95-002552RP
Bonita Bay Properties, Inc.; Jim Hohnstein; And Edward Fischl vs.
Department Of Environmental Protection
Status: Closed
DOAH Final Order on Tuesday, December 12, 1995.
DOAH Final Order on Tuesday, December 12, 1995.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8BONITA BAY PROPERTIES, INC., )
13JIM HOHNSTEIN, and EDWARD FISCHL, )
19)
20Petitioners, )
22)
23vs. ) CASE NO. 95-2552RP
28)
29DEPARTMENT OF ENVIRONMENTAL )
33PROTECTION, )
35)
36Respondent, )
38and )
40)
41SAVE THE MANATEE CLUB; FLORIDA )
47WILDLIFE FEDERATION; HIBISCUS )
51POINTE AT BAY BEACH, LTD.; and )
58IRA RAKATANSKY, )
61)
62Intervenors. )
64______________________________________)
65FINAL ORDER
67Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned
80Hearing Officer of the Division of Administrative Hearings, on July 31-August 4,
921995, in Tallahassee, Florida.
96APPEARANCES
97For Petitioner: Terry E. Lewis, Esquire
103Kenneth W. Dodge, Esquire
107Lewis, Longman & Walker, P.A.
1122000 Palm Beach Lakes Boulevard, Suite 900
119West Palm Beach, Florida 33409
124For Intervenor: Audrey E. Vance, Esquire
130Lee County 2115 Second Street
135Fort Myers, Florida 33901
139For Respondent: Jonathan Glogau, Esquire
144Attorney General's Office
147PL-01, The Capitol
150Tallahassee, Florida 32399-1050
153For Intervenors: David Gluckman, Esquire
158Save the Manatee Gluckman & Gluckman
164Club and Florida 541 Old Magnolia Road
171Wildlife Crawfordville, Florida 32327
175Federation
176For Intervenors: Cindy L. Bartin, Esquire
182Hibiscus Pointe Landers & Parsons
187at Bay Beach, Post Office Box 271
194Ltd., and Ira Tallahassee, Florida 32302
200Rakatansky
201STATEMENT OF THE ISSUE
205The issue presented is whether the Department of Environmental Protection's
215proposed Rule 62N-22.005, Florida Administrative Code, constitutes an invalid
224exercise of delegated legislative authority.
229PRELIMINARY STATEMENT
231Pursuant to Section 120.54(4), Florida Statutes, Petitioners filed their
240Petition for Administrative Determination of Invalidity of Proposed Rules
249challenging Rule 62N-22.005, Florida Administrative Code, in its entirety as an
260invalid exercise of delegated legislative authority, challenging specific
268portions of that proposed rule which would establish speed zones in specific
280geographic areas in Lee County, and challenging the sufficiency of the economic
292impact statement developed by the Department of Environmental Protection for its
303proposed rule. Thereafter, Lee County's Petition for Leave to Intervene in
314support of Petitioners' challenge to the proposed rule was granted, and Save the
327Manatee Club and the Florida Wildlife Federation's Petition to Intervene in
338support of the Department of Environmental Protection's rule, and the Petition
349to Intervene in Support of Proposed Rule 6N-22.005, F.A.C. filed by Hibiscus
361Pointe at Bay Beach, Ltd., and Ira Rakatansky were granted.
371At the final hearing, Petitioners presented the testimony of Grace Marie
382Johns, Ph.D.; Michael F. Stephen, Ph.D.; Bruce B. Ackerman, Ph.D.; R. Kipp
394Frohlich; James K. Hohnstein; Ross McWilliams; Joanne Bean; Dennis E. Gilkey,
405and by way of deposition, Stephen J. Boutelle, Edward T. Fischl, Michele
417Correia, and Patrick M. Rose. Additionally, Petitioners' Exhibits numbered 1-
42720, 24-37, 39, 40, 42, 43, 45, and 46 were admitted in evidence.
440Intervenor Lee County presented the testimony of Thomas A. Kucharski.
450Additionally, Intervenor Lee County's Exhibit numbered 1 was admitted in
460evidence.
461The Department of Environmental Protection presented the testimony of Scott
471Calleson, R. Kipp Frohlich, and Patrick M. Rose. Additionally, the Department's
482Exhibits numbered 1-3 and 5-9 were admitted in evidence.
491Intervenors Save the Manatee Club and Florida Wildlife Federation presented
501the testimony of Frederick W. Bell, Ph.D., and Patricia J. Thompson.
512Additionally, Save the Manatee Club and Florida Wildlife Federation's Exhibit
522numbered 1 was admitted in evidence.
528Intervenors Hibiscus Pointe at Bay Beach, Ltd., and Ira Rakatansky offered
539no evidence.
541On September 21, 1995, Intervenor Lee County filed its Notice of Withdrawal
553voluntarily withdrawing from this proceeding based upon its settlement agreement
563with the Department of Environmental Protection whereby the Department of
573Environmental Protection, subsequent to the final hearing, has agreed to a
584number of amendments to its proposed rule and has agreed to publish a Notice of
599Change announcing the revisions subsequent to the conclusion of this proceeding.
610The remaining parties except for Intervenors Hibiscus Pointe at Bay Beach,
621Ltd., and Ira Rakatansky have submitted post-hearing proposed findings of fact.
632A specific ruling on each proposed finding of fact can be found in the Appendix
647to this Final Order.
651STIPULATED FACTS AND LEGAL CONCLUSIONS
656A. Bonita Bay Properties, Inc. (hereinafter "Bonita Bay"), is the
667developer of a residential community in Lee County, which includes a full
679service marina consisting of 126 wet slips and 350 dry slips on the Imperial
693River. The development is an approved Development of Regional Impact pursuant
704to Chapter 380, Florida Statutes.
709B. Jim Hohnstein (hereinafter "Hohnstein") is a resident of Lee County and
722holder of a captain's license issued by the U.S. Coast Guard to operate and
736navigate passenger-carrying vessels of not more than 50 gross tons within 50
748miles of shore in the Atlantic Ocean and the Gulf of Mexico. Hohnstein is the
763manager of Bonita Bay Marina.
768C. Edward Fischl (hereinafter "Fischl") is a resident of Lee County and
781holder of a captain's license issued by the U.S. Coast Guard to operate and
795navigate passenger-carrying vessels of not more than 50 gross tons within 50
807miles of shore in the Atlantic Ocean and the Gulf of Mexico. Fischl is the
822owner and operator of a boat chartering business in South Estero Bay.
834D. The Department of Environmental Protection (hereinafter "Department")
843is the State agency responsible for adopting rules pursuant to Section 370.12,
855Florida Statutes. Such a proposed rule is the subject of this rule challenge.
868E. Save the Manatee Club (hereinafter "SMC") is a non-profit Florida
880corporation with over 550 members who reside within Lee County and whose main
893purpose is to protect and preserve Florida's remaining endangered West Indian
904manatee population, for the benefit of the manatees and of SMC and its members.
918Numerous members of the organization observe, study, and photograph manatees for
929educational and recreational purposes in the waters of Lee County sought to be
942regulated by the proposed rule. SMC sponsors and organizes outings to view,
954photograph, and study manatees in the waters of the State including areas for
967which speed limits are established by the proposed rule.
976F. Florida Wildlife Federation, Inc. (hereinafter "FWF"), is a non-profit
987Florida corporation with over 15,000 members within the State, many of whom
1000reside in and use the waters of Lee County. The main purpose of FWF is to
1016protect and assist in the management of Florida's wildlife and its habitat for
1029the benefit of FWF, its members, and all members of the general public who
1043desire to participate in outdoor recreation in Florida. The members of FWF
1055observe, study, and photograph manatees for educational and recreational
1064purposes in the waters of Lee County sought to be regulated by the proposed
1078rule.
1079G. Hibiscus Pointe at Bay Beach, Ltd. (hereinafter "Hibiscus Pointe"), is
1091a limited partnership organized under the laws of Florida. Estero Island
1102Partners is the general partner.
1107H. Ira Rakatansky (hereinafter "Rakatansky") is the owner of a unit in the
1121Hibiscus Pointe Development, with exclusive rights to boat slip #90.
1131I. On April 28, 1995, the Department published notice in the Florida
1143Administrative Weekly of its intent to adopt regulations establishing speed
1153zones in Lee County pursuant to Section 370.12, Florida Statutes.
1163J. On May 18, 1995, Bonita Bay, Hohnstein, and Fischl timely filed a
1176challenge to the proposed regulations.
1181K. All Petitioners and Intervenors in this proceeding have standing to
1192challenge or defend proposed Rule 62N-22.005, Florida Administrative Code.
1201L. Manatee protection zones may be established in State waters where
1212manatees are frequently sighted and it can be assumed that manatees inhabit such
1225waters periodically or continuously.
1229FINDINGS OF FACT
1232BACKGROUND
12331. The Department derives its authority to regulate the speed of motorboat
1245traffic for the protection of the manatee from Section 370.12(2), Florida
1256Statutes, the "Florida Manatee Sanctuary Act" (hereinafter "the Act").
12662. Two provisions within this Act describe the standard that must be met
1279before the Department may impose speed zones. Section 370.12(2)(j), Florida
1289Statutes, authorizes speed zones within specific identified geographic areas
"1298...where manatee sightings are frequent and it can be generally assumed that
1310they inhabit these areas on a regular or continuous basis." Section
1321370.12(2)(n) authorizes the Department to identify other areas where manatees
1331are "...frequently sighted and it can be assumed that manatees inhabit such
1343waters periodically or continuously" and then establish appropriate speed zones.
1353Although the specific authority for the challenged rule is subparagraph (n), in
1365practice, the Department does not differentiate between subparagraphs (j) and
1375(n) when establishing speed zones. The Department utilizes the same standards
1386or process regardless of which subparagraph is applicable.
13943. For the waters of Estero Bay, the Department proposes that North Estero
1407Bay be regulated at 25 miles per hour at all times. Conversely, it proposes
1421that South Estero Bay be regulated at "slow speed" at all times except for
1435certain portions of two marked channels that would be regulated at 25 miles per
1449hour. Rule 62N-22.002(7), Florida Administrative Code, defines slow speed as
"1459...the speed at which a vessel proceeds when it is fully off plane and
1473completely settled into the water."
14784. The Bonita Bay residential community and marina is located on the
1490Imperial River in Lee County, and a boat leaving the marina must travel west
1504down the Imperial River and north through South Estero Bay to reach the Gulf of
1519Mexico. Captain Hohnstein conducted a timed run from the Bonita Bay Marina to
1532the Gulf of Mexico and found that it took approximately 18 minutes under
1545existing regulations and approximately 40 minutes under the proposed rule.
1555Thus, under the proposed rule, it will take over twice as long for a boat to
1571make this trip, negatively impacting the demand for slips in the marina and the
1585value of Bonita Bay's boat slips. Recreational and commercial use of South
1597Estero Bay will also be greatly restricted if the proposed rule is adopted.
1610ECONOMIC IMPACT STATEMENT
16135. Section 120.54(2)(b), Florida Statutes, requires the Department, under
1622certain circumstances, to prepare an Economic Impact Statement (hereinafter
"1631EIS") prior to rule adoption. Section 120.54(2)(c) then sets forth eight
1643requirements that must be included within the EIS for it to be valid. These
1657include:
16582. An estimate of the cost or the economic
1667benefit to all persons directly affected by
1674the proposed action;
16773. An estimate of the impact of the proposed
1686action on competition and the open market for
1694employment, if applicable;
1697* * *
17008. A detailed statement of the data and
1708methodology used in making the estimates
1714required by this paragraph.
17186. The Department prepared an EIS in conjunction with the proposed rule
1730challenged herein. The Department has stipulated that Petitioners requested
1739that an EIS be prepared and that request was made on an ongoing and continuous
1754basis since early 1994.
1758Cost to Affected Persons
17627. The Department contracted with Florida Atlantic University (FAU) to
1772have FAU prepare the EIS for proposed Rule 62N-22.005, Florida Administrative
1783Code. Michelle Correia was primarily responsible for its development. Aided by
1794two research assistants who do not have degrees in economics, she prepared the
1807EIS on a budget of approximately $1,600. She submitted her final draft of the
1822EIS in January, 1995, and other than limited telephone contact with the
1834Department, performed no further work on the EIS. The January draft of the EIS
1848does not contain any reference to how the proposed rule would impact the demand
1862for marina facilities such as the Bonita Bay Marina, nor did the Department's
1875April 1995 EIS draft made available when the Department published its proposed
1887rule which is the subject of this proceeding.
18958. Four days before the formal hearing in this cause, on July 25, 1995,
1909the Department produced another draft of the EIS that makes only cursory
1921reference to marina facilities. This draft merely states that impacts to
1932marinas are not quantifiable and would not be further considered unless
"1943specific quantitative information is submitted." This statement was included
1952in the July 25th EIS at the direction of Scott Calleson, a Department employee
1966who is not an economist.
19719. The Department's July 25 draft of the EIS does not estimate the cost of
1986the proposed rule on marina facilities, a water-dependent industry. Further,
1996the Department did not attempt to ascertain the rule's impact on marinas. FAU's
2009attempt to do so was limited to telephone calls to two of Lee County's 24
2024marinas. One owner estimated a 50 percent loss of business and one estimated
2037losing 100 percent of his business. Neither FAU nor the Department contacted
2049Bonita Bay to try to quantify the impact Bonita Bay had been communicating to
2063the Department for over one year.
206910. Bonita Bay has made a substantial investment in its marina. It has
2082recently added more slips and is currently not operating at a profit, although
2095it projects a profit within 10 years of the marina's initial construction.
2107Bonita Bay had projected cost and revenue figures for the marina up to the year
21222002 that it had relied upon in making its investment. The ability of the
2136marina to achieve these projections and realize a profit will be substantially
2148diminished by the proposed rule which would increase the time required to reach
2161the Gulf of Mexico, restrict fishing and sightseeing in the back bay areas, and
2175place Bonita Bay at a competitive disadvantage with other marinas.
218511. To obtain permits for the construction of the marina, Bonita Bay was
2198required to restrict by deed approximately 50,000 linear feet of shoreline, from
2211the mouth of the marina along the Imperial River and South Estero Bay, to
2225prevent the construction of any future boat docks. The marina also has six
2238different manatee signs in the basin as well as manatee awareness placards,
2250informative brochures, and a waterway map. All of these costly requirements
2261help protect the manatee and raise boater awareness of manatee safety issues.
227312. Petitioner Hohnstein, the manager of the Bonita Bay Marina, will also
2285be impacted by the proposed rule. The imposition of a slow speed zone in South
2300Estero Bay would limit access to the marina and restrict both commercial and
2313recreational use of these waters. Since his employment and remuneration are
2324related to the financial health of Bonita Bay's marina, Hohnstein is a person
2337likely to be affected by the proposed rule.
234513. Petitioner Fischl has owned and operated a boat chartering business
2356out of the Bonita Bay Marina for the last eight years, spending approximately a
2370thousand hours a year on the waters of South Estero Bay. Many of the
2384sightseeing tours and fishing trips he conducts will be impossible or
2395impractical under the proposed rule due to the increase in time to reach desired
2409destinations or the impossibility of reaching these areas if his boat is
2421required to travel through South Estero Bay at slow speed. Captain Fischl
2433estimates that the proposed rule would result in a 40 to 50 percent reduction to
2448his personal income. The EIS does not address the impact on Fischl or similar
2462businesses.
246314. The EIS does not address the impact to waterfront property values in
2476Lee County. For example, waterfront property values at Bonita Bay would be
2488adversely impacted by the proposed rule as a result of the increased time
2501required to reach open water and the additional restrictions imposed on South
2513Estero Bay. Although the Department asked Michelle Correia what methodology
2523should be used to estimate property value impacts, neither FAU nor the
2535Department attempted to estimate the impact of the proposed rule on property
2547values.
2548Competition and Employment
255115. The EIS also fails to estimate the impact of the proposed rule on
2565competition and the open market for employment between those marina facilities
2576affected and those unaffected by the proposed speed zones. Different marinas
2587will be impacted by their location to the proposed speed zones. The Department
2600conducted no case study or any other analysis to determine how the proposed
2613speed zones would put one marina at a competitive advantage or disadvantage over
2626another. Bonita Bay will be at a competitive disadvantage not shared by other
2639marinas not impacted by the speed zones because of their location elsewhere in
2652Lee County.
265416. A nearby marina in Collier County with travel time constraints similar
2666to those imposed by the proposed rule was forced to charge 8 percent less for
2681slip rentals than Bonita Bay and has a lower occupancy rate. A similar impact
2695can be anticipated for Bonita Bay's fee structure and occupancy figures if the
2708proposed rule is adopted, causing a loss to Bonita Bay of $70,000 per year or
2724$186 annual income loss per slip.
2730Data and Methodology
273317. Another statutory requirement missing from the EIS is a detailed
2744statement of the data and methodology used by the Department in reaching the
2757estimates that are included within the EIS. The EIS provides little or no
2770information on how the Department derived its figures or conclusions in many
2782areas, including the impacts on marinas, boat charter businesses and waterfront
2793property values.
279518. Although the Department contends data was not available in those
2806areas, Lee County maintains and updates detailed information on Lee County's
2817economy, including detailed information on marina facilities and other marine
2827industries. This information could have been utilized by the Department in
2838developing and interpreting the data and methodology for estimating impacts to
2849this segment of the economy. The Department did not contact the office which
2862maintains this information.
286519. Rather, the Department improperly relied upon the Fishkind Study
2875conducted for a four-county area on the east coast of Florida to assume the
2889impact of the rule in Lee County. The EIS uses an $8.60 contingent value
2903derived from this study relating to speed zones in Volusia County, not in Lee
2917County. However, the $8.60 figure is based upon a survey question requesting an
2930expression of funding support, not boating enjoyment, as was represented in the
2942EIS. It is not a measure of the impact on marinas, charter businesses, or
2956waterfront property values. The EIS contains no analysis of the similarities
2967between or the difference in economies and populations of those counties and Lee
2980County, which makes the EIS' reliance on the Fishkind Study inappropriate.
2991Failure to Consider Specific Information
299620. Correspondence submitted by Bonita Bay to the Department contains
3006detailed information and concerns as to the economic impact of this proposed
3018rule on marinas and other marine dependent industries in Lee County. Bonita Bay
3031received no response to these letters and this information was not considered by
3044the Department in preparing the EIS. The Department acknowledged receipt of
3055these letters in the July 1995 version of the EIS, four days before the final
3070hearing in this cause.
307421. The EIS also fails to consider specific economic information that was
3086submitted to the Department by the Petitioners demonstrating the substantial
3096economic impact of the proposed rule on Bonita Bay's, Fischl's and Hohnstein's
3108operations. This failure to consider the information submitted substantially
3117impairs the fairness of this rulemaking proceeding.
3124INVALID EXERCISE OF DELEGATED LEGISLATIVE AUTHORITY
3130No Ascertainable Standards
313322. To establish speed zones, the Department must determine whether
3143manatees are frequently sighted in a particular area so that it can be assumed
3157that they inhabit the area on a periodic or continuous basis. Neither Section
3170370.12, Florida Statutes, nor the rules promulgated pursuant to that statute
3181contain definitions of the terms "frequent", "periodic", or "continuous."
3190Likewise, there exists no Department memorandum, position paper, or other
3200document which defines these operative terms that establish the standards for
3211establishing speed zones.
321423. While the Department's witnesses stated that the word "frequently" is
3225given its common dictionary definition, the Department is unable to state with
3237any quantitative certainty how many sightings in a particular place constitute
"3248frequent" sightings. In the Department's view, a single manatee seen in the
3260same place every month would be a frequent sighting. In the Department's
3272scheme, there is no difference between one manatee sighted monthly and one
3284hundred manatees. Thus, so long as any manatee is sighted, the Department may
3297determine frequency, assume periodic or continuous habitation, and establish
3306speed zones without limitation.
331024. In determining whether manatees are frequently sighted, the Department
3320considers aerial survey data, manatee mortality data, radio telemetry data,
3330anecdotal sightings and reports, geographic or habitat-related bathymetry,
3338boating access points, and public opinion and input. The Department may also
3350consider other information, but such information was not identified nor was it
3362explained how it was used in formulating the proposed rule. Further, some of
3375the data considered does not indicate the presence of manatee, such as boat
3388access points.
339025. The Department has no method of determining how it relates each of
3403these data sources into a finding that manatees are "frequently sighted." There
3415is no formula, matrix, ranking of importance, or any other method by which an
3429individual could determine how this information is utilized to determine
"3439frequency" or otherwise establish a speed zone.
344626. The Department, in setting speed zones, begins with the premise that
3458idle or slow speed is necessary to protect manatees. A Department witness
3470responsible for administering the rule considers any speed regulation faster
3480than slow speed to be a concession by the Department to gain the cooperation of
3495local government.
349727. Within regulated areas, the top speed zone in Lee County is 25 miles
3511per hour under the proposed rule. In other counties, however, speed zones range
3524up to 30 and 35 miles per hour. The Department has no scientific basis or
3539formula for establishing the top speeds allowed. The disparity in speeds among
3551counties is the result of political compromise.
355828. The Department's regulations for establishing speed zones, whether
3567developed under the authority of Section 370.12(2)(j) or (2)(n), Florida
3577Statutes, require that it not generally regulate areas so as to unduly interfere
3590with the rights of boaters, fishermen, and waterskiers. To accomplish this, the
3602Department is required to limit the geographic area of speed zones to only that
3616area warranted for manatee protection. Further, the Department must consider
3626the timing of the rule so that it is enforced only when necessary to protect
3641manatees. Thus, if manatees were frequently sighted in a waterbody only during
3653a particular season, then only seasonal speed zones can be established, so as
3666not to unduly interfere with the rights of boaters, fishermen, and waterskiers.
367829. The definition of "undue interference" is contained in Rule 62N-
368922.002, Florida Administrative Code. Before proposing a speed zone, the
3699Department considers the use of the area by boaters, fishermen, and waterskiers
3711to avoid "unduly interfering" with these persons. The Department conceded,
3721however, that it has no formula, policy, or any other identifiable procedure or
3734standard to explain how it factors the recreational use of the waters by these
3748persons into a determination that a rule should or should not be implemented in
3762a particular geographic area. In the case of South Estero Bay, the proposed
3775rule effectively prohibits boaters from using substantial portions of the water
3786previously accessible only at higher planing speeds due to the shallow nature of
3799those areas.
380130. There exists no statutory definition of the term "continuous" to guide
3813the Department in applying its standard for establishing speed zones. Using the
3825common understanding as to what this word means, the Department witness who
3837oversees all management aspects of manatees under the purview of the Department
3849conceded that manatees do not inhabit Estero Bay on a continuous basis.
386131. Likewise, there exists no statutory definition of the term "periodic"
3872to guide the Department. A Department witness who was involved in all aspects
3885of the rule's development relies on the dictionary definition of the term
"3897periodic" and does not necessarily interpret the term "periodic" to be the same
3910as "seasonal."
391232. That witness further testified that if manatees hypothetically were
3922present in the Orange River during the winter months, that could be described as
3936a periodic appearance, and if they appeared only every other year, that would be
3950periodic as well. In the Orange River, the Department has established periodic
3962speed zones to coincide with the manatees' use of that area during the winter
3976months.
397733. In the Department's current view, manatees seen in an area every few
3990years could justify the imposition of speed zones.
3998INTERNAL INCONSISTENCY OF THE RULE
4003Habitat Comparison
400534. As applied to Estero Bay, the Department proposes different speed
4016regulations for North and South Estero Bay based on habitat differences. Both
4028bays are very shallow, with 90 percent of North Estero Bay and over 90 percent
4043of South Estero Bay being less than one meter in depth at mean low water. The
4059remaining 10 percent of North and of South Estero Bays have water depths greater
4073than one meter. The deeper water is found, in both bays, close to tidal passes
4088or maintained channels. In both bays manatees, when seen, are found in these
4101deeper water areas.
410435. There is no significant difference in freshwater sources or quantities
4115between North and South Estero Bays nor are there any warm water sources in
4129either of these bays. Similarly, there is no appreciable difference in either
4141the amount or dispersion of seagrasses in either of the bays. The zip codes
4155surrounding both bays have a similar number and type of registered vessels, and
4168there is no appreciable difference in boat traffic. The bathymetry of each bay
4181is essentially the same, and there exists no physical characteristic of either
4193bay that would support different boat speed regulations for the protection of
4205manatees. The Department treats Estero Bay as a functional unit in collecting
4217data but divided the Bay into North and South for the purpose of establishing
4231different speed zones in its proposed rule.
4238North and South Estero Bay, Use of Manatee Data
424736. The aerial survey data relied upon by the Department consists of a 48-
4261flight study conducted in 1984 and 1985. The data indicates little difference
4273in manatee use between North and South Estero Bays and that manatees are not
4287typically sighted in all parts of either the North or South Estero Bay system.
4301This is substantiated by more recent data collected by the Department in October
43141994 through May 1995 which indicates that only 2 percent of the total manatee
4328sightings in Lee County are in North Estero Bay and only another 2 percent are
4343in South Estero Bay. The Department relied on the 10-year-old data in
4355promulgating its proposed rule and not the current data.
436437. The aerial survey data also demonstrates that the manatees that are
4376seen in Estero Bay are located in close proximity to channels of at least six
4391feet in depth from which aquatic vegetation is available. In the bay waters
4404outside these channels, which make up the vast majority of Estero Bay, manatees
4417typically are not sighted. Moreover, there have been few manatee sightings in
4429the middle or east portions of South Estero Bay.
443838. This aerial survey data is consistent with the experience of
4449Petitioners Hohnstein and Fischl. Although he is on the waters of South Estero
4462Bay on a daily basis, Fischl seldom sees manatees and the few he does see are
4478confined to specific areas with deeper water, not throughout the shallow waters
4490which comprise most of Estero Bay. Hohnstein has seen very few manatees in
4503South Estero Bay, causing his belief that additional boat speed regulation in
4515this area is unnecessary and overly restrictive.
452239. In the winter months of November, December, January and February the
4534Department's data indicates that manatees are seldom sighted in Estero Bay. In
4546fact, approximately 80 percent of all manatees sighted in Lee County are in the
4560Caloosahatchee and Orange Rivers with the remaining 20 percent spread throughout
4571the remainder of Lee County. As Estero Bay is but one bay system in Lee County,
4587it is fair to conclude from this data that the combined percentage of manatee
4601sightings for both North and South Estero Bay during the winter months is less
4615than 1.5 percent of the manatees in Lee County. These figures are confirmed by
4629studies conducted by the Department.
463440. In Estero Bay, Department data collected for a study of the Lee
4647County/Collier County border area indicates that during the 6-month period of
4658November through April, the mean number of manatee sightings in Estero Bay never
4671rose above .5 or one manatee per two surveys.
468041. Because 80 percent of all manatees are sighted in the Caloosahatchee
4692and Orange Rivers in the winter months, the Department has established seasonal
4704speed zones in this area to coincide with the high population of manatees in the
4719winter and their dispersal in the spring. Although it is undisputed that this
4732seasonal pattern likewise exists in Estero Bay, the Department has not proposed
4744seasonal speed regulation, choosing instead to regulate year-round. The Bonita
4754Bay Marina is a seasonal business with its busiest activity taking place during
4767the winter months, when very few manatees are seen in Estero Bay.
477942. There are many more manatee sightings in Lee County during the winter
4792months than there are in the summer. During the summer months much of the
4806manatee population leaves Lee County and goes either north or south before
4818returning again in the winter to warm water refuges.
482743. During the winter manatees congregate and remain close to these warm
4839water refuges. There are no warm water refugees in South Estero Bay. There is
4853a warm water refuge northeast of North Estero Bay known as the Ten-Mile Canal
4867where manatees have been sighted with frequency during the winter months.
4878Manatees travelling to warm water refuges would take a fairly direct route and
4891travel in one to two meters of water.
489944. The mortality data in Lee County relied upon by the Department has
4912been collected since approximately 1974. From January 1974 through December
49221994, or 21 years, the data indicates there have been seven watercraft-related
4934manatee mortalities in North Estero Bay and five watercraft-related manatee
4944mortalities in South Estero Bay. On average, therefore, there has been less
4956than one mortality attributed to watercraft in South Estero Bay every four
4968years. There is no obvious trend demonstrating an increase in mortality in
4980either North or South Estero Bay.
498645. The Department does not consider a single watercraft related manatee
4997mortality to be acceptable. While conceding that the elimination of all human-
5009caused mortalities is unrealistic, the Department is unable to articulate and
5020has no formula or standard to determine how many watercraft-related mortalities
5031would be acceptable for a given area or for a specific speed zone.
504446. The overall population of manatees in Lee County has increased since
50561974. Moreover, the manatee mortality data for South Estero Bay over the last
506920 years does not indicate an increasing trend generally or in boat-related
5081deaths.
508247. In the vast majority of cases the Department does not know where a
5096watercraft-related manatee mortality actually occurred. Manatees can become ill
5105or injured in one area and swim to another area before dying, and the carcass
5120may drift for several days before being discovered. The Department's data,
5131therefore, simply indicates where the carcass of the animal was recovered, not
5143the location where a watercraft struck a manatee.
515148. In developing the proposed rule the Department also relied upon data
5163collected by tracking radio tagged manatees in Lee County. The manatees were
5175tagged in the Caloosahatchee River and tracked by the Department for
5186approximately eighteen months. The data indicated that manatees stayed in the
5197Caloosahatchee River during the winter months until spring, when the majority of
5209these animals disperse down the Caloosahatchee River. Most manatees then head
5220north to the Charlotte Harbor area and beyond, up to Tampa Bay. Throughout this
5234study period, no radio-tagged manatee was located in either North or South
5246Estero Bay. The Department concedes that this study is representative of
5257overall manatee behavior in Lee County.
526349. The Department also relies on anecdotal data when establishing speed
5274zones. The Department presented no evidence that it had received more informal
5286reports of manatees in South Estero Bay than in North Estero Bay. In contrast,
5300Petitioners Hohnstein and Fischl, who have spent thousands of hours on the
5312waters of Estero Bay, have both seen as many or more manatees in North Estero
5327Bay.
532850. The Department chose to regulate North and South Estero Bay
5339differently for two primary reasons: (1) because of the presence of marked
5351channels in South Estero Bay which the Department did not believe existed in
5364North Estero Bay, and (2) in order to provide for some recreational
5376opportunities in the Estero Bay system. Neither of these reasons is recognized
5388under Section 370.12, Florida Statutes, which provides the only authority for
5399the establishment of speed zones.
5404CONCLUSIONS OF LAW
540751. The Division of Administrative Hearings has jurisdiction over the
5417parties hereto and the subject matter hereof. Sections 120.54(4) and 120.57(1),
5428Florida Statutes.
543052. Petitioners' Motion to Strike was filed on October 3, 1995. Page 22
5443of Respondent's Proposed Final Order argues that Petitioners lack standing to
5454challenge the EIS because they failed to request that an EIS be prepared for the
5469proposed rule. As correctly asserted in the Motion, the Department stipulated
5480during the final hearing that Petitioners had an ongoing and continuous request
5492that the Department prepare an EIS for the proposed rule. The Department's
5504unilateral attempt to set aside post hearing a stipulation it entered into
5516during the final hearing will not be countenanced. Further, the Department's
5527assertion is contrary to the uncontroverted facts in this case. Petitioners'
5538Motion to Strike is granted.
554353. All Petitioners and Intervenors are substantially affected by the
5553proposed rule and have standing, pursuant to the stipulation of the parties.
5565Further, Petitioners have standing to challenge the proposed rule based upon the
5577EIS.
557854. In addition to challenging the entire proposed rule as an invalid
5590exercise of delegated legislative authority, Petitioners contend that
5598Subsections (2)(d) 12 and 13, (2)(g)(1), and (2)(g)3.a-e of proposed Rule 62N-
561022.005, Florida Administrative Code, are invalid even if the entire proposed
5621rule is not. Subsection (2)(g)(1) establishes a 25 m.p.h. speed zone at all
5634times in North Estero Bay. The Petition for Administrative Determination of
5645Invalidity of Proposed Rule filed by Petitioners attacks those specific portions
5656of the proposed rule relating to South Estero Bay. Although the parties
5668presented evidence regarding North Estero Bay as it relates to Estero Bay as a
5682whole and as part of Petitioners' challenge to the proposed rule to show its
5696internal inconsistency, Petitioners did not specifically attack the speed zone
5706for North Estero Bay in their Petition. Therefore, any specific challenge to
5718Subsection (2)(g)(1) is not considered herein.
572455. The Department's argument that Petitioners cannot specifically
5732challenge Subsection (2)(d)13 is without merit. That subsection imposes a slow
5743speed restriction at all times on the Imperial River. The Department argues
5755that the subsection causes no change since boat traffic on the Imperial River is
5769currently restricted to slow speed by county ordinance. A county ordinance is
5781not the same as a State agency rule. Since Subsection (2)(d)13 would make the
5795year-round slow speed restriction on the Imperial River a State law, and since
5808Bonita Bay residential community is bordered on one side by the Imperial River
5821and the Bonita Bay Marina is on the Imperial River, Petitioners have properly
5834challenged that subsection.
583756. Petitioners have the burden of establishing by a preponderance of the
5849evidence that the challenged rule is invalid. Agrico Chemical Co., et al. v.
5862Dept. of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1979). They
5875have met their burden of proving the invalidity of Rule 62N-22.005 in its
5888entirety and of Subsections (2)(d)12 & 13 and (2)(g)3.a-e.
589757. A petitioner may seek to invalidate a rule by challenging the EIS on
5911the grounds that (A) the agency failed to adhere to the procedure for
5924preparation of the EIS provided by Section 120.54(2), Florida Statutes, or (B)
5936the agency failed to consider information submitted to it regarding specific
5947concerns about the economic impact of the rule which failure substantially
5958impaired the fairness of the agency's rulemaking. Section 120.54(2)(d), Florida
5968Statutes. Petitioners have challenged the EIS prepared for the proposed rule on
5980both grounds.
598258. In the event an agency prepares an EIS for a proposed rule, the agency
5997is obligated to provide specific information which includes:
6005(2) An estimate of the cost or the economic
6014benefit to all persons directly affected by the
6022proposed action;
6024(3) An estimate of the impact of the proposed
6033action on competition and the open market for
6041employment, if applicable;
6044* * *
6047(8) A detailed statement of the data and
6055methodology used in making the estimates
6061required by this paragraph.
6065Section 120.54(2)(c), Florida Statutes. An agency's failure to include any of
6076the above requirements is grounds for invalidating a proposed rule. E. L.
"6088Shorty" Allen; Wigwam, Inc., et al. v. Honorable Bob Martinez, et al., DOAH
6101Case No. 88-5797R (March 20, 1989) (EIS found deficient for failing to estimate
6114the cost to all persons directly affected by the rule and failing to include a
6129detailed statement of the data and methodology used in its preparation); Stuart
6141Yacht Club & Marina, Inc. v. Dept. of Natural Resources, 625 So.2d 1263 (Fla.
61554th DCA 1993) (EIS found deficient for failing to consider the economic impact
6168to a marina, failing to estimate the impact on competition and employment, and
6181failing to include a detailed statement of the data and methodology used in
6194reaching the estimates made).
619859. The Department has failed to adhere to the procedures necessary to
6210prepare an adequate EIS for proposed Rule 62N-22.005, Florida Administrative
6220Code, as required by Section 120.54(2)(c), Florida Statutes, by failing to
6231include the information required to be included by Subsections (2), (3), and
6243(8). The Department's failure substantially impaired the fairness of its
6253rulemaking proceeding.
6255Estimate of Costs to all Persons
626160. The January 1995 draft of the EIS prepared by FAU did not estimate the
6276cost of the proposed rule to Petitioner Bonita Bay's marina facilities or marina
6289facilities in Lee County generally. The Department's July 1995 EIS likewise
6300does not include a cost estimate to marina facilities, though such costs were
6313and are reasonably ascertainable. Both the Petitioners' and Lee County's
6323economic experts testified that the EIS was deficient in this area and SMC/FWF's
6336expert stated that he would have included marinas as an impacted industry and
6349analyzed the impact of the speed zones to that industry.
635961. Consistent with the plain meaning of Section 120.54(2)(c)(2), Florida
6369Statutes, the EIS must contain an estimate of the cost of a rule to all affected
6385persons. Petitioners, as owners and operators of a marina and marina-related
6396businesses, were never considered until four days prior to hearing and then the
6409Department only concluded that no cost of the rule impact could be estimated.
6422However, no attempt to estimate that impact was made.
643162. In this case, the preponderance of the evidence establishes that the
6443EIS did not consider the cost of the rule to marina facilities. It is also
6458undisputed that the EIS did not consider the impact of the rule on the value of
6474waterfront property in Lee County, though Petitioners and Lee County presented
6485evidence that the rule would significantly impact waterfront land values. As
6496was found in Stuart Yacht Club & Marina, Inc., these deficiencies invalidate the
6509EIS and substantially impact the fairness of the Department's rulemaking.
6519Competition and Employment
652263. The undisputed evidence in this cause is that the imposition of speed
6535zones would put certain marinas at a competitive advantage (or disadvantage)
6546over others, depending upon their location. In Florida Ass'n of Academic
6557Nonpublic Schools, et al. v. Dept. of Health and Rehabilitative Services, DOAH
6569Case No. 86-2272R (October 3, 1986), the Hearing Officer struck down the
6581agency's EIS for, among other things, failing to include an analysis of the
6594impact on competition and the open market for employment. In this case, as in
6608Florida Ass'n, the EIS does not address competition or employment and is
6620therefore inadequate.
6622Data and Methodology
662564. The Department has failed to include within the EIS a detailed
6637statement of the data and methodology used in reaching its conclusions. An
6649individual reading the EIS would in many instances have no indication how the
6662Department's figures were derived.
666665. In one area where the methodology is included within the EIS, it
6679references data collected in a study of a four-county area on the east coast of
6694Florida which is not applicable to show impacts in Lee County. First, the $8.60
6708contingent value derived from the study relates to speed zones not shown to have
6722any similarity with speed zones in Lee County. Second, the survey question that
6735this figure is estimated from requested an expression of funding support, not
6747boating enjoyment, as was represented in the EIS. Third, a vast difference
6759exists in economies and populations between those east coast counties and Lee
6771County. Use of this study in the EIS for Lee County is, accordingly, misleading
6785and deceptive.
678766. In E. L. "Shorty" Allen, supra, the Hearing Officer found the proposed
6800rule to be an invalid exercise of delegated legislative authority because, in
6812part, the Department failed to prepare an adequate EIS since it did not include
6826a detailed statement of the data and methodology used in making each of its
6840estimates. Likewise, in this case there is often no hint of the data and method
6855used, if any, in reaching many of the conclusions in the EIS. This omission,
6869standing alone, requires its invalidation.
6874Failure to Consider Submitted Information
687967. The Department failed to consider information submitted by the
6889Petitioners and, accordingly, substantially impaired the fairness of its
6898rulemaking. For over a year Petitioners corresponded with the Department
6908requesting that an EIS be prepared and submitting detailed concerns regarding
6919the economic impact of the proposed rule. Petitioners have satisfied the
6930requirements of Section 120.54(2)(d), Florida Statutes.
693668. In Dept. of Health and Rehabilitative Services v. Wright, etc., 439
6948So.2d 937 (Fla. 1st DCA 1983), the Court held:
6957[T]he absence or insufficiency of an economic
6964impact statement is harmless error if it is
6972established that the proposed action will
6978have no economic impact...or if it is shown
6986that the agency fully considered the asserted
6993economic factors and impact. Id. at 941.
7000In that case, in striking down the EIS the court found impacts to adult
7014congregate living facilities and their residents caused by a rule were ignored.
7026Here, similarly, impacts to marinas and related facilities were ignored.
7036Section 120.54(2), Florida Statutes, and relevant case law mandate substantial
7046compliance with all relevant EIS requirements. An EIS is not sufficient if it
7059fails to address all areas required by Section 120.54(2)(c), Florida Statutes.
7070Florida League of Cities, Inc. v. Dept. of Environmental Regulation, 603 So.2d
70821363, 1371 (Fla. 1st DCA 1992).
708869. Further, such failure with respect to Petitioners has substantially
7098impaired the fairness of the proceedings. While expert witnesses for all
7109parties agree that impacts (and quite likely substantial impacts) to marinas,
7120ancillary businesses and waterfront land values will be caused by these rules,
7132the Department has ignored those impacts.
713870. The Department's argument that Petitioners are required to perform the
7149studies necessary to show the impact on marinas, marina-related businesses, and
7160waterfront property values finds no support in the law and is not persuasive.
7173Petitioners did what is required of them by Section 120.54(2)(d), Florida
7184Statutes; they provided the Department with sufficient information to make the
7195Department aware of their specific concerns. The Department, on the other hand,
7207failed to do what is required of it by Section 120.54(2)(c) by failing to
7221estimate the cost and impact on Petitioners and by failing to disclose how that
7235estimate was formulated.
7238INVALID EXERCISE OF DELEGATED LEGISLATIVE AUTHORITY
724471. Section 120.52(8), Florida Statutes, provides as follows:
"7252Invalid exercise of delegated legislative
7257authority" means action which goes beyond
7263the powers, functions, and duties delegated
7269by the Legislature. A proposed or existing
7276rule is an invalid exercise of delegated
7283legislative authority if any one or more
7290of the following apply:
7294(a) The agency has materially failed to
7301follow the applicable rulemaking procedures
7306set forth in s. 120.54;
7311(b) The agency has exceeded its grant of
7319rulemaking authority, citation to which is
7325required by s. 120.54(7);
7329(c) The rule enlarges, modifies, or
7335contravenes the specific provisions of law
7341implemented, citation to which is required
7347by s. 120.54(7);
7350(d) The rule is vague, fails to establish
7358adequate standards for agency decisions, or
7364vests unbridled discretion in the agency; or
7371(e) The rule is arbitrary or capricious.
737872. Rule 62N-22.005 and Subsections (2)(d)12 and 13 and (2)(g)3.a-e,
7388Florida Administrative Code, exceed delegated legislative authority and enlarge,
7397modify, and contravene Section 370.12(2)(n), Florida Statutes. Section
7405370.12(2)(n) authorizes the Department to designate by rule State waters where
7416manatees are frequently sighted, and it can be assumed such waters are
7428periodically or continuously inhabited by manatees. Rules may be adopted to
7439prevent harmful collisions with motorboats and protect manatees from harassment.
744973. The preponderance of the evidence establishes that manatees do not
7460frequent waters less than one meter in depth, and more than 90 percent of North
7475and of South Estero Bay is less than one meter in depth at mean low water.
7491Substantially all water within Estero Bay, other than improved channels, that is
7503deeper than one meter at low water is located near the western edge of North and
7519South Estero Bays near passes connecting to the Gulf of Mexico. Manatees are
7532sighted in the deeper water along this western perimeter and in the Imperial
7545River. With the exception of Ten Mile Canal northeast of North Estero Bay,
7558manatees are not typically sighted in North or South Estero Bay during the
7571winter months of November through April. Manatee mortality statistics for 1974
7582to 1995 reveal no trend of increased boat-related mortalities.
759174. Yet, all of South Estero Bay except portions of two channels has been
7605designated slow speed even though manatees are only sighted with any frequency
7617at all in discreet deepwater areas along the western edge of the Bay. In
7631addition, the only-periodic habitation by manatees in the summer months has not
7643been considered, and there is no evidence to suggest boaters' rights have been
7656considered as to South Estero Bay.
766275. Further, the Department has used "recreational opportunity" and the
7672presence of marked channels as shown on navigation charts to establish different
7684speed zones between North and South Estero Bay. On the face of the statute,
7698recreation and marked channels should be no basis for differentiation, all other
7710factors being equal.
771376. Rule 62N-22.005 and Subsections (2)(d)12 and 13 and (2)(g)3.a-e,
7723Florida Administrative Code, are vague, fail to establish adequate standards for
7734agency decisions, and vest unbridled discretion in the agency. Critical terms
7745contained within Section 370.12(2)(n) such as "frequently sighted" and
"7754periodically or continuously inhabited" are not defined within the statute or
7765by the challenged rule. Rather, Department staff testified that the words have
7777their ordinary dictionary definitions.
778177. Nonetheless, testimony revealed the standard is, in essence, no
7791standard. There is no quantitative number for Lee County, North or South Estero
7804Bay, or, for that matter, the State of Florida that constitutes "frequent"
7816sighting of manatees. Similarly, "periodic" can mean "seasonal" or a variety of
7828other possibilities including once a month, on an annual basis, or once every
7841few years. Continuous habitation of manatees is defined in a similarly vague
7853way.
785478. Department staff testified that they use a number of factors in
7866establishing motorboat speed zones. The factors include such items as manatee
7877mortality data, aerial survey data, satellite telemetry, manatee sightings, scar
7887catalogs, and expert opinions. However, when asked to explain how these
7898criteria were used in determining speed zones, Department answers varied from
7909concluding that it was somewhat a political decision to testifying that it
7921varies from place to place based upon their professional judgment and
7932discretion.
793379. Critical terms have meanings that vary from location to location
7944according to Department interpretation or other factors. The ultimate
7953conclusions regarding whether manatees are frequently sighted and periodically
7962or continuously inhabit a particular area is, therefore, an exercise of
7973unbridled discretion by Department staff.
797880. The consequence of such a process is that there are no ascertainable
7991quantitative criteria, standards or analytical process which can be applied to
8002determine how and where manatee speed zones should be established. Such
8013unbridled discretion and application of a vague, standardless process requires
8023rule invalidation. Merritt v. Dept. of Business and Professional Regulation,
8033Bd. of Chiropractic, 654 So.2d 1051 (Fla. 1st DCA 1995). In Merritt, the court
8047found the proposed rule to be an invalid exercise of delegated legislative
8059authority (and arbitrary and capricious) because it failed to apply the
8070statutory standard set forth by the Legislature, thus providing no clear
8081guidance for those impacted by the rule. The court stated:
8091Rather than elaborate the statutory standard,
8097the challenged rule replaces that standard
8103with the personal judgment of the members of
8111the peer review committee. Id. at 1053.
8118* * *
8121The rule thus serves more to obfuscate the
8129statutory language than to elaborate statutory
8135criteria or standards. Id. at 1054.
8141Likewise, in this case, the rule leaves the meaning of operative terms entirely
8154within the judgment of Department staff rather than clarifying the standard for
8166establishing speed zones.
816981. The Department argues that its interpretation of the terms "frequent",
"8180periodic", and "continuous" found in Section 370.12(2)(n), Florida Statutes,
8189involves agency expertise and is, therefore, entitled to great deference. Yet,
8200the Department's witnesses testified that they have interpreted and applied
8210those words only in accordance with the common, dictionary definition of each.
8222Accordingly, no agency expertise is involved, and the Department's argument is
8233contrary to the evidence in this cause and not persuasive.
824382. Rule 62N-22.005 and Subsections (2)(d)12 and 13 and (2)(g)3.a-e,
8253Florida Administrative Code, are arbitrary and capricious. Further, the rule is
8264not reasonably related to the purpose of the enabling legislation. As explained
8276in Agrico Chemical Co., et al.,
8282A capricious action is one which is taken
8290without thought or reason and irrationally.
8296An arbitrary decision is one not supported by
8304facts or logic, or despotic. Administrative
8310discretion must be reasoned and based upon
8317competent substantial evidence. Id. at 763.
8323Competent substantial evidence of arbitrary and capricious behavior can include
8333identification of rule provisions which are internally inconsistent or simply
8343irrational. A rule that is internally inconsistent is both irrational and
8354illogical. St. Johns North Utility Corp. v. Florida Public Service Comm'n, 549
8366So.2d 1066, 1069 (Fla. 1st DCA 1989) (failure to provide a reasonable
8378explanation for inconsistent results based on similar facts violates Chapter
8388120, Florida Statutes, and the equal protection guarantees of the Florida and
8400federal constitutions).
840283. The evidence in this cause demonstrates that there are no substantial
8414differences in habitat between North and South Estero Bays. Yet, they are
8426treated radically different as to speed zones. Bathymetry is similar. Seagrass
8437distribution and density is comparable. There are no warm water refuges to
8449attract winter populations of manatees.
845484. Similarly, the evidence demonstrates there are no substantial
8463differences in the frequency of manatee sightings between North and South Estero
8475Bays. There also appears to be no difference in either numbers or seasonality
8488(periodicity) of occurrence of manatee within North and South Estero Bays, and
8500the Department's data does not even differentiate between the two. In sum, the
8513Department's own data does not demonstrate any more interference with or
8524endangerment to manatees in South Estero Bay than in North Estero Bay.
8536Accordingly, the proposed rule is internally inconsistent in its disparate
8546treatment of North Estero Bay and South Estero Bay.
855585. The Department's use of 10-year-old aerial survey data in developing
8566this proposed rule, without considering the 1994-95 data being collected by it
8578or without waiting for the conclusion of its current study and then analyzing
8591that data, is itself arbitrary and capricious. The Department's own rules
8602regulating the establishment of speed zones require it to consider "all
8613available information." Rule 62N-22.001, Florida Administrative Code.
862086. Finally, the one reason provided for establishing 25 mile per hour
8632speed zones within North Estero Bay as opposed to South Estero Bay was to
8646provide recreational opportunities within North Estero Bay. No evidence was
8656offered as to why recreational opportunities should not be provided in South
8668Estero Bay.
867087. The Department proved that its policy is to establish speed zones
8682pursuant to Section 370.12(2)(n), Florida Statutes, in accordance with the
8692standards found in Subsection (2)(j) which prohibits the Department from
8702regulating boat speeds generally "...thereby unduly interfering with the rights
8712of fishermen, boaters, and water skiers using the areas for recreational and
8724commercial purposes." However, under its proposed rule, the Department has
8734deviated from that policy by establishing a slow speed year-round requirement
8745for all of South Estero Bay despite the fact that over 90 percent of the water
8761is too shallow for manatee to use most of the time. Since the evidence reveals
8776that the Department proposes to regulate in waters not used by manatee, and
8789since the evidence reveals that manatee are sighted in the deeper areas only
8802part of the year, the proposed rule regulates excessively, both as to area and
8816as to time. Accordingly, Subsections (2)(d)12 and 13 and (2)(g)3.a-e of Rule
882862N-22.005, Florida Administrative Code, unduly interfere with the rights of
8838fishermen, boaters, and water skiers using South Estero Bay for recreational and
8850commercial purposes.
885288. The radically-different treatment of similar water bodies, the general
8862and excessive regulation of South Estero Bay, and the failure of the proposed
8875rule to provide any ascertainable standards require a determination that the
8886rule is arbitrary and capricious.
8891Based upon the foregoing Findings of Fact and Conclusions of Law, it is
8904ORDERED and CONCLUDED that the Department's proposed Rule 62N-22.005,
8913Florida Administrative Code, and Subsections (2)(d)12 and 13 and (2)(g)3.a-e of
8924that proposed rule are an invalid exercise of delegated legislative authority.
8935DONE and ORDERED this 12th day of December, 1995, at Tallahassee, Florida.
8947___________________________________
8948LINDA M. RIGOT
8951Hearing Officer
8953Division of Administrative Hearings
8957The DeSoto Building
89601230 Apalachee Parkway
8963Tallahassee, Florida 32399-1550
8966(904) 488-9675
8968Filed with the Clerk of the
8974Division of Administrative Hearings
8978this 12th day of December, 1995.
8984APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-2552RP
89931. Petitioners' proposed findings of fact numbered 1-11, 13-42, and 44-50
9004have been adopted either verbatim or in substance in this Final Order.
90162. Petitioners' proposed findings of fact numbered 12 and 43 have been
9028rejected as not constituting findings of fact but rather as constituting
9039argument of counsel, conclusions of law, or recitation of the testimony.
90503. The Department's proposed finding of fact numbered 33 has been adopted
9062either verbatim or in substance in this Final Order.
90714. The Department's proposed findings of fact numbered 3, 5, 17-19, 24,
908325, 37, 41, and 45 have been rejected as being irrelevant to the issues under
9098consideration in this cause.
91025. The Department's proposed findings of fact numbered 8-11, 15, 16, 21,
911423, 28, 40, 44, 47, and 53 have been rejected as being subordinate to the issues
9130herein.
91316. The Department's proposed findings of fact numbered 39 and 46 have been
9144rejected as not constituting findings of fact but rather as constituting
9155argument of counsel, conclusions of law, or recitation of the testimony.
91667. The Department's proposed findings of fact numbered 4 and 31 have been
9179rejected as not being understandable.
91848. The Department's proposed findings of fact numbered 1, 2, 6, 7, 12-14,
919720, 22, 26, 27, 29, 30, 32, 34-36, 38, 42, 43, 48-52, 54, and 55 have been
9214rejected as not being supported by the weight of the competent, credible
9226evidence in this cause.
92309. Save the Manatee Club and Florida Wildlife Federation's findings of
9241fact numbered 9, 18-23, and 58 have been rejected as not being supported by the
9256weight of the competent, credible evidence in this cause.
926510. Save the Manatee Club and Florida Wildlife Federation's proposed
9275findings of fact numbered 12-17 and 47-49 have been rejected as being
9287subordinate to the issues herein.
929211. Save the Manatee Club and Florida Wildlife Federation's proposed
9302findings of fact numbered 10, 11, 24-46, 50-57, and 59 have been rejected as not
9317constituting findings of fact but rather as constituting argument of counsel,
9328conclusions of law, recitation of the testimony, or a stipulation of the
9340parties.
9341COPIES FURNISHED:
9343Terry E. Lewis, Esquire
9347Kenneth W. Dodge, Esquire
9351Lewis, Longman & Walker, P.A.
9356Suite 900
93582000 Palm Beach Lakes Boulevard
9363West Palm Beach, Florida 33409
9368Jonathan Glogau, Esquire
9371Attorney General's Office
9374PL-01, The Capitol
9377Tallahassee, Florida 32399-1050
9380M. B. Adelson, Esquire
9384Department of Environmental Protection
93882600 Blair Stone Road
9392Tallahassee, Florida 32399-2400
9395David Gluckman, Esquire
9398Gluckman & Gluckman
9401541 Old Magnolia Road
9405Crawfordville, Florida 32327
9408Robert E. Goodwin, Jr., Esquire
9413500 North Maitland Avenue
9417Suite 210
9419Maitland, Florida 32751
9422Cindy L. Bartin, Esquire
9426Landers & Parsons
9429Post Office Box 271
9433Tallahassee, Florida 32302
9436Liz Cloud, Chief
9439Bureau of Administrative Code
9443The Elliott Building
9446Tallahassee, Florida 32399-0250
9449Carroll Webb, Executive Director
9453Administrative Procedures Committee
9456Holland Building, Room 120
9460Tallahassee, Florida 32399-1300
9463NOTICE OF RIGHT TO JUDICIAL REVIEW
9469A party who is adversely affected by this final order is entitled to judicial
9483review pursuant to Section 120.68. Florida Statutes. Review proceedings are
9493governed by the Florida Rules of Appellate Procedure. Such proceedings are
9504commenced by filing one copy of a notice of appeal with the Agency Clerk of the
9520Division of Administrative Hearings and a second copy, accompanied by filing
9531fees prescribed by law, with the District Court of Appeal, First District, or
9544with the District Court of Appeal in the appellate District where the party
9557resides. The notice of appeal must be filed within 30 days of rendition of the
9572order to be reviewed.
![](/images/view_pdf.png)
- Date
- Proceedings
- Date: 07/25/1996
- Proceedings: Letter to M. Lockard from R. Edmonds (re: enclosed Ck #1185 for $6.50 for copy of Final Order) filed.
- Date: 07/24/1996
- Proceedings: Blue Files are being sent to the Agency per Ann Cole (2 boxes) sent out.
-
PDF:
- Date: 12/12/1995
- Proceedings: CASE CLOSED. Final Order sent out. Hearing held 07/31/95 through 08/04/95.
- Date: 10/03/1995
- Proceedings: Petitioners` Motion to Strike filed.
- Date: 09/25/1995
- Proceedings: Respondent`s Proposed Final Order; Petitioner`s Proposed Final Order filed.
- Date: 09/25/1995
- Proceedings: Proposed Final Order of Save the Manatee Club and Florida Wildlife Federation filed.
- Date: 09/22/1995
- Proceedings: Order sent out. (case style amended)
- Date: 09/21/1995
- Proceedings: (Lee County) Notice of Withdrawal (w/exhibit A) filed.
- Date: 09/20/1995
- Proceedings: Order sent out. (Petitioner`s Motion to extend Time Granted)
- Date: 09/20/1995
- Proceedings: (Petitioners) Motion to Extend Time filed.
- Date: 08/31/1995
- Proceedings: 9 Volumes (Transcript) w/cover letter filed.
- Date: 08/14/1995
- Proceedings: (3) Subpoena Duces Tecum; (3) Affidavit of Service; (3) Invoice filed.
- Date: 08/04/1995
- Proceedings: Videotaped Deposition of Stephen J. Boutelle w/exhibits filed.
- Date: 08/02/1995
- Proceedings: Subpoena Duces Tecum; Affidavit of Service filed.
- Date: 07/31/1995
- Proceedings: CASE STATUS: Hearing Held.
- Date: 07/31/1995
- Proceedings: Subpoena Duces Tecum; Verified Return of Service filed.
- Date: 07/28/1995
- Proceedings: (Petitioners) Notice of Taking Deposition Duces Tecum filed.
- Date: 07/26/1995
- Proceedings: Order sent out. (Motion to change venue denied; Motion in limine denied)
- Date: 07/25/1995
- Proceedings: (Joint) Prehearing Stipulation for Final Hearing filed.
- Date: 07/24/1995
- Proceedings: (Intervenor) Notice of Taking Video Deposition filed.
- Date: 07/24/1995
- Proceedings: (Petitioners) Notice of Taking Video Deposition; Notice of Taking Deposition Duces Tecum filed.
- Date: 07/24/1995
- Proceedings: (Petitioners) Notice of Taking Deposition Duces Tecum; Notice of Taking Video Deposition; Notice of Change of Address; Save the Manatee Club, Florida Wildlife Federation and Florida Department of Environmental Protection`s Motion i n Limine filed.
- Date: 07/21/1995
- Proceedings: (Terry E. Lewis) Motion to Change Venue filed.
- Date: 07/17/1995
- Proceedings: (Robert E. Goodwin, Jr.) Notice of Appearance filed.
- Date: 07/12/1995
- Proceedings: Letter to Colleagues from Terry E. Lewis (cc: Hearing Officer) Re: Confirming the schedules and other matters discussed at pretrial conference filed.
- Date: 07/11/1995
- Proceedings: (Respondent) Notice of Service of Answers to Interrogatories and Request for Production filed.
- Date: 07/07/1995
- Proceedings: (Cindy L. Bartin) (2) Notice of Service of Answers to First Set of Interrogatories filed.
- Date: 06/28/1995
- Proceedings: (2) Petitioners` Notice of service of Answers to Intervenor`s First Set of Interrogatories filed.
- Date: 06/26/1995
- Proceedings: Petitioners` Notice of Service of Answers to Respondent`s First Set of Interrogatories filed.
- Date: 06/22/1995
- Proceedings: (Lee County) Notice of Service of Answers to First Set of Interrogatories filed.
- Date: 06/19/1995
- Proceedings: Save the Manatee Club and Florida Wildlife Federation's Notice of Service of First Set of Interrogatories to Petitioner, Jim Hohnstein; Save the Manatee Club and Florida Wildlife Federation's Notice of Serviceof First Set of Inter rogatories to Petitioner
- Date: 06/19/1995
- Proceedings: Order Granting Intervention sent out. (petition to Intervene Granted)
- Date: 06/14/1995
- Proceedings: Letter to Audrey E. Vance from Jonathan A. Glougau (cc: Hearing Officer) Re: Response to letter of June 7 to Ken Dodge filed.
- Date: 06/13/1995
- Proceedings: (Petitioners) Notice of Service of First Set of Interrogatories to Respondent, Florida Department of Environmental Protection filed.
- Date: 06/13/1995
- Proceedings: (Petitioners) Notice of Service of First Set of Interrogatories to Intervenor, Save the Manatee Club; Petitioners` First Request for Production of Documents to Intervenor, Save the Manatee Club; Petitioners` First Request for Production of Documents to Re
- Date: 06/13/1995
- Proceedings: (Petitioners) Notice of Service of First Set of Interrogatories to Intervenor, Ira Rakatansky; Petitioners' First Request for Production ofDocuments to Intervenor, Florida Wildlife Federation; Notice of Service of First Set of Int errogatories to Interven
- Date: 06/13/1995
- Proceedings: (Petitioners) Notice of Service of First Set of Interrogatories to Intervenor, Hibiscus Pointe at Bay Beach, LTD.; Petitioners` First Request for Production of Documents to Intervenor, Hibiscus Pointe at Bay Beach, LTD.; Petitioners` First Request for Pro
- Date: 06/12/1995
- Proceedings: (Respondent) Notice of Service of Interrogatories filed.
- Date: 06/02/1995
- Proceedings: Order Granting Intervention, Granting Continuance, and Rescheduling Final Hearing sent out. (hearing rescheduled for July-August 4, 1995; 9:30am; Tallahassee)
- Date: 06/02/1995
- Proceedings: Order of Prehearing Instructions sent out.
- Date: 06/01/1995
- Proceedings: (Cindy L. Bartin) Petition to Intervene in Support of Proposed Rule 62N-22.005, F.A.C. filed.
- Date: 06/01/1995
- Proceedings: (Kenneth W. Dodge) Re-Notice of Telephonic Hearing (Specialy Set for 1 Hour) filed.
- Date: 05/31/1995
- Proceedings: Memorandum to All Parties from Terry Lewis (RE: Hearing Officer Rigot available on 5/31/95 between 1:00pm and 4:00pm to hear Petitioner`s Motion for Continuance) filed.
- Date: 05/31/1995
- Proceedings: Petitioner`s Notice of Telephonic Hearing filed.
- Date: 05/30/1995
- Proceedings: (Respondent) Notice of Appearance filed.
- Date: 05/26/1995
- Proceedings: Save the Manatee Club and Florida Wildlife Federation`s Petition to Intervene filed.
- Date: 05/26/1995
- Proceedings: (Petitioners) Motion to Continue Final Hearing filed.
- Date: 05/26/1995
- Proceedings: (Petitioner) Petition for Leave to Intervene filed.
- Date: 05/25/1995
- Proceedings: FAX CC: (Lee County) Petition for Leave to Intervene filed.
- Date: 05/23/1995
- Proceedings: Notice of Hearing sent out. (hearing set for 6/13/95; 9:30am; Tallahassee)
- Date: 05/23/1995
- Proceedings: Order of Prehearing Instructions sent out.
- Date: 05/22/1995
- Proceedings: Order of Assignment sent out.
- Date: 05/19/1995
- Proceedings: Letter to Liz Cloud & Carroll Webb from Marguerite Lockard w/cc: Agency General Counsel sent out.
- Date: 05/18/1995
- Proceedings: Petition for Administrative Determination of Invalidity of Proposed Rule filed.
Case Information
- Judge:
- LINDA M. RIGOT
- Date Filed:
- 05/18/1995
- Date Assignment:
- 05/22/1995
- Last Docket Entry:
- 07/25/1996
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Environmental Protection
- Suffix:
- RP