Item 3AAGENDA ITEM # 3A
JUNE 23, 2008
June 16, 2008
MEMORANDUM
TO: The Honorable Mayor
and Members of the City Commission
FROM: Jim Hanso
---~itylVf"anager
SUBJECT: Follow-up eport
Establishment of an area for Freestyle or Mountain/Off Road Bicycling; At the last city
commission meeting, a young man made a request to be allowed to use his bicycle in the Rotary
Skate Park or, if that were not allowed, to be provided another place in Atlantic Beach for
freestyle or off road bicycling. A principle consideration in deciding to build a skate pazk in
Atlantic Beach several yeazs ago was a 1999 State law that limited the liability of cities and
counties that provided skate parks for public use as long as they followed certain procedures.
Our skate pazk was designed by professional skatepazk designers and funded with public and
private funds. Since its opening, the park has exceeded expectations in many regards. There
have continued to be many users at almost all times when the skate pazk is open. While there
have been numerous scrapes and a few broken bones, there have been no major long term
injuries or claims made against the city. This may be partially the result of staff putting a lot of
effort into enforcing the rules including requiring people to wear helmets and having signed
waivers for anyone under 17.
The city can create a pazk for "mountain or off road bicycling" and enjoy the same legal
protections as outlined in the State statute. In 2006, a section was added to expand the statute to
include "mountain and off road" bicycling. See the attached memo from Alan Jensen dated June
10~` for more information on the State law. Our present skate park was designed with a
prohibition of bikes in mind because there had been several stories about bicycle-related deaths
that had occurred at other skate parks. If bicyclists were allowed to use the skate park, the city
may incur substantial liability because it was not designed for that use. It could also create a
conflict between bicyclists versus skateboazders. It is possible to build a bicycle pazk in another
location. Several questions quickly come to mind; where to build it, how to fund the
construction, and how much manpower would it take for the city to enforce similaz rules at this
new park location?
It appeazs in Atlantic Beach that there are far fewer people interested in freestyle or mountain
biking than there aze skateboarders and the construction of a new public park may not be
possible in this time of state-wide budget cutbacks.
Use of the Reader Board in front of the Police Building to Advertise Events; A question was
asked at the last commission meeting about whether or not the city should allow the use of the
reader board in front of the police building to advertise various events. The staffs policy for use
of this reader board for many years has been to allow advertising of the only city-sponsored
AGENDA ITEM # 3A
JiJNE 23, 2008
events that occur on this site. This is consistent with the city's sign code that applies to private
businesses that prohibits off premises advertising. If a private business cannot put up a billboard
for events or businesses at other locations, why should the city be allowed to do it? The city has
received numerous requests through the years to advertise both public and private off premises
events on this reader board and has received requests from the Cultural Arts and Recreation
Advisory Committee to establish additional reader boards at other locations in the city. When
asked, the policy has consistently been held allowing only notice ofcity-sponsored events on the
Russell Park/ City Hall site. If the City Commission would like to establish an alternative policy
for use of this reader board, it certainly can do so. One additional consideration would be the
manpower required to change the lettering on the City Hall sign and possibly others in the future
if the use of off premise advertising were allowed.
Jun 10 08 11:03a Hlan Jensen 904-246-9960
ALAN C. JENSEN
Attorney at Law
9351Vorth Third Street
Post Office Box 50457
Jacksonville Beach, Florida 32240-0457
Telephone (904) 246-2500
DATE:
TO:
COMPANY:
FAX NUMBER:
NUMBER OF PAGES:
FROM:
CLIENT/MATTER NO.:
AGENDA ITEM # 3A
JUNE 23, 2008
Facsimile (904} 246-9960
E-Mail: Alan@AJeasenLaw.com
FAX MEMORANDUM
June 10, 2008 Time: ~~-;JO /h-,~-
James R. Hanson, City Manager
City of Atlantic Beach
{904} 247-5805
4 (including cover sheet}
ALAN C. JENSEN, ESQ.
Oceanside Rotary Skate Pa
MESSAGE
Section 316.0085, Florida Statutes, as originally passed by the State Legislature in 1999 addresses
skate boarding, inline skating, and freestyle bicycling on property owned or leased by the City.
Amendments to the statute were passed in 2004, which were mostly nonsubstantive changes, and
then the statute was again amended in 2006, including references to "mountain and off-road"
bicycling. A copy of the most recent statute is faxed herewith.
The City could establish an area for freestyle or mountain and off-road bicycling, but I believe and
agree with you that it would be extremely dangerous to allow that in the existing skate park. Any
such area for the bic}°cling would have to be a separately designated area, and again follow all of the
requirements of §316.0085.
I am providing this informarion to you in response to the young gentleman's request at the
Commission meeting last night. If you need any further information, please let me know.
Cc: Donna Bartle, City Clerk {via fax; w/enc)
The information contained in this facsimiie message is attorney privileged and confidential information intended only for the
use of the indi.~dual or entity named above. If the reader of this message is not the intended recipient, or the employee or
agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying
of this communication is strictly prohibited. if you have received this communication in error, please immediately notify us
by telephone and return the original message to us at the above address via U.S. Postal Service. Than[c you.
Jun 10 08 11:04a Rlan Jensen
W'estl.~aw
West's F.S.A. § 316.0085
C
904-246-9960
AGENDA ITEM # 3A
JiJNE 23, 2008
Effective: October 1, 2006
Page 1
West's Florida Statutes Annotated Currentness
Title XXIi[. Motor Vehicles (Chapters 316-325}
~ Chapter 316. State Uniform Traffic Control (Refs & Annos)
~ 316.0085. Skateboarding; inline skating; freestyle or mountain and off-road bicycling; paintball;
definitions; liability
(I) The purpose of this section is to encourage govemmental owners or lessees of property to make land avail-
able to the public for skateboarding, inline skating, paintball, and freestyle or mountain and off-road bicycling.
It is recognized that governmental owners or lessees of property have failed to make property available for such
activities because of the exposure to liability from lawsuits and the prohibitive cost of insurance, if insurance
can be obtained for such activities. It is also recognized that risks and dangers are inherent in these activities,
which risks and dangers should be assumed by those participating in such activities.
(2) As used in this section, the term:
(a) "Governmental entity'' means:
1. The United States, the State of Florida, any county or municipality, or any deparGnent, agency, or other in-
strumentality thereof.
2. Any school board, special district, authority, or other entity exercising governmental authority.
(b) "Inherent risk" means those dangers or conditions that are characteristic of, intrinsic to, or an integral part of
skateboarding, inline skating, paintball, and freestyle or mountain and off-mad bicycling.
(3) This section does not grant authority or permission for a person to engage in skateboarding, inline skating,
paintball, or freestyle or mountain and off-road bicycling on property owned or controlled by a govemmental
entity unless such governmental entity has specifically designated such area for skateboarding, inline skating,
paintball, or freestyle or mountain and vff--road bicycling. Each governmental entity shall post a rule in each
specifically designated area that identifies all authorized activities and indicates that a child under 17 years of
age may not engage in any of those aCtivrti CS anti! the governmental entity has obtained ~,vritt<;n :.orsent, in a
form acceptable to the governmental entity, from the child's parents or legal guardians.
(~j A govemmentai entity or public employee is not liable to any person who voluntarily participates in skate-
.. --- c.~, r ~~.<t;:,~, pa=rrt~a'I, C" teestyle ;`i' Essvilntarrr and CSf~-road uiCy%IrRb f`z}r ary dc~iri':a's'C yr rn3u^~' t^v
pioperiy yr Nersu~is ivhic;h arises out of a person's participation in such activity, and vvhich takes place in an area
designated far such activity.
(5) This section flues riot liirrit tial~iiity tiist would utl~er~+ise exist fur any of Clue foilowirig.
(a) Tlu failurt~ of till: govi;~r~ri~i:nial culity va puuiic uu~luy~:u iu gu~e~~i against ur w•aru of a Clillial:rVUS i;VRCitiiVi7
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Jun 10 08 12:57p Rlan Jensen 904-246-9960 AGENDA ITEM#3A
JUNE 23, 2008
Page 2
West's F.S.A. § 316.0085
of which a participant does not and cannot reasonably be expected to have notice.
(b) An act of gross negligence by the governmental entity or public employee that is the proximate cause of the
injury.
{c) The failure of a governmental entity that provides a designated area for skateboarding, inline skating, paint-
ball, or freestyle or mountain and off=road bicycling to obtain the ~rritten consent, in a form acceptable to the
governmental entity, from the parents or legal guardians of any child under l7 years of age before authorizing
such child to participate in skateboarding, inline skating, paintball, or freestyle or mountain and off-road bicyc-
ling in such designated area, unless that chiId's participation is in violation of posted rules governing the author-
ized use of the designated area, except that a parent or legal guardian must demonstrate that written consent to
engage in mountain or off-road bicycling in a designated area was provided to the governmental entity before
entering the designated area.
Nothing in this subsection creates a duty of care or basis of liability for death, personal injury, or damage to per-
sonal property. Nothing in this section shall be deemed to be a waiver of sovereign immunity under any circum-
stances.
(6) Nothing in this section shall limit the liability of an independent concessionaire; or any person or organiza-
tion other than a governmental entity or public employee, whether or not the person or organization has a con-
tractual relationship with a governmental entity to use the public property, for injuries or damages suffered in
any case as a result of the operation of skateboards, inline skates, paintball equipment, or freestyle or mountain
and off-road bicycles on public property by the concessionaire, person, or organization.
(7)(a) Any person who participates in or assists in skateboarding, inline skating, paintball, or freest}•le or moun-
tain and off-road bicycling assumes the known and unknown inherent risks in these activities irrespective of age,
and is legally responsible for all damages, injury, or death to himself or herself or other persons or property
which result from these activities. Any person who observes skateboarding, inline skating, paintball, or freestyle
or mountain or off-road bicycling assumes the knoHm and unknown inherent risks in these activities irrespective
of age, and is legally responsible for all damages, injury, or death to himself or herself which result from these
activities. A governmental entity that sponsors, allows, or permits skateboarding, inline skating, paintball, or
freestyle or mountain or off-road bicycling on its properq~ is not required to eliminate, alter, or control the inher-
ent risks in these activities.
(b) While engaged in skateboarding, inline skating, paintball, or freestyle or mountain or off-road bicycling, ir-
respective ofwhere such activities occw, a participant is responsible for doing al! of the following:
1. Acting within the limits of his or her ability and the purpose and design of the equipment used.
2. Maintaining control of his or her person and the equipment used.
3. Refraining from acting in any manner which may cause or contribute to death or injury of himself or herself,
or other persons.
Failure to comply with the requirements of this paragraph shall constitute negligence.
(8) The fact that a governmental entity carries insurance which covers any act described in this section shall not
constitute a waiver of the protections set forth in this section, regardless of the existence or limits of such cover-
®2008 T'homson/West. No Claim to Orig. U.S. Govt. Works.
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Jun 10 08 11:04a Hlan Jensen 904-246-9960 pC,ENpAITEM#3A
.TUNE 23, 2008
West's F.S.A. § 316.0085 Page 3
age.
CREDIT(S)
Added by Laws 1999, c. 99-I33, § 1, eff. April 20, 1999. Amended by Laws 2004, c. 2004-288, § 1, eff. July I,
2004; Laws 2006, c. 2006-290, § 7, eff. Oct. 1, 2006.
HISTORICAL AND STATUTORY NOTES
Amendment Notes:
Laws 2004, c. 2004-288, § 1, in the section heading, inserted "paintball;" following "bicycling;"; in subset. (3),
substituted "paintball, or" for "and" following "inline skating; ' and added the second sentence related to the
posting of rules and required written consent; in subset. (5xc), deleted "hours of preceding "authorized"; in
subset. (6), inserted "paintbail equipment," following "inline skates,' ; and inserted "paintball," following
"skating,"; and made nonsubstantive punctuation and language changes throughout.
Laws 2006, c. 2006-290, § 7, inserted references to mountain and off-road bicycling throughout; and in subset.
(5)(c), added ", except that a parent or legal guardian must demonstrate that written consent to engage in moun-
tain or off-road bicycling in a designated area was provided to the governmental entity before entering the desig-
nated area" at the end.
LAW REVIEW AND JOURNAL COMMENTARIES
Skating on thin concrete: The Florida legislature's response to skateboarders and skaters. Joseph G. Janet, 76
F1a.B.J. 74 (Nov. 2002).
LIBRARY REFERENCES
Automobiles ~ 252.
Municipal Corporations ~ 764(2), 851.
Westtaw Topic Nos. 268, 48A.
C.J.S. Motor Vehicles §§ 431 to 433, 435, 440 to 441, 466, 486.
C.J.S. Municipal Corporations §§ 7i5, 806, 810 to 811.
RESEARCH REFERENCES
Encyclopedias
Other Recreational Activities, FL Jur. 2d Government Tort Liability § 54.5.
West's F. S. A. § 316.0088, FL ST § 316.0085
Current with chapters in effect from the 2008 Second Regular Session of the Twentieth Legislature through May
21, 2008.
(C) 2008 ThomsonlWest
END OF DOCUMENT
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