ATV rider in court: Did he win or lose?

Posted 9/18/19

OKEECHOBEE — A Prairie landowner recently went to court after being issued a citation for riding an ATV on the Prairie, and while he raised many arguments that were carefully considered by Judge …

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ATV rider in court: Did he win or lose?


OKEECHOBEE — A Prairie landowner recently went to court after being issued a citation for riding an ATV on the Prairie, and while he raised many arguments that were carefully considered by Judge Bill Wallace, in the end, he was found guilty of operating an ATV on a public road or street. The judge based his decision on the following questions or analysis:

  1. On Dec. 29, 2018, did the Okeechobee County Sheriff’s Office have the authority to enforce traffic laws at the location where the citation was issued?
    The answer to this question was based upon traffic enforcement laws in states, counties and municipalities, and in each of these, he explained, was a common language, “wherever the public has the right to travel by motor vehicle.” The court found at the time and location of the citation being issued, the defendant was traveling on a road the public would believe they would have a right to travel on, which would provide the Okeechobee County Sheriff’s Office (OCSO) the authority to enforce traffic laws.
  2. Defendant Malinowski argued he had permission from the Coquina Water Control District (CWCD) to operate his all-terrain vehicle during the time and location the citation was issued, and that CWCD denies the OCSO the authority to issue the citation involved.

Based on an opinion provided by the office of the attorney general to CWCD in 2003 and on Roach vs. Loxahatchee Groves Water Control District, the court determined the argument of defendant Malinowski being granted authority by CWCD was without merit and was rejected.

  1. The final issue was whether the all-terrain vehicle the defendant was operating fell within the definition of F.S.317.0003.

That statute provides for both ATVs and ROVs. The arresting officer stipulated the vehicle was not an ATV; however, the statute provides several different vehicles for which a citation can be issued.

In summation, the court found that at the time and location, the defendant, Kent Malinowski, operated a vehicle which was improperly on a road where the OCSO had jurisdiction to enforce traffic laws. A fine of $250 was assessed.

According to Kent Malinowski, this case was never about ATVs for him, it was about his private property rights as a landowner on the Prairie. “So, we are playing chess here, and the sheriff is playing checkers,” he said. “In this case, it’s checkmate. We lose the pawn, but we take the king. What I mean by that is, in this court case, the game goes to the landowners, and here’s why. Before I chose to fight this ticket, I realized the judge was gonna hand the landowners a win regardless of which way his verdict would go down. With the way he wrote his verdict, he handed landowners two victories.”

Mr. Malinowski believes that by ruling the private driveways in the Prairie are public, the county is now obligated to pay for the maintenance of the driveways, which some call roads. He said that ruling obligates the county to pay for the maintenance because there is a law in the state of Florida. “It’s similar to when you adopt a child. You are obligated to pay for the care and upbringing of the child regardless of the birth parent.” He went on to say, the same thing applies under Florida law when a county declares private rights of way as public. It shifts the financial burden from Coquina and the other landowners who pay for the maintenance of the rights of way and the easements in Coquina to the County of Okeechobee. The maintenance budget for the Prairie is about a million dollars a year. “The sheriff’s pursuit of this crazy campaign to end ATV riding is going to cost the county about a million bucks,” he said.

He said the county has also obligated itself to place traffic signs throughout all 300 miles of roadway “that they just adopted,” and he went on to add, the ruling will help the landowners to get mail delivery, trash pickup and all other benefits offered to people living on public roads. In the past, these benefits were denied to them based on the assumption their driveways/roads were private. Mr. Malinowski cited the St. Johns case in which he said the issue has gone to the Florida Supreme Court, and the court ruled that a county has continuous duty to maintain roads when it lays claim to the rights of ways and easements for public use.

Victory number two, he explained, pertains to the land values of the properties in the Prairie. “Since the sheriff’s campaign, land values have plummeted,” he said, “and what this ruling does is it gives the landowners the opportunity to recover the decrease of their land value loss.” He is basing this on The Private Property Rights Protection Act of Florida, which he explains protects landowners from any government action that degrades their property values or limits their private property rights. “So the sheriff just lit the fuse on a damage recovery claim from every landowner on the Prairie,” he said.

Now they wait for a circuit court to rule on the validity of the sheriff’s claim that they are public vs. private. If they remain public, then by law, the county has to pay for the maintenance costs of these 300 miles of private driveways, he said.

Okeechobee County Attorney John Cassels disagrees with Mr. Malinowski’s interpretation of the judge’s ruling.

“The county has always taken the position that these are private roads for which the county has not accepted maintenance, and I don’t see anything in the judge’s order which changes that because this is dealing with the sheriff’s discharge of his constitutional duty as he sees fit to do,” said Mr. Cassels. He went on to explain there are roads all over the state that are privately owned but are open to the public — planned developments, shopping centers, etc. Merely being open to the public does not mean they are county maintained.

He also explained the sheriff is an independent constitutional officer, and he discharges his duties according to the Florida Constitution and the state statute. The county does not have the authority to direct him to patrol or not patrol. No part of the county should be lawless, he added. Mr. Cassels said he thinks all parts of the county are in need of police protection and enforcement. He does not see this traffic citation as a turning point one way or the other in the Viking.