89-006100RU Robert Rackleff; Friends Of Friends Of Lloyd, Inc.; Council Of Neighborhood Association Of Tallahassee/Leon County, Inc. (Cona); And The Thomasville Road Association vs. Department Of Community Affairs Status: Closed DOAH Final Order on Thursday, January 4, 1990.

Summary: Agency interpretted that "storage facility" did not include pipeline in calculation. Development of Regional Impact threshold not invalid as unpromulgated rule; standing under Chapter 380 irrelevant in rule challenge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT RACKLEFF; FRIENDS OF )

LLOYD, INC.; COUNCIL OF )

NEIGHBORHOOD ASSOCIATION OF )

TALLAHASSEE/LEON COUNTY, INC. )

(CONA); and THE THOMASVILLE )

ROAD ASSOCIATION, )

)

Petitioners, )

)

vs. ) CASE NO. 89-6100RU

)

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondent, )

)

and )

)

COLONIAL PIPELINE COMPANY and )

TEXACO TRADING AND )

TRANSPORTATION, INC., )

)

Intervenors. )

_________________________________)

FINAL ORDER

Pursuant to notice, the above matter was heard before the Division of

Administrative Hearings by its duly designated Hearing Officer, J. Stephen

Menton, on December 4, 1989, in Tallahassee, Florida.

APPEARANCES

FOR PETITIONERS: Edward S. Stafman, Esquire

317 East Park Avenue

Tallahassee, Florida 32301

FOR RESPONDENTS: Anne Terry, Attorney

David L. Jordan, Sr. Attorney

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

FOR INTERVENOR

COLONIAL PIPELINE

COMPANY: Wade L. Hopping, Esquire

Richard S. Brightman, Esquire

Hopping Boyd Green & Sams

Post Office Box 6526

Tallahassee, Florida 32314

FOR INTERVENOR Gary Ketchum, Esquire

TEXACO TRADING Post Office Box 478

AND Monticell, Florida 32344

TRANSPORTATION

INC.

and

Guyte P. McCord, III, Esquire

Macfarlane, Ferguson, Allison

& Kelly

215 South Monroe Street

Suite 804

Tallahassee, Florida 32302

PRELIMINARY STATEMENT

On November 6, 1989, Petitioners filed a Petition for Administrative

Determination of Invalidity of an Unpromulgated Rule pursuant to Section 120.56,

Florida Statutes ("F.S.") and Chapter 221-6, Florida Administrative Code

("F.A.C."). The Petitioners challenge Respondent's interpretation of Rule 28-

24.014, F.A.C., contending that the interpretation is an invalid rule because it

has not been adopted as a rule in accordance with the Administrative Procedures

Act and because it constitutes an invalid exercise of delegated legislative

authority.

This matter was assigned to the undersigned hearing officer on November 7,

1989 and by Notice of Hearing dated November 8, 1989 was set for final hearing

on December 4, 1989 in Tallahassee, Florida. On November 27, 1989, Respondent

filed a Motion to Dismiss the Petition. A telephone conference hearing and

scheduling conference was held on November 28, 1989 at which time it was decided

that the Motion would be heard at the Final Hearing and addressed as part of the

Conclusions of Law in this Final Order.

At the commencement of the final hearing, a written Motion to Intervene was

presented to the hearing officer by Colonial Pipeline Company ("Colonial").

After argument, the motion was granted on the condition that Colonial's

participation as a party not delay the final hearing. An oral Motion to

Intervene was then made by Texaco Trading and Transportation, Inc. ("Texaco").

While ruling on Texaco's Motion to Intervene was withheld pending submittal of a

written motion, Texaco was allowed to participate in the Final Hearing under the

same conditions as Colonial. Texaco's written Motion to Intervene was filed on

the day after the Final Hearing (December 5, 1989) and that Motion is hereby

granted.

The Petitioner and Respondent filed a Prehearing Stipulation on December 1,

1989. The Intervenors were not parties to this proceeding at the time the

Stipulation was prepared. At the hearing, Colonial pointed out certain factual

clarifications that were necessary in paragraphs (e)(6) and (e)(7) of the

Stipulation and the parties orally agreed to those modifications. In addition,

Respondent withdrew its challenge to Petitioner's standing under Section 120.56,

Florida Statutes. However, Respondent did not stipulate to standing under

Chapter 380.

At the hearing, Petitioners called one witness, Mr. Tom Beck, Chief, Bureau

of State Planning, Department of community Affairs. Mr. Beck was qualified as

an expert on the Development of Regional Impact ("DRI") process. By agreement

of the parties, three joint exhibits were admitted into evidence. In addition,

Petitioner offered eight exhibits, all of which were admitted except number six,

which was deemed irrelevant. Petitioner's exhibit 8 was admitted for standing

purposes only, and a ruling on a relevancy objection to Petitioner's Exhibit 5

was overruled. Respondent called no witnesses and submitted no exhibits other

than the three joint exhibits. Likewise, the Intervenors cross-examined

Petitioner's witness, but presented no witnesses and submitted no exhibits of

their own.

On December 18, 1989, Colonial filed a Motion to Strike certain portions of

Petitioner's Proposed Final Order. That Motion is hereby denied. However, as

set forth in paragraph 5 of the Findings of Fact in this Final Order, the

allegations in the Petition regarding the environmental hazards of the proposed

tank farm and pipeline were admitted for standing purposes only. No factual

evidence was presented regarding those hazards and no Findings of Fact are made

with respect thereto.

No transcript of the hearing was ordered. Each of the parties timely filed

Proposed Findings of Fact and Conclusions of Law (except Texaco which adopted

the proposal submitted by Colonial.) Those proposals have been reviewed and

considered in the preparation of this Final Order. A ruling on each of the

parties' Proposed Findings of Fact is included in the Appendix to this Order.

FINDINGS OF FACT

1. Friends of Lloyd, Inc. is a Florida non-profit corporation formed for

the purpose of protecting Jefferson County from harmful development. The

Council of Neighborhood Associations of Tallahassee/Leon County (CONA) is a non-

profit Florida corporation whose members are the neighborhood associations in

Leon county; members of those associations reside in 42 Leon County

neighborhoods dispersed throughout Leon County. CONA's purposes and goals

include protection of the quality of life and environment in Leon County. The

Thomasville Road Association's members are principally residents of Leon County.

The Association was formed to promote responsible growth management in northern

Leon County. None of the Petitioners are owners or "developers" of a

Development of Regional Impact within the terms or scope of Chapter 380, Florida

Statutes. Rather, Petitioners are members of non-profit organizations

interested in the environment and growth management of Leon County.

2. The Department of Community Affairs (the "Department") is the state

land planning agency with the power and duty to administer and enforce Chapter

380, Florida Statutes, and the rules and regulations promulgated thereunder.

Sections 380.031(18), and 380.032(1), Florida Statutes (1987).

3. Texaco is a business entity that proposes to develop a "tank farm"

near the community of Lloyd in Jefferson County, Florida. The Texaco tank farm

is a "petroleum storage facility" as that term is used in Rule 28-24.021, F.A.C.

4. Colonial is a business entity that proposes to develop a petroleum

pipeline that will connect to the Texaco tank farm. The pipeline is designed

to carry and contain petroleum products

5. For purposes of standing, the parties have stipulated that certain

environmental hazards can reasonably be expected to occur as a result of the

existence of the pipeline/tank farm. No competent evidence was submitted

regarding those hazards.

6. As a result of the stipulation, Petitioners have each established

injury-in-fact so that they are "adversely affected" by the challenged rule to

an extent sufficient to confer upon them standing to maintain this action under

Section 120.56, Florida Statutes.

7. On September 7, 1989, one of the Petitioners sent Respondent a letter

suggesting that the proposed tank farm development to be built in Jefferson

County should be required to undergo review as a DRI. Enclosed with the letter

was a proposed circuit court complaint pursuant to Section 403.412(2)(c),

Florida Statutes. Petitioner expressed its intention of filing this circuit

court action, but first provided Respondent a copy of the proposed complaint in

accordance with the provisions of Section 403.412, Florida Statutes.

8. In two letters dated September 8 and 25, 1989, Petitioner supplied

additional information to Respondent concerning the tank farm project and

contended that in making its determination as to whether the development must

undergo DRI review, Respondent should consider the storage capacity of both the

tank farm and the pipeline.

9. On October 9, 1989, Respondent answered Petitioner's first letter, and

stated that the proposed project was not required to undergo DRI review because

the total storage capacity of the tanks was only seventy-eight percent (78%) of

the threshold set out in Chapter 28-24, F.A.C.

10. On October 13, 1989, Respondent answered Petitioner's second and third

letters, stating that with respect to the pipeline, it has been long standing

departmental policy to interpret "storage facilities" as meaning only the tanks,

not the pipeline, when determining whether petroleum storage facilities meet the

DRI thresholds set out in Chapter 28-24.

11. The proposed tank farm would have nine tanks with a total capacity of

155,964 barrels, which is, as Respondent determined in its letters,

approximately seventy-eight percent (78%) of the applicable DRI threshold for

"petroleum storage facilities" set forth in Chapter 28-24, F.A.C.

12. The proposed pipeline's capacity over its approximate forty-five mile

length from Bainbridge, Georgia to the tank farm is approximately 34,000

barrels. The proposed pipeline's volume flow capacity from the Florida/Georgia

state line to the site of the prosed tank farm is approximately 13,500 barrels

over approximately 18 miles.

13. If the pipeline's volume capacity from Bainbridge, Georgia is added to

the tank farm's volume capacity, the resulting project would be approximately

ninety-five percent (95%) of the applicable DRI threshold in Chapter 28-24. If

the pipeline's volume capacity from the state line is added to the tank farm's

volume capacity, the resulting project would be approximately eighty-five

percent (85%) of the threshold. In either instance, the project would exceed

the eighty percent (80%) threshold that may require it to undergo DRI review

although the project would be Presumed not to be a DRI under the Statute.

14. The Department does not require developments outside Chapter 28-24's

enumeration to undergo DRI review. The Department has never treated petroleum

Pipelines as "petroleum storage facilities," or as otherwise subject to DRI

review. On Several occasions, the Department has applied the petroleum storage

facility guideline and standard to petroleum tank farms without determining

whether a pipeline was attached to the tank farm. On one prior occasion, the

Department has explicitly stated that Petroleum Pipelines are not subject to DRI

review.

15. The Petitioners contend that Department's Position that pipelines are

not "petroleum storage facilities" is an invalid policy because it has not been

adopted as a rule. There is no dispute the Department's Position on this issue

has not been promulgated as a rule.

16. If a facility were represented to be a Petroleum pipeline, but was

actually designed as and operating as a petroleum storage facility, the

Department would apply the Petroleum storage facility DRI guideline and standard

to that facility.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding. Section 120.56, Florida Statutes

(1987).

18. Intervenors Colonial and Texaco have standing to participate in this

proceeding as their substantial interests may be determined hereby.

19. In its Motion to Dismiss, Respondent challenged the Petitioner's

standing to maintain this action under both Chapter 380 and Section 120.56,

Florida Statutes (1987). At the hearing, the parties stipulated that

Petitioners have standing under Section 120.56, Florida Statutes. However,

Respondent continues to challenge the Petitioner's standing under Chapter 380,

Florida Statutes.

20. Respondent argues that Petitioners do not have standing pursuant to

Section 380.06 Florida Statutes because they do not possess the requisite status

within the terms of Section 380.06, Florida Statutes, i.e., none of the

Petitioners is an owner or a developer of a development of regional impact and

hence are not within the zone of interest, or "regulatory statutory purpose" of

Section 380.06, Florida Statutes. However, Respondent fails to recognize the

distinction between a rule challenge proceeding under Section 120.56, Florida

Statutes and a proceeding challenging the issuance of a DRI under Section

380.06, Florida Statutes.

Each of the cases cited by Respondent to support its contention that

Petitioners lack standing arise in the context of a Section 120.57 proceeding.

E.g., Peterson v. Department of Community Affairs, 386 So.2d 879 (Fla. 1st DCA

1980); Suwannee River Area Council Boy Scouts of America v. DCA, 384 So.2d 1369

(Fla. 1st DCA 1980); Caloosa Property Owners, Inc. v. Palm Beach County Board

of County Commissioners, 429 So.2d 1266 (Fla. 1st DCA 1983). While that case

law does limit participation of persons who are not developers or landowners in

certain 120.57 proceedings arising under Chapter 380, Respondent has failed to

cite any case that limits the standing of a petitioner in a rule challenge

proceeding.

21. Issues surrounding standing in a section 120.57 case may be different

than those in a Section 120.56 rule challenge. As explained in Society of

Opthomology v. Board of Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988):

[S]tanding in a [Section 120.57)

licensing proceeding may well have to be

predicated on a somewhat different basis

than standing in a rule challenge

proceeding because there can be . . . a

difference between the concept of

"substantially affected" under Section

120.56(1) and "substantial interests"

under Section 120.57(1). Id. at 1287-88.

Although the court held that the petitioner lacked standing in the Section

120.57 case of Society of Opthomology, supra, the court distinguished the

earlier rule challenge case of Florida Medical Association v. Department of

Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983). In Florida Medical

Association, the court held that the basis for standing in a rule challenge case

need not be found within the particular statute being implemented by the agency

action. Id. at 1117. Quoting from Florida Medical Association, the Society

Opthomology court explained:

We note Appellee's contention that

Appellants must suffer an injury solely

within the "zone of interest" protected

by Chapter 463. This is incorrect.

Since the crux of the controversy

involves a claim that Chapter 463 does

not authorize the rule, it is obvious

that the effect of other statutes must

be considered in determining standing.

Neither [of the cases] upon which

Appellee relies is authority for the

proposition that the basis for standing

must be found within the particular

statutes being implemented by agency

action.

Society of Opthomology at 1287, quoting Florida Medical Association, 426 So.2d

at 1117-18.

22. In sum, there is no independent requirement that a petitioner in a

rule challenge proceeding have standing under an agency's enabling legislation

in addition to the requirement of standing set out in Section 120.56, Florida

Statutes. Thus, while Chapter 380 may leave to the Department of Community

Affairs the responsibility to enforce the statute, Petitioners have an interest

in seeing that the responsibility is carried out through valid rules and

procedures. Accordingly, Respondent's motion to dismiss for lack of standing

under Chapter 380 (Motion to Dismiss, Issue I) is denied.

23. Section 380.06(2)(d) provides the following concerning application of

the development of regional impact guidelines and standards:

(d) The guidelines and standards shall

be applied as follows:

1. Fixed thresholds.-

a. A development that is at or below 80

percent of all numerical thresholds in

the guidelines and standards shall not

be required to undergo development-of-

regional-impact review.

b. A development that is at or above

120 percent of any numerical threshold

shall be required to undergo

development-of-regional-impact review.

2. Rebuttable presumptions.

a. It shall be presumed that a

development that is between 80 and 100

percent of a numerical threshold shall

not be required to undergo development

of-regional-impact review.

b. It shall be presumed that a

development that is at 100 and 120

percent of a numerical threshold shall

be required to undergo development-of-

regional-impact reviews. (e.s.)

24. The development of regional impact guidelines and standards appear in

Section 380.0651, Florida Statutes, and in Rule Chapter 28-24, Florida

Administrative Code. Chapter 28-24, Florida Administrative Code, is a rule

promulgated by the Administration Commission, and approved by the legislature.

(House Concurrent Resolution No. 73-1039, Laws of Florida, 1973) Rule 28-24.021

states that:

Petroleum Storage Facilities

(1) Subject to Section 380.06(2)(d),

F.S., the following developments shall

be developments of regional impact and

subject to the requirements of Chapter

380, Florida Statutes.

(b) Any other proposed facility or

combination of facilities for the

storage of any petroleum product, with a

storage capacity of over two hundred

thousand (200,000) barrels.

25. In applying the petroleum storage facility DRI threshold to the Texaco

tank farm and Colonial pipeline, the Department did not include the volume of

petroleum potentially found in the pipeline because the pipeline was not deemed

by the Department to be a "facility or combination of facilities for the storage

of any petroleum product." As explained in DCA's October 13, 1989 letter to

Petitioners, the reason that DCA applied the petroleum storage facility DRI

threshold in this fashion is that, "A pipeline is obviously designed to

transport petroleum products to the storage tanks from another storage source."

In other words, a petroleum products pipeline is deemed by the Department to be

a petroleum transportation facility, not a petroleum storage facility.

26. While Petitioners challenge this interpretation as constituting an

unpromulgated rule, this application of the petroleum storage facility DRI

threshold is consistent with the plain and unambiguous meaning of the word

"storage."

27. Even if the Department's statements in the letters of October 9 and

13, 1989 can be properly termed a "policy," the Department has no duty to

promulgate such a policy through Section 120.54 rulemaking procedures.

28. There is no requirement that an agency definition or application of

the plain meaning of a statutory or rule term must be formally adopted as a

definitional rule it may be employed in an administrative action. Islands

Harbor v. Department of Natural Resources, 495 So.2d 209, 221 (Fla. 1st DCA

1986). The alleged unadopted rule that Petitioners challenge is merely the

Department's application of Rule 28-24.021's plain meaning to a particular

project which the Petitioners find objectionable. It is not the October, 1989

letters that establish that policy, but rather the plain meaning of the

Administration Commission's rule which is an exclusive enumeration of the

categories of projects or developments considered to be encompassed by Section

380.06, Florida Statutes. The Department's administrative construction of a

statute committed to its jurisdiction for administration is entitled to great

weight and should not be overturned unless clearly erroneous. Department of

Administration v. Moore 524 So.2d 704 (Fla. 1st DCA 1988).

29. Petitioners contend that the "only real difference between the

pipeline and the tank farm is their respective shapes and that one is located

above the ground while the other is located below the ground." However, this

view ignores the obvious difference in purpose between a tank farm, (which is

intended mainly to "store" the product) and a pipeline (which is intended

primarily to transport the product.) If the legislature had intended to include

petroleum transportation facilities or devices under the DRI statute, it could

have Specifically so provided. The Department has drawn a logical distinction

between the two.

30. The language of the rule is clear on its face - the threshold applies

only to facilities for the storage of petroleum. Both statutes and rules must

be given their plain meaning. State v. Egan, 287 So.2d 1 (Fla. 1973); Boca

Raton Artificial Kidney Center v. Department of Health and Rehabilitative

Services, 493 So.2d 1055 (Fla. 1st DCA 1986).

"The legislature must be understood to

mean what is has plainly expressed, and

this excludes construction. The

legislative intent being plainly

expressed, so that the act read by

itself or in connecting with other

statutes pertaining to the same subject

is clear, certain, and unambiguous, the

courts have only the simply and obvious

duty to enforce the law according to its

terms. Cases cannot be included or

excluded merely because there is

intrinsically no reasons against it.

Even where a court is convinced that the

Legislature really meant and intended

something not expressed in the

phraseology of the act, it will not deem

itself authorized to depart from the

plain meaning of the language which is

free from ambiguity. If a legislative

enactment violates no constitutional

provision or principle, it must be

deemed its own sufficient and conclusive

evidence of justice, propriety, and

policy of its passage. Courts have been

no power to set it aside or evade its

operation by forced and unreasonable

construction. If it has been passed

improvidently the responsibility is with

the Legislature and not the courts.

Whether the law be expressed in general

or limited terms, the Legislature should

be held to mean what they have plainly

expressed and consequently no room is

left for construction, ...

Van Pelt v. Hilliard, 78 So. 693 (Fla. 1918).

31. The alleged unpromulgated "rule" is merely the Department's use of the

commonly understood definition of the word "storage" in its application of the

phrase "petroleum storage facilities" to the proposed pipeline. A pipeline, by

design and function, and common understanding and dictionary definition is not a

"storage facility." Webster's Dictionary defines "storage" as "the safekeeping

of goods in a depository (as a warehouse)." While pipelines contain petroleum

products, the pipelines main purpose is not to serve as a depository from those

products.

32. Chapter 28-24 is a "statutory" rule bearing the ratification of the

Legislature. See, House Concurrent Resolution No. 73-1039, Laws of Florida,

Vol. 1, p. 1337. The Department does not possess Section 120.54(7) rulemaking

authority to adopt or amend a rule in Chapter 28-24, and any attempt to change

those guidelines and standards would amount to a usurpation of the rulemaking

authority delegated by the legislature to the Administration Commission.

33. Essentially, Petitioners seek to require the Department to add

pipelines to the categories of projects subject to DRI review. While such

inclusion may be consistent with the stated legislative goals of the DRI

statute, the Department is simply not at liberty to unilaterally add to or

expand the categories of developments in the Guidelines and Standards. An

interpretation of Section 380.06 that would allow the Department to add types of

development to the guidelines and standards of Chapter 28-24, Florida

Administrative Code, would be invalid. See e.g., Microtel, Inc. v. Florida

Public Service Commission, 464 So.2d 1189 (Fla. 1985); Cross Keys Waterways v.

Askew, 351 So.2d 1062 (Fla. 1st DCA 1977), aff'd, Askew v. Cross Keys Waterways,

372 So.2d 913 (Fla. 1978).

34. Based upon the foregoing Findings of Fact and Conclusions of Law,

Petitioners have failed to carry their burden of proving that the Department's

application of Rule 28-24.021 is a policy invalid for lack of formal adoption

under Section 120.54, Florida Statutes, or that the Department's "policy" is an

invalid exercise of delegated legislative authority.

For these reasons, it is

ORDERED:

That the Petition for Administrative Determination of Invalidity of an

Unpromulgated Rule filed by Petitioners is DISMISSED.

DONE and ORDERED this 4th day of January, 1990, in Tallahassee, Florida.

___________________________

J. STEPHEN MENTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division Administrative Hearings

this 4th day of January, 1990.

APPENDIX Case Number 89-6100RU

The parties have submitted proposed findings of fact. It has been noted

below which proposed findings of fact have been generally accepted and the

paragraph number(s) in the Recommended Order where they have been accepted, if

any. Those proposed findings of fact which have been rejected and the reason

for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1. Adopted in substance in Findings of Fact

2. Adopted in substance in Findings of Fact

3. Adopted in substance in Findings of Fact 1.

4. Subordinate to Findings of Fact 5.

5. Subordinate to Findings of Fact 6.

6. Adopted in substance in Findings of Fact

7. Adopted in substance in Findings of Fact 8.

8. Adopted in substance in Findings of Fact 9.

9. Adopted in substance in Findings of Fact 10.

10. Adopted in substance in Findings of Fact 11.

11. Adopted in substance in Findings of Fact 12.

12. Adopted in substance in Findings of Fact 13.

13. Rejected as not supported by competent

substantial evidence.

14. Subordinate to Findings of Fact 14 and 16.

15. Subordinate to Findings of Fact 14 and 16.

16. Subordinate to Findings of Fact 14 and 16.

17. Rejected as constituting legal argument

rather than a finding of fact.

18. Adopted in substance in Findings of Fact 15.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1. Adopted in substance in Findings of Fact 1.

2. Adopted in substance in Findings of Fact 2.

3. Adopted in substance in Findings of Fact 3.

4. Adopted in substance in Findings of Fact 4.

5. Rejected as constituting legal argument

rather that a finding of fact.

6. Rejected as constituting legal argument

rather that a finding of fact.

7. Adopted in substance in Findings of Fact 7

and 8.

8. Adopted in substance in Findings of Fact

9 and 10.

9. Adopted in substance in Findings of Fact 15.

10. Adopted in substance Fin Findings of Fact

11.

11. Adopted in substance in Findings of Fact 12

and 13.

12. Adopted in substance in Findings of Fact 14.

13. Rejected as constituting legal argument

rather than a proposed finding of fact.

14. Adopted in substance in Findings of Fact 16.

15. Adopted in substance in Findings of Fact 14.

16. Rejected as irrelevant and as constituting

a legal conclusion rather than a finding

of fact.

The Intervenor's Proposed Findings of Fact. The Intervenor Colonial Pipe Line

Company submitted a proposed final order which has been adopted by the

Intervenor Texaco Trading and Transportation Company. The following rulings are

directed towards the findings of fact contained in the proposed final order

submitted by Colonial.

Proposed Finding Paragraph Number in Recommended Order of Fact Number

of Acceptance or Reason for Rejection

1. Adopted in substance in Findings of Fact 9

and 10.

2. Adopted in substance in Findings of Fact

4, 9 and 10.

3. Rejected as constituting legal argument

rather than a finding of fact.

4. Adopted in substance in Findings of Fact 10.

5. Rejected as constituting legal argument

rather than a finding of fact.

6. Rejected as constituting legal argument

rather than a finding of fact.

COPIES FURNISHED:

Guyte P. McCord, III, Esquire

Macfarlane, Ferguson, Allison

& Kelly

215 South Monroe Street

Suite 804

Tallahassee, Florida 32302

Gary M. Ketchum, Esquire

P.O. Box 478

Monticello, Florida 32344

Anne Terry, Esquire

David L. Jordan, Sr., Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Ed Stafman, Esquire

The Murphy House

327 East Park Avenue

Tallahassee, Florida 32301

Wade L. Hopping, Esquire

Richard S. Brightman, Esquire

P. O. Box 6526

Tallahassee, Florida 32314

Liz Cloud, Chief

Bureau of Administration

The Capitol, Room 1802

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Thomas G. Pelham, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

Larry Keesel

Department of Community Affairs

General Counsel

2740 Centerview Drive

Tallahassee, Florida 32399

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.