City of New Smyrna Beach v. BD. OF TRUSTEES, INTERNAL IMP. TR. F.

543 So. 2d 824, 1989 WL 48101
CourtDistrict Court of Appeal of Florida
DecidedMay 11, 1989
Docket88-604
StatusPublished
Cited by4 cases

This text of 543 So. 2d 824 (City of New Smyrna Beach v. BD. OF TRUSTEES, INTERNAL IMP. TR. F.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of New Smyrna Beach v. BD. OF TRUSTEES, INTERNAL IMP. TR. F., 543 So. 2d 824, 1989 WL 48101 (Fla. Ct. App. 1989).

Opinion

543 So.2d 824 (1989)

CITY OF NEW SMYRNA BEACH, Appellant/Cross-Appellee,
v.
BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, State of Florida, Appellee/Cross-Appellant.

No. 88-604.

District Court of Appeal of Florida, Fifth District.

May 11, 1989.

*825 S. LaRue Williams of Kinsey Vincent Pyle, P.A., Daytona Beach, for appellant/cross-appellee.

Lee R. Rohe, Asst. Atty. Gen., and Margaret S. Karniewicz, Asst. Gen. Counsel, Tallahassee, for appellee/cross-appellant.

DANIEL, Judge.

This is an appeal by the City of New Smyrna Beach (City) and a cross appeal by the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (State) from a final judgment ruling on the validity and use of a beach toll imposed by the City. We affirm in part, reverse in part and remand for further proceedings.

In March 1985, the State filed suit against the City for declaratory judgment and injunctive relief. The State alleged that it was the owner and trustee of all lands within the City which lie east of the mean high water mark of the Atlantic Ocean, that the State holds in trust for the public the right to use lands within the City which lie west of the mean high water mark to the line of natural vegetation for recreation and public roads and that the City has improperly placed toll booths at most ramps providing access to the beach within the City and requires a fee for each vehicle operating on the beach.[1] The State requested a determination that the City has no right or authority to restrict access to these lands and sought a permanent injunction enjoining the City from enforcing its ordinances relating to the beach toll.

*826 The City answered the complaint and raised several affirmative defenses. The City pointed out that the State had never expended any funds or managed the beach, that the City has been charging a beach toll since 1968 without objection by the State, and that the State had failed to participate in a previous action involving the constitutionality of the beach toll ordinances. The City also counterclaimed seeking to recover the funds it had expended for maintenance of the lands for which the State now claims ownership or trusteeship.

During the pendency of this case, the Legislature enacted Chapter 85-55, Laws of Florida, popularly known as the "Growth Management Bill". Section 36 of Chapter 85-55 created the Coastal Zone Protection Act of 1985. The provision designated as section 161.58(2) prohibited vehicular traffic on the beach unless authorized by local authorities and provided for the charging of a toll and the expenditure of toll revenue for "beach maintenance." The parties stipulated to a continuance while the City passed new ordinances enacted with reference to section 161.58. The Legislature later amended this section to allow for beach toll revenue to be used for certain "beach related expenditures" in addition to "beach maintenance." The State amended its complaint to charge that the City has collected more beach toll revenue than is required for beach maintenance, that the City has used the beach toll revenue for activities in nonbeach areas, and that the City's seasonal tolls (tolls were collected only from the first Tuesday in March through Labor Day) are discriminatory. The State later filed its second and third amended complaints which essentially contained the same allegations.

At trial[2] the State called six witnesses, all City employees. The Assistant Planner for the City testified that according to 1980 statistics, the population of the City in the area lying west of the Indian River was 7,348 and the population east of the river was 8,798, of which thirty percent were tourists. The Supervisor of the Sanitation Division testified that it takes a three-man crew three to four hours a day to clean the beach in the off-season and a full day in the beach toll season. The Public Works Director testified that there were five full-time and four temporary employees employed during the 1985 beach season and that the employees who worked on the beach also worked elsewhere in the City but that their time cards reflect where the work was performed.

A City patrolman testified that the City has four all terrain vehicles for patrolling the soft sand which are not used for routine patrol. The patrolman admitted, however, that there had been occasions when the all terrain vehicles were taken off the soft sand for other duties such as traffic control. The patrolman testified further that the beachside areas are divided into zones with the "sand" zones referring to the sandy beach and the "beach" zones referring to the hardtop roads east of the Indian River and up to the sand. The officers designated their work time as either "sand" or "beach" but they did not specify on their time entries the exact time they worked. Another police officer testified to a tremendous increase in weekend traffic and police calls during the toll season.

The police records custodian testified that police officers' pay was charged to various City funds based on information from their individual time cards. The custodian could not isolate all the hours spent on beach law enforcement and beach related traffic management because of the officers' varying degrees of diligence in filling out their time cards but felt that the records were fairly accurate. She noted, however, that all patrols listed as either "sand" patrols or "beach" patrols were charged to the beach toll funds.

The City's Finance Director testified that the beach toll season ran from the first Tuesday in March through Labor Day, that the City charged $1.00 per vehicle on weekdays *827 and $2.00 per vehicle on weekends, that the City charged an even dollar amount to avoid making change, and that the City charged $2.00 on the weekends because the weekends were busier. The Finance Director acknowledged that section 161.58 had been amended in 1986 but admitted that the City made no adjustments in accounting after the law changed and used the same accounting methods to allocate expenses to the beach toll fund.

The Finance Director further testified that some expenses, such as the salaries for toll collectors, were directly charged to the beach toll fund while other expenses, such as overhead, were charged to the beach toll fund on an allocation basis. For example, the City allocated beach ramp toll salaries for 1985 as direct charges to the beach toll fund. The City also allocated 14.57 percent of the public safety budget to the fund. The 14.57 percent was derived by dividing the beach ramp toll salaries by the adjusted public safety (police department) salaries. The Finance Director admitted that there were no time logs of patrol vehicles on the sand or on the beachside and that beach toll money was being used to deliver services to the beachside rather than to the sandy beach itself. The Finance Director also stated that some officers working on beach traffic would not show that time on their time cards and that it would be an undue burden on the officers to require that they keep minute by minute time records.

The City's auditor testified that the beach toll fund was established in 1984 and that it is a special revenue fund, that is, its expenditures and revenue are earmarked for specific purposes. In 1985, the City spent $964,598 for beach related expenses with $619,000 coming from the beach toll fund. In 1986, the City spent a total of $1,096,273 for beach related expenses but only $606,270 came from the fund.[3]

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Bluebook (online)
543 So. 2d 824, 1989 WL 48101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-smyrna-beach-v-bd-of-trustees-internal-imp-tr-f-fladistctapp-1989.