats, marine contracting, charter fishing and

general recreational boating.

30 . The members ' market for their products and services,

their revenues and the costs of their doing business depends

substantially on reasona ble public access , transit and safe use

of the navigable waters in Naples Bay and the use of adjacent

waters , which requires Naples Bay transit.

31 . M embers of MIACC have lost some business in potential

sales of boats and boat slip rentals, from customer s 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

f rom 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 eff ect.

32 . 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 m ore 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.

33 . MIACC an d 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 incr ease the time for recreational

fisherm e n members of the association to navigate to and between

their fishing grounds as well.

34 . The proposed slow speed zones will affect MIACC

members by causing additional vessel congestion caused by

excessively slow s peeds 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.

35 . The proposed speed zones will affect the members

traversing Naples Bay by slow speeds increasi ng the risk of

dangerous weather conditions.

36 . The corporate purpose of MIACC is to: r epresent 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

circ umstances of Florid a waterways. See MIACC Exhibit 26 in

evidence.

37 . 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.

38 . 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 pres cribed 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, docket ing,

equipping, servicing, maintenance , and operati on of boats on the

b ay and adjacent waterways .

39 . 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.

40 . 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

sampl ing 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 Ski ff 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 sa mpling. 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.

41 . 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

question s involved , in matters concerning the bay , upon which it

decides to take a position. Citizens has been involved in

issues regarding Naple s Bay over many years, including the

Naples Bay Project Committee upon which its p resident, Harry

Timmons, sat by appointment. That committee investigated Naples

Bay safety and made recommendation s to the Naples City Council

regarding vessel traffic conge stion and vessel speed zones.

42 . Some 352 citizens members own homes on Naples Bay or

on channels or can a ls connected to the bay. Both Mr. Timm i ns

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 operat e

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 boat s on Naples Bay for many years.

Levels of Vessel Traffi c Congestion

(Florida Administrative Code Rule 68D - 23.105(1)(b)(4))

43 . The applicant City presented the testimony of expert

witness Andrew Anderson. Mr. Anderson is a Marine C onsultant.

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 h a s

captained vessels of varying sizes during his Coast Guard

tenure. He has publishe d articles and lectured on boating

safety and has been recognized as an expert in boating safety,

seamanship, and boating accident s in state and federal courts.

He reviewed the City's exhibits, the depositions in this case,

boating citations , accident rep orts, and Coast Guard commission

records in preparing for his testimony.

44 . Mr. Anderson believes congestion is any situation with

a sufficient number of vessel s within a certain geographic area

and , giv en the speed s at which they are operating , that th ere

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."

45 . 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 ; n ot 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 th e vessels it takes to have a

congested situation."

46 . Thus Mr. Anderson expressed the view that Naples Bay

was subject to unsafe level s of vessel traffic congestion. The

basis for his opinion, however, was a mere two hours he spent on

Naples Bay on t hat 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.

4 7 . 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 saf ety 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 .

48 . Other subject ive testimony , offered by the

Petitioners , concerning assess ment 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 patrol led the

bay five days a week for the last three years; and the

Petitioners Pergola and Finlay, collectively testifie d that it

was their opinion that the bay was not subject to unsafe levels

of vessel traffic congestion.

49 . Objective evidence concerning vessel traffic

congestion and representing an objective standard there for , was

presented by Petitioner MIACC's exper t 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 vessel s

navigating the bay, and the inventory of vessels with access to

the bay.

50 . 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 H eniger 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 LO S 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.

51 . This methodology showed the carrying capacity of

Naples Bay to be 528 vessel s per hour (this is aside from the

question of what level of congestion that represents).

52 . 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 r epresents a range of

vehicles using the road in comparison to the road capacity.

53 . 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.

54 . The Heniger and Ray study appl ied 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 w hich 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

man euverability 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

representin g 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 fo rward progress.

55 . 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.

56 . 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 percen t 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.

57 . The LOS methodology is an objective method by which to

analyze vesse l traffic on the bay established by the testimony

and evidence elicited through Dr. Baker , as well as Dr. Staiger .

58 . 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 o r B level on 10 out of 13 segments of the

bay. O f 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.

59 . 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 a n unsafe level of vessel traffic congestion.

60 . The City of Naples Marine Unit Office r 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.

61 . The Naples Bay traffic studies , includi ng those of

Dr. Baker and Dr. Baker's testimony, are more objective in terms

of applying an objective standard and methodology . T he

metho dolog y is deemed to be acceptable for practioners and by

practioners in Dr. Baker's field of expertise . B ecause of th e

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

per suasive , 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, Cur rents or Other Navigational Hazards

(Florida Administrative Code Rule 68D - 23.105(1)(b)(5) )

62 . 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 tha t the area

contains other navigational hazards.

63 . The City seems to contend that boats which are

accelerating or decelerating upon leav ing or entering the

existing slow speed zones themselves constitute " navigational

hazards. " While the term "navigati onal 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 present s sufficient danger to

navigation so as to require expeditious, af firmative 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

oper ating 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.

64 . S ome 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 ti dal currents in several areas,

There is no persuasive eviden ce, however, to show the se are

anything other than normal physical complications to be

contended with b y a reasonably prudent mariner , operating a

vessel in the areas in question. They do not pose hazardous

conditions, in terms of water l evels, currents, or navigational

hazards.

65 . 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

contain s other navigational hazar ds. 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 con clude 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

area s that are subject to these hazardous factors.

Whether there is a Significant Risk of Collision or a

Significant Threat to Public Safety a s Demonstrated by Accident

Reports, Boating Citations , Vessel Traffic Studies, or Other

Cred itable Data

Flor ida Administrative Code Rule 68D - 23.105(1)(b)(6)

66 . 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 th e bay safer for boat operation and

traffic. Such testimony from Mr. Timmins and others, recounted

anecdotal incidents where boating accidents occurred . S everal

of these caused injuries, boat damages , threw boating passengers

out of their seats, on one oc casion 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 . H e 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 c h annel

with th e channel entering into Dollar Bay .

67 . 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 decrea sed , that Naples Bay could be rendered

"safer." However, rendering Naples Bay simply "safer" i s 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 zone s .

Accident Repo rts

68 . 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.

69 . Major Ouellette of the FWC, in his expert opinion,

c oncluded 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 thos e 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.

70 . The evidence adduced by the City and th e 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.

71 . Dr. Baker performed an analysis correlating the number

of accidents to t he number of vessel trips taken in Naples Bay,

however. Dr. Baker's analysis using the eight accidents

contend ed to be relevant by the City and the Intervenors , rather

than Major Ouelette's finding of four relevant accidents,

d etermined 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 pre dicated on the accident reports. Eight accident s

over a five - year period is not a "significant risk of collision

or significant risk to public safety."

72 . The City of Naples Police Department's Marine Unit is

charged with enforcing regulations on Naple s 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 additiona l

enforcement efforts because, as established by Ltaczyk, it

experienced no significant risk of collisions or treats to

public safety.

73 . If such additional enforcement action s 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 C ity police department , through

Chief Moore, however, has not informed or notified the C ity

manager , C ity counsel or other C ity officials that additional

regulations were needed to address any safety issues on Naples

Bay . I t did not deem such issues to be significant enough.

74 . No Marin e Unit O fficers 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 traf fic congestion or significant risk of

collision or threats to public safety.

75 . Major Ouellette established , with his expert

testimony , that the accident data did not demonstrate "a

significant risk of collision or significant t h reat 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

76 . 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 citation s may demonstrate a n 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,

establish ed that boating citations were insufficient to support

a conclusion that new slow speed zones were needed.

Vessel Traffic Studies

77 . As found above , Dr. Baker's testimony and his vessel

traffic studies and analysis demonstrate that Naples Bay is

operati ng 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 " Signi ficant

Risk of Collision or a Significant Threat to Public Safety"

78 . 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 o f 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.

79 . 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 thr eat

to public safety on the bay.

80 . Additionally, the Petitioner's witnesses, Police Chief

Moore and Ltaczyck , determined that there w ere 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 personne l 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 obser vances , to embark on such addition al

enforcement actions.

81 . Additionally, two Collier County Sheriff's Department

Marine Unit Deputies, Roc c o 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.

82 . Because it was based upon thousand s of hours operating

vessels on Naples Bay , at all times of the day , week and year ,

the testimony of Capt. Alexander establish ed that the b ay 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 .

83 . In summary, the testimony and evidence adduced by th e

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

boati ng citations , vessel traffic studies , or other cred itable

data demonstrate a significant risk of collision or significant

risk to public safety.

CONCLUSIONS OF LAW

84. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (200 5 ).

85 . The issu e of the applicant ' s entitlement to a permit

is governed by Chapter 327 , and specifically Sections 327.40 and

327.41, Florida Statutes (2004), as implemented by Florida

Administrative Code Chapter 68D - 23.

86 . I f an agency notices its intent to grant a permit

application, the applicant for the permit has the initial burden

to establish a prima facie case at the administrative hearing as

to entitlement to the perm it. Florida Department of

Transportation v. J.W.C. Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA

1981). Once the applicant has established its prima facie case,

the burden to go forward with evidence contrary thereto shifts

to the Petitioners to present contra ry evidence of equivalent

quality. J.W.C. Company, Inc. , supra at 789, 790.

87 . The issuance of the permit must be based solely on

compliance with the applicable permit criteria contained in

statute or rule. Counsel of the Lower Keys v. Toppino , 429 So.

2d 67 (Fla. 3rd DCA 1983).

Standing

88 . The burden is on the Petitioners to establish their

standing. See Department of Health and Rehabilitative Services

v. Alice P. , 367 So. 2d 1045, 1052 (Fla. 1st DCA 1979).

89 . Section 120.569(1), Florida Statute s, provides for

proceeding s to determine the "substantial interests of a party."

In order for an association to have standing as a substantially

affected party, it must demonstrate that:

(1) A substantial number of its member s ,

although not necessarily a majority, are

'substantially affected' by the challenged

rule; [2] the subject matter of the rule

[is] within the association ' s general scope

of interest and activity; [3] the relief

requested [is] of the type appropriate for a

trade association to receiv e on behalf of

its members.

Florida Home Builders Association v. Department of Labor and

Employment Security , 412 So. 2d 351, 353 - 54 (Fla. 1982); Farm

Workers Rights Org., Inc., v. Department of Health and

Rehabilitative Services , 417 So. 2d 753, 754 (Fla 1st DCA 1982)

(which extended the three part associational standing test to

proceeding s in which substantial interest s are determined under

(now) Section 120.569, Florida Statutes).

90 . In order for an individual to have standing as a

substantially affe cted party, he or she must establish; "(1) a

real and sufficient immediate injury in fact; and (2) that the

alleged interest is arguably within the zone of interest to be

protected or regulated." See , e.g. , Ward v. Board of Trustees

of the Internal Improv ement Trust Fund , 651 So. 2d 1236, 1237

(Fla. 4th DCA 1995).

MIACC

91 . Representatives o f the MIACC, who regular ly navigate

the waters of Naples Bay, testified that they and their members

will be injured by the slow speed zones' interference with their

r ights to navigate, boat, and conduct commerce. The proposed

slow speed zones will have an adverse effect on commerce in

Naples Bay.

92 . Members of MIACC showed that the speed zones will

impede their ability to conduct commerce and traverse the bay by

ma rkedly increasing travel time. In addition, the proposed slow

speed zones themselves will create safety issues with regard to

boating traffic. Among the interest s regulated and protected by

Chapter 327 and Sections 327.40 and 327.41, Florida Statutes, as

implemented by Florida Administrative Code Chapter 68D - 23, are

navigation safety and commerce . These statutes and rules, in

effect, provide a zone of interest protection that can be

asserted against needless and unwarranted waterway regulation.

93 . The MIACC's interest s and its activites include the

promotion and protection of recreational boating as a

traditional past - time and source of tourism commerce , the

promotion of improved conditions and general well - being of the

commerce and navigation of water ways in Collier County. These

interests and activities occur within the zone of interest

protected by Chapter 327, Florida Statutes , and Florida

Administrative Code Chapter 68D - 23. Therefore, it has been

demonstrated that MIACC and its members are "subst antially

affected" by the issuance of the permit and any resulting

additional slow speed zones.

94 . The preponderant , persuasive evidence has established

that the above - referenced , three - part associational standing

test has been met. Concerning the firs t factor of that test ,

regarding a substantial number of the association 's members

being "substantially a ffected," it has been stipulated that two

members of MIACC would constitute a substantial number. It has

thus been established that a substantial numb er of the members

will be adversely affected, in view of this stipulation , as well

as the preponderant , persuasive evidence adduced by MIACC and

the other Petitioners.

95 . It has also been established by preponderant ,

persuasive evidence that the use and regulation of the waterways

in Naples Bay, including the regulation imposed by the permit

application at issue, occurs within MIACC's general scope of

interest , activity and purpose. The relief request ed by MIACC

is the appropriate type of relief to seek and receive on behalf

of its members. Accordingly, it has been established that MIACC

has standing.

Collier County

96 . Collier County is a political subdivision of the State

of Florida . Section 327.22(1), Florida Statutes, provides :

" nothing in this chapter shall be construed to prohibit any

municipality or county that expends money for the patrol,

regulation, and maintenance of any lakes, rivers, or waters, and

for other boating - related activities in such municipality or

county, from regulating vessels resident in such municipality or

county. " This statute also provide s , "any county and the

municipalities within the county may jointly regulate vessels."

See § 327.22(1), Fl a. Stat.

97 . Collier County thus has concurrent jurisdiction over

the w aters in question , along with the municipality of Naples

(and the FWC for that matter) . T hus it has an interest in

regulating vessels and expends funds for patrol and regulation

of the waters in question . T he regulation of those waters posed

by the permi t application , and rule at issue , implicate issues

that arise within the " zone of interest , " in which the county's

substantial interest s have the opportunity for protection.

98 . Collier County's standing is also borne out by the

language in Section 125.0 1(j), Florida Statutes, which grants

powers and duties to counties to "establish and administer

programs of . . . navigation . . . and cooperate with

governmental agencies and private enterprises in the development

and operation of such programs."

99 . Mo reover, Collier County has standing to challenge the

agency action in this proceeding based on its particular

substantial interest s . Collier County owns and operates the

only county - owned boat launch facility on Naples Bay. Collier

County's standing is a lso supported by the language of Florida

Administrative Code Rule 68D - 23.104, concerning the placement of

markers , wherein it provides: "the division must consult,

coordinate, or cooperate with any other governmental entity

having concurrent jurisdiction over the waters for which the

permit is required." While the use of the word "may" indicate s

that such coordination or cooperation is not a mandatory burden

on the FWC , this rule language also contemplates a "zone of

interest" or opportunity within which the county may advance or

protect its substantial interests.

100 . Section 120.52(12)(b), Florida Statutes, defines

party as one "whose substantial interest will be affected by

proposed agency action, and who makes an appearance as a party."

The relief r equested by Collier County in this proceeding is an

appropriate type of relief and occurs among its substantial

interest s which it is authorized to seek to protect in a

proceeding such as this. Accordingly, the preponderant ,

persuasive evidence establishe s the standing of Collier County

to participate in this proceeding in opposition to the permit

sought.

Pro Se Petitioners

101 . Individual s seeking to establish standing as a

substantially affected party must show , "(1) a real and

sufficiently immediate i njury in fact; and (2) that the alleged

interest is arguably within the zone of interest to be protected

or regulated." See Ward v. Board of Trustees of the Internal

Improvement Trust Fund , 651 So. 2d 1236, 1237 (Fla. 4th DCA

1995). The Petitioners ' fear ed injury is real and immediate

since the propose d slow speed zones will have a substantial

effect on each of them.

102 . Among the interests regulated and protected by

Chapter 327, including Sections 327.40 and 327.41, Florida

Statutes, as implemented by Florida Administrative Code Chapter

68D - 23, are navigation, safety, and commerce. These statutes

and rules protect against needless and unwarranted regulation of

waterways. The pro se Petitioners ' interest s are thus within

the zone of interest protected by Chapter 327, Florida Statutes,

and Florida Administrative Code Chapter 68D - 23.

103 . The proposed speed zone changes will have a

substantial effect on Captain Walburn and his charter boat

business. Captain Walburn is an a ffected party as an individua l

because he navigates vessels on Naples Bay for both recreational

and commercial boating purposes. He runs a business of tak ing

charter fishing party clients fishing in the water s in and

around Naples Bay , especially in the Gulf of Mexico. He has to

be able to navigate Naples Bay in a timely fashion in order to

conduct this aspect of commerce on Naples Bay. His ability to

navigate and conduct commerce on Naples Bay will be

significantly impeded if the slow speed zones are enacted.

104 . The same is tru e of the interests of Captain

Alexander. His livelihood , like Walburn's , is dependent on

being able to reasonably navigate Naples Bay to conduc t commerce

in the form of charter fishing parties through his charter boat

business. He, like Walburn, navigate s vessels on Naples Bay for

this commercial boating purpose , as well as for recreational

purposes. His ability to navigate and conduc t commerce on

Naples Bay will be significantly impeded if the permit , with its

speed zones , is issued. Both Captain Walbu rn 's and Captain

Alexander's interests will be adversely affected. One reason

they will be is that , in the conduct of the charter fishing

operations , ha lf - day trips are important. If the 4.4 mile

stretch of Naples Bay is essentially rendered a slow speed zone ,

the long transit times involved , coupled with the already

operative time period spent preparing for each charter boat

trip , and in winding it up after return to the docks, may have

the significant , adverse effect of largely eliminating the

ability to do a second half - day trip per day for Captain

Alexander and Captain Walburn and their business es . T heir

rights and ability to access and reasonably use Naples Bay for

navigation and commerce would be substantially limited and

unreasonably restricted ba sed upon the preponderant , persuasive

evidence adduced in this proceeding. Thus both Captain Walburn

and Captain Alexander have standing.

105 . James Pergola is an affected party. He is an

individual who navigates vessels on Naples Bay for recreational

purposes. His navigation will be substantially impeded if the

City's permit is issued because of the long transit times

engendered i n traversing Naples Bay to the Gulf. The proposed

restrictions will limit Pergola's access to the Gulf and to

other destin ations beyond Naples Bay , including s outh through

Dollar Bay to Marco Island.

106 . The same sort of considerations apply to Doug las

Finlay , who also uses the bay to navigate vessels for

recreational purposes. The same sort of impediments will a ffect

t he Petitioner Fin lay . These Petitioners, particular ly the

Petitioner Finlay established that if the slow speed zones

involve the area where Naples Bay , through the pass ,

communicates with the Gulf , then slow speed zones can pose an

actual danger to vessel s and passengers navigating that area .

This is particularly so when outgoing tides collide with

landward bound winds and waves . This can cause very rough seas

and danger ous currents . Under these conditions vessels moving

slowly may be endangered versus those moving at a reasonable

speed and thus more able to safely steer and quickly navigate

through the danger ou s area referenced. It has thus been

established by preponderant , persuasive evidence, given the

above findings of fact , that the Petitioners Per gola and Finlay

also have standing.

107 . The Conservancy has standing in accordance with

Section s 120.57 and 120.52(12)(b), Florida Statutes, because of

its asserted substantial interests , with regard to the general

category of scientific research on Nap les Bay , through the use

of a small boat for its staff, it fears it may be affected by

the outcome of this proceeding. It is concerned with the safety

of its researchers during their boating experience on Naples

Bay. The boating safety question or concer n by the Conservancy

is properly within the zone of interest s protected by the

statutes involved in this case , as well as the above - cited rule.

The Conservancy is a non - profit Florida Corporation incorporated

for more than one year prior to its interventi on in this case

and has more than 25 members in Collier County. It was formed

for the purpose of protecting the environment, fish and wildlife

resources and water quality. It thus also has standing for

purpose of Section 403.412(6), Florida Statutes.

10 8 . Citizens also has standing under Sections 120.57 and

120.52(12)(b), Florida Statutes, because of its fears that its

substantial interest, referenced in the above findings of fact ,

with regard to Naples Bay will be affected by the outcome of

this procee ding. It has a concern for the safety of its members

operating their vessels on Naples Bay , and public boating safety

is clearly within the zone of interest s protected by the

statutes involved in this proceeding , as well as the referenced

rule regarding p ermit approval. Citizens ha s standing for

purposes of Section 403.412(6), Florida Statutes, because it is

a Florida non - profit corporation which has been incorporated for

more than a year prior to its intervention in this proceeding.

It has more than 25 members in Collier County and was formed for

the purpose of protecting the environment and water quality in

Naples Bay.

Waterway Marker Permit Application Approval Criteria:

Florida Administrative Code Rule 68D - 23.105(1)( b )

109 . The Respondent FWC conte nds that it is not required

to make an independent factual determination concerning whether

the application and supporting documentation meet one of the six

enumerated factual circumstances or criteria contained in

Florida Administrative Code Rule 68D - 23.1 05(1)(b). Rather, it

maintains that it has a duty to simply determine , when it

receives a waterway marker permit application, whether the

necessary items or documents are included in the application.

The commission in essence contends that it accepts all factual

statements as true because in its view, it cannot question the

findings of the local legislative body, here the Naples City

Council in enacting a local ordinance, on authority of Lee

County v. Lippi , 662 So. 2d 1304 (Fla. 2nd DCA 1995) and Ventura

v. Lee County , 18 FALR 3076 (Final Order entered June 17, 1996).

110 . The Lee County and Ventura decisions are inapplicable

to this case. Both of those cases involved direct challenges to

a local government ' s ordinance. In those cases attacks were

mad e on the ordinances themselves. In the instant case the

Petitioners are not challenging any aspect of the ordinance, but

rather are challenging the permit application and the factual

statements made in the application. The Lee County and Ventura

decision s are thus inapplicable. Even if they were applicable ,

they have since been statutorily over - ruled.

111 . In 1996, when the Lee County and Ventura cases were

decided, Florida Administrative Code Rule 68D - 23.105(1)(b), did

not exist. A predecessor , Flori da Administrative Code Rule 63N -

23, contained no fact - based criteria such as those now found in

Florida Administrative Code Rule 68D - 23.105(1)(b).

112 . Section 327.40(1), Florida Statutes, provides that:

Waterways in Florida which need marking for

safet y or navigational purposes shall be

[uniformly] marked . . . (emphasis supplied)

Section 327.40(2)(a), Florida Statutes, further requires, after

the submission of an application that the "division will assist

the applicant to secure the proper permission from the Coast

Guard, make such investigations as needed , and issue the

permit." (emphasis supplied)

113 . After the Lee County and Ventura decisions, the

Legislature amended Section 321.40(2)(c), Florida Statutes, in

2000, specifically authorizing FWC t o "adopt rules pursuant to

Chapter 120 to implement this section."

114 . Thereafter in December 2001, the FWC amended Florida

Administrative Co de Rule 68D - 23.105(1)(b), implementing the

statutory mandate to adopt rules. This rule set forth the

circumst ances when waterways need marking for safety or

navigational purposes. The rule sets forth six fact - based

circumstances in which waterways need marking for safety or

navigational purposes.

(1) The division shall find a valid vessel

traffic safety or pu blic safety purposes is

presented for ordinances adopted pursuant to

Section 327.60, Florida Statutes, under the

following fact s and circumstances:

* * *

(b) For a slow speed minimum wake boating

restricted area if the area is:

* * *

(4) Subject to unsafe levels of vessel

traffic congestion.

(5) Subject to hazardous water levels or

currents, or containing other navigational

hazards.

(6) An area that accident reports, uniform

boating citations, vessel traffic studies,

or other credible data demon strate to

present a significant risk or a significant

threat to public safety. (Emphasis

supplied).

116 . The plain language of Florida Administrative Code

Rule 68D - 23.105(1) requires the Respondent FWC to make factual

findings. Florida Administrative Code Rule 68D - 23.105(1)

provides, "the division shall find . . . ."

117 . When a statute or rule is clear and unambiguous, the

court will look at the plain language and give each word its

full effect and meaning , irrespective of the agency's

interpretatio n of the statute or rule. See Atlantis Perdido

Association, Inc., v. Bobby L. Warner , 932 So.2d 1206 (Fla. 1st

DCA 2006) , quoting from State Department of Revenue v. Lockheed

Martin Corp. , 905 So. 2d 1017, 1022 (Fla. 1st DCA 2005) (holding

that a court "n eed not consider the department's interpretation

of the statute ' s legisl ative history" when the statute or rule

is "clear and unambiguous").

118 . The Respondents ' and Intervenors ' position that the

FWC may accept the City's statement in the permit applic ation to

the effect that the application meets any one of the six

criteria of Florida Administrative Code Rule 68D - 23.105, under

the theory that the Ventura and Lee County decisions preclude

the FWC from addressing the validity of the local government

ordi nance, ignores the plain meaning of that rule and is clearly

erroneous. See Atlantis Perdido Association, Inc., v. Bobby L.

Warner , supra . ("DEP's expertise requires us to consider its

construction of the statute carefully, but 'nothing requires

that we defer to an implausible and unreasonable statutory

interpretation adopted by an administrative agency'") (quoting

from Sullivan v. Florida Department of Environmental Protection ,

890 So. 2d 417, 420 (Fla. 1st DCA 2004)) .

119 . The Respondent FWC has the a uthority and obligation

to consider the City's permit application and make its own

independent analysis and determination as to whether the permit

application meets one of the six factual circumstances or

criteria of the FWC's own rule , Florida Administrat ive Code Rule

68D - 23.105(1)(b). While an agency's interpretation of its own

rules should be afforded deference, "judicial adherence to the

agency's view is not demanded when it is contrary to the

statutes [or rules] plain meaning." Sullivan v. Florida

De partment of Environmental Protection , 890 So. 2d 417, 420

(Fla. 1st DCA 2004) quoting Warner v. Department of Insurance

and Treasury , 689 So. 2d 1211, 1214 (Fla. 1st DCA 1997). "The

agency is obligated to follow its own rules." Vantage

Healthcare Corp., v. Agency for Health Care Administration , 687

So. 2d 306, 308 (Fla. 1st DCA 1997).

120 . The Respondent FWC and the City's position that it

merely reviews the waterways marker application at issue to

determine whether all the necessary information has bee n

provided in the application would render the FWC's duty only a

ministerial one. It would not thereby independently make a

determination or confirmation that any of the factual scenarios

o r criteria of the FWC's own rule ha s been met. Such an

interpreta tion is, however, contrary to the plain meaning of

both Section 327.40, Florida Statutes, and Florida

Administrative Code Rule 68D - 23.105(1)(b). It would render

those sections and criteria meaningless. It cannot be concluded

that the Legislature , in enac ting Section 327.40, Florida

Statutes, and the commission , in 2001 , when it enacted the

subject rule, did so, without a reason. There would be no

purpose for the statute or the R ule, in having specific factual

criteria for the grant of a permit , if the ag ency (and the

Division of Administrative Hearings by referral of the formal

proceeding challenging the agency permitting action) could not

judge whether the criteria in the R ule have been met.

121 . The Respondent City , has maintained throughout the

proce eding that FWC and the Division of Administrative Hearings

have no jurisdiction to consider the wisdom or validity or

purpose behind the ordinance adopted by the Naples City Council.

That position , however, confuses a review of the permit

application at i ssue with a review of the validity of the

ordin a nce.

122 . As concluded above, Florida Administrative Code Rule

68D - 23.105(1)(b) contains six specific fact - based circumstances

concerning when issuance of the waterway marker permit would be

authorized. Such a fact - based determination as to whether the

permit application meets those criteria is properly the subject

of an FWC determination and, by referral of the related formal

proceeding, of a determination by the Division of Administrative

Hearings.

1 23 . The Respondent , City e licited testimony from its

expert witness as well as another number of witnesses to the

general effect that slower speeds on Naples Bay would make the

bay "safer." However, making the bay safer is not the factual

or legal standa rd that the R ule requires in order for a

determination that the waterway marker permit should be issued.

Rather, a determination must be made whether the three fact ual

circumstances remaining at issue exist in order to determine

whether the permit s hould be issued.

Whether the Slow Speed Zone is in an Area Subject to "Unsafe

Levels of Vessel Traffic Congestion"

Florida Administrative Code Rule 68D - 23.105(1)(b)(4) .

124 . The preponderant , persuasive evidence culminating in

the above findings of facts est ablished that Naples Bay is not

subject to unsafe levels of vessel traffic congestion. This was

shown both by subjective testimony of witnesses as well as

through the objective standard eli cited through the testimony

and evidence brought forth through the Petitioner's expert ,

Dr. Baker. The LOS methodology is an objective method by which

to analyze vessel traffic congestion.

125 . The preponderant , persuasive evidence shows that the

bay currently experiences a LOS A or B at peak times and that a

small po rtion of the bay , or three segments thereof , from

Dr. Baker ' s study, operates at LOS C at peak times. LOS C was

shown by preponderant evidence to be an acceptable LOS for safe

operation of vessels on Naples Bay. Even if it did demonstrate

some congestion , it does not demonstrate "unsafe levels" of

vessel traffic congestion. The City and Intervenors did not

adduce preponderant , persuasive evidence that any alleged

congestion level was "unsafe." The testimony and evidence

adduced by the Petitioners is fou nd to be of a more persuasive

and creditable quality than that adduced by the City or

Intervenors in this regard and the proposed slow speed zones are

not found to be in areas that are "subject to unsafe levels of

vessel traffic congestion."

Whether the Sl ow Speed Zones is in an Area "Subject to Hazardous

Water Levels or Currents, or Containing Other Navigational

Hazards"

Florida Administrative Code Rule 68D - 23.105(1)(b)(5)

126 . The preponderant , persuasive evidence does not

demonstrate that new speed z ones are warranted because it does

not demonstrate that the area in question is subject to

hazardous water levels or currents or contains other

navigational hazards. This is so even if other navigational

hazards included vessel s moving under power or sail , because of

the findings and conclusions herein regarding the lack of unsafe

levels of vessel traffic congestion and the lack of a

significant risk of collision or significant threat to public

safety posed by vessel traffic. Moreover, the testimony

conce rning strong currents and water levels did not rise to a

level of proof establishing that the re are hazardous water

levels or currents which cannot be safely negotiated by

reasonabl y prudent boat operators , operating under extant legal

restrictions such as existing speed zones and the regulations

emanating from the United States Coast Guard regulations , and / or

state requirements , commonly referred to as "the rules of the

road." The preponderant , persuasive evidence demonstrates that

the area where the spee d zones are proposed is not subject to

hazardous water levels or currents and does not contain other

navigational hazards.

Whether the Slow Speed Zone is in an Area "That Accident

Reports, Uniform Boating Citations, Vessel Traffic Studies,

or Other Credibl e Data Demonstrate to Present a Significant Risk

of Collision or Significant Threat to Public Safety"

Florida Administrative Code Rule 68D - 23.105(1)(b)(6)

127 . The preponderant , persuasive evidence , culminating in

the above findings of fact , shows that over the last five years

a minimum of four accidents or a maximum of eight vessel

accidents might have been prevented by the proposed speed zone s,

assuming that boater compliance with the slow speed zones

proposed could be maintained.

128 . One accident f or every 67,500 boat trips on Naples

Bay, however, does not present a "significant risk of

collision."

129 . The vast majority of vessel accidents occurring in

the bay take place in already existing slow speed or idle speed

zones. The preponderant eviden ce shows that accidents and the

uniform boating citations issued by law enforcement occur the

vast majority of the time in the already existing slow or idle

speed zone areas because boating operators have failed to abide

by existing law, including, even wh ere proposed slow speed zones

do not exist, the mandatory "rules of the road" requirements.

Thus , the preponderant evidence relating to accident data on

Naples Bay , as well as to the records concerning boating

citations issued on Naples Bay , demonstrates that the proposed

slow speed zones are not in an area of "a significant risk of

collision or significant threat to public safety." For the same

reasons , relating to vessel traffic congestion, the vessel

traffic studies do no demonstrate that the proposed slow speed

zones are in an area that presents "a significant risk of

collision or significant threat to public safety."

130 . In summary, the expert opinion and evidence adduced

from Dr. Baker , as well as the testimony of Major Ouellette and

the five law enforcement officers who are responsible for daily

patrols on Naples Bay , is more credible and persuasive evidence

and data . This evidence, along with the other evidence adduced

by the Petitioners, shows that the areas proposed for the slow

speed zones in Naples Bay do not present a " significant risk of

collision or significant threat to public safety." (Emphasis

supplied). Thus , the evidence adduced by the Petitioners is

deemed more credible , persuasive , and preponderant in quality,

resulting in the con clusion that the permit should not be issued

as proposed.

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

par ties, 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 , 200 6 .

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

A llen Walburn

678 14th Avenue South

Naples, Florida 34102 - 7116

Eric Alexan der

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, Esquir e

ial 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 Stre et

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have t he right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.