09-006150RE Kissimmee River Valley Sportsman Association, Inc. vs. South Florida Water Management District Status: Closed DOAH Final Order on Wednesday, November 25, 2009.

Summary: The Petitioner's challenge to an alleged existing rule, a Resolution entered by the District authorizing the Florida Fish and Wildlife Conservation Commission to initiate rulemaking, was dismissed because the Resolution was not an existing rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KISSIMMEE RIVER VALLEY )

SPORTSMAN ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 09-6150RE

)

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, )

)

)

Respondent. )

)

FINAL ORDER

On November 24, 2009, a telephone hearing was held to

consider a motion to dismiss Petitioner's Petition for Emergency

Administrative Hearing (Petition). On November 23, 2009,

Petitioner filed a response opposing the motion. After hearing

argument of counsel, the motion to dismiss is granted and the

hearing scheduled for December 7-8, 2009, is cancelled.

On or about November 6, 2009, Petitioner filed the Petition

with the Division of Administrative Hearings. The Petition was

filed pursuant to Sections 120.56(3) and 120.57(1), Florida

Statutes, as a challenge to an alleged existing rule.

Petitioner alleges in part that Respondent's Resolution No.

2008-1212 (Resolution), adopted on December 2, 2008, is an

existing rule to the extent the Resolution restricts access to

Johnson Island as more particularly described in Exhibit C to

the Petition, which purports to be a map titled "Johnson Island

Airboat Use," designating a proposed airboating area.

Petitioner claims that the Resolution contravenes Section

373.1391(1)(b), Florida Statutes, 1 / and Florida Administrative

Code Rule 62-402.070, to the extent access is restricted and

alleged impermissible and potentially dangerous restrictions are

being placed on the use of Johnson Island.

In opposing the Petition, Respondent suggests that the

"Resolution" is not a rule or order, but merely an executive

decision from the District in its role as a land owner

requesting the Florida Fish and Wildlife Conservation Commission

(Commission) to initiate rulemaking to establish certain rules

pertaining to hunting on District lands. Respondent's motion at

2 (citation omitted). (The Commission adopted a rule in 2009

and, in part, provided general regulations pertaining to the

Kissimmee Chain of Lakes Area as follows: "6. The use of

airboats is prohibited in those areas posted as closed to

airboat use." Fla. Admin. Code R. 68A-15.006(4)(c)6. Counsel

agreed that Johnson Island is within the Kissimmee Chain of

Lakes Area.)

In ruling on a motion to dismiss, the factual allegations

of the Petition, including exhibits attached to and incorporated

in the Petition, must be accepted as true and any factual

matters outside the Petition and exhibits may not be considered.

St. Francis Parkside Lodge of Tampa Bay v. Dep't of Health &

Rehabilitative Servs. , 486 So. 2d 32, 33 (Fla 1st DCA 1986);

Harry Pepper & Assocs. Inc. v. Lasseter , 247 So. 2d 736, 737

(Fla. 3d DCA 1971).

A challenge to an existing rule is limited to a facial

challenge to the validity of a rule, whereas the remedy for an

erroneous application of a rule is a proceeding pursuant to

Section 120.57, Florida Statutes. See Beverly Health &

Rehabilitative Servs., Inc. v. Agency for Health Care Admin. ,

708 So. 2d 616 (Fla. 1st DCA 1998); Hasper v. Dep't of Admin. ,

459 So. 2d 398, 400 (Fla. 1st DCA 1994); Fairfield Communities

v. Fla. Land and Water Adjudicatory Comm'n , 522 So. 2d 1012

(Fla. 1st DCA 1988).

On its face, the Resolution authorizes the Florida Fish and

Wildlife Commission (Commission) to establish the Kissimmee

Chain of Lakes as a managed area in accordance with Florida

Administrative Code Rule 68A-25.042 and certain terms and

conditions set forth in paragraphs 1 through 8 of the

Resolution, including paragraph 7, which provides: "Allow

seasonal airboat access into the southern marsh area of Johnson

Island to facilitate hunting access. This is proposed as a one

year trial to be evaluated for compliance."

The Resolution is not a rule. The Resolution, on its face,

does not implement, interpret, or prescribe law or policy. See

§ 120.52(16), Fla. Stat. Rather, it has every appearance of

being executive in nature authorizing the Commission to initiate

rulemaking, subject to terms and conditions. See generally Lee

County v. South Fla. Water Mgmt. Dist. , 766 So. 2d 1103 (Fla. 2d

DCA 2000).

It appears that Petitioner is dissatisfied with action

taken by Respondent's imposing restrictions on airboat access on

Johnson Island. To the extent Petitioner's substantial

interests are affected by action taken by Respondent regarding,

for example, the accessibility on Johnson Island, then any

administrative relief must be requested pursuant to Sections

120.569(1) and 120.57, Florida Statutes. See Hasper v. Dep't of

Admin. , 459 So. 2d at 400. 2 /

DONE AND ORDERED this 25th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of November, 2009.

ENDNOTES

1 / Subsection 373.1391(1)(b) provides in part that "[w]henever

practicable, such lands shall be open to the general public for

recreational uses."

2 / In a challenge to an existing rule, "[t]he administrative law

judge may declare all or part of a rule invalid. The rule or

part thereof declared invalid shall become void when the time

for filing an appeal expires." § 120.56(3)(b), Fla. Stat.

However, the ALJ does not have authority to grant injunctive

relief. See generally Biltmore Constr. Co. v. Fla. Dep't of

Gen. Servs. , 363 So. 2d 851, 854 (Fla. 1st DCA 1978);

§ 26.012(2)(c) and (3), Fla. Stat. See also Greenberg v. Fla.

State Bd. of Dentistry , 297 So. 2d 628 (Fla. 1st DCA

1974)("Administrative bodies have no common law powers. They

are creatures of the Legislature and what powers they have are

limited to the statutes that create them.")(citations omitted.).

COPIES FURNISHED :

Robert Joseph Stanz, Esquire

Robert J. Stanz, P.A.

5121 South Lakeland Drive, Suite 4

Lakeland, Florida 33813

Catherine M. Linton, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

Carol Ann Wehle, Executive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with the District Court of

Appeal in the appellate district where the party resides. The

Notice of Appeal must be filed within 30 days of rendition of

the order to be reviewed.