91-006391RX The Palm Beach Garden Club, Inc.; The Florida Audubon Society, Inc.; And The Florida Wildlife Federation, Inc. vs. Department Of Agriculture And Consumer Services Status: Closed DOAH Final Order on Tuesday, December 31, 1991.

Summary: Division of Forestry open burning rule provides adequate standards and does not vest unbridled discretion nor delegate permit authority to sugar cane league

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE PALM BEACH GARDEN CLUB, INC., )

THE FLORIDA AUDUBON SOCIETY, INC., )

AND THE FLORIDA WILDLIFE )

FEDERATION, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 91- 6391RX

)

STATE OF FLORIDA DEPARTMENT OF )

AGRICULTURE AND CONSUMER SERVICES, )

)

Respondent, )

and )

)

FLORIDA SUGAR CANE LEAGUE, INC., )

)

Intervenor. )

___________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Mary Clark, held a formal hearing in the above-

styled case on October 28, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: David G. Guest, Esquire

Kenneth B. Wright, Esquire

Sierra Club Legal Defense Fund

Post Office Box 1329

Tallahassee, Florida 32302

For Respondent: Gabriel Mazzeo, Esquire

Richard D. Tritschler, Esquire

Florida Department of Agriculture

and Consumer Services

Mayo Building, Room 512

Tallahassee, Florida 32301

For Intervenor: Gary P. Sams, Esquire

Gary V. Perko, Esquire

Hopping, Boyd, Green & Sams

Post Office Box 6526

Tallahassee, Florida 32314

STATEMENT OF THE ISSUES

Pursuant to Section 120.56, F.S., Petitioners have challenged the

Department of Agriculture and Consumer Services' existing Rule 5I-2.006, F.A.C.,

and the agency's method of authorizing the Florida Sugar Cane League's pre-

harvest sugar cane burning program pursuant to that rule. The specific issues

for determination are as follows:

1. Whether the rule contains inadequate

standards to guide agency decisions and

vests unbridled discretion in agents of

the Department;

2. Whether the Department has utilized

an illegal, unpromulgated rule to delegate

permitting authority to the Florida Sugar

Cane League, Inc.

PRELIMINARY STATEMENT

On October 7, 1991, Petitioners filed a Petition for the Administrative

Determination of Invalidity of Respondent's Rule 5I-2.006, F.A.C. On October

18, 1991, Petitioners moved for leave to amend the petition to challenge

Respondent's method of authorizing Intervenor's pre-harvest sugar cane burning

program as an illicit rule and improper delegation of permitting authority.

Also on October 18th the parties filed their stipulation as to standing of the

Petitioners and the Intervenor. Leave to amend was granted without objection on

October 28, 1991.

At the commencement of the hearing, Petitioners withdrew from their amended

petition all allegations concerning paraquat and mercury emissions, leaving as

disputed facts the allegations related to general health risks of burning and

the delegation of authority to the Sugar Cane League.

Petitioners presented the testimony of David Utley, District Manager of the

Department's Division of Forestry, and Charles Lee, Senior Vice President of the

Florida Audubon Society. Petitioners also introduced Petitioners' Exhibit Nos.

3(F), 3(G), 15, 52(A-E), 71, 73, 75-82, 84, 85, 87, 89, 91, 92, 94-98, 104, 105,

and 106(B), all of which were admitted into evidence. However, Petitioners'

Exhibit Nos. 76, 78, 79, and 85 were admitted subject to objections relating to

the draft nature of each document. Likewise, Petitioners' Exhibit No. 89 was

admitted for the limited purpose of showing that a letter was sent from the

Department of Health and Rehabilitative Services to the Florida Sugar Cane

League. Petitioners' Exhibit Nos. 101 and 106(A) were marked for

identification, but were not introduced nor admitted into evidence.

Respondent called as its witnesses Mr. Utley and Michael C. Long, Chief of

Fire Control for the Division of Forestry. The Department introduced

Respondent's Exhibit No. 1 which was admitted into evidence without objection.

Intervenor presented the testimony of Mr. Utley; Anderson Rackley, Vice

President and General Manager of the Florida Sugar Cane League, Inc.; Walter

Parker, Assistant to the Vice President of United States Sugar Corporation; Ken

Roberts of Southern Environmental Sciences, Inc., who was accepted as an expert

in air quality engineering; and Kennard F. Kosky, President of KBN Engineering

and Applied Sciences, who was accepted as an expert in air pollution control

regulation and engineering, ambient air quality monitoring, and air quality

impact analysis including dispersion modeling. Intervenor also introduced

Intervenor's Exhibit Nos. 5, 6, 21, 23, 24, and 40-42, all of which were

admitted into evidence without objection.

After filing of the transcript on November 27, 1991, the parties submitted

proposed Findings of Fact and Conclusions of Law. Specific rulings on the

Proposed Findings of Fact are set forth in the attached Appendix.

FINDINGS OF FACT

1. Petitioners, Palm Beach Garden Club, Inc., the Florida Audubon Society,

Inc., and the Florida Wildlife Federation, Inc., are nonprofit Florida

corporations whose purposes include the promotion of environmental protection

and conservation of natural resources.

2. Respondent, the Florida Department of Agriculture and Consumer

Services, is charged with regulating open burning undertaken for agricultural,

silvicultural, and rural land clearing purposes throughout Florida.

3. Intervenor, the Florida Sugar Cane League, Inc. (League), is a

nonprofit Florida corporation which represents most of Florida's sugar cane

growers and processors. From October to March each year, League members burn

mature sugar cane in the fields to prepare for harvesting and milling

operations.

4. The substantive provisions of Rule 5I-2.006 have appeared in the

Florida Administrative Code for over twenty years without significant change.

5. Pursuant to its rulemaking authority under the Florida Air and Water

Pollution Control Act (Chapter 403, Florida Statutes), the then-existing

Department of Pollution Control ( DPC) originally promulgated the rule as part of

its comprehensive open burning regulations in Chapter 17-5, F.A.C., on July 1,

1971.

6. In the Environmental Reorganization Act of 1975, the Florida

Legislature transferred the general powers and duties of the DPC to the

Department of Environmental Regulation ( DER). However, the Legislature made an

exception to this broad transfer, by specifying that:

all powers, duties, and functions of the

Department of Pollution Control relating to

open burning connected with rural land

clearing, agricultural, or forestry

operations except fires for cold or frost

protection are transferred by a type four

transfer, as defined in Section 20.06(4),

Florida Statutes, to the Department of

Agriculture and Consumer Services.

Ch. 75-22, Section 8, Florida Laws.

7. In accordance with the Reorganization Act, the provisions of Chapter

17-5, F.A.C., dealing with agricultural and silvicultural burning were

transferred to the Department of Agriculture and Consumer Services Division of

Forestry's rules in Chapter 5I-2, F.A.C.

8. Despite this administrative transfer, the substance of the rule has not

changed since its original promulgation by the DPC. Rule 5I-2.006 currently

provides:

(1) Open burning between the hours of 9:00

A.M. and one hour before sunset (except fires

for cold or frost protection) in connection

with agricultural, silvicultural or forestry

operations related to the growing, harvesting,

or maintenance of crops or in connection with

wildlife management is allowed, provided that

permission is secured from the Division of

Forestry of the Department of Agriculture and

Consumer Services prior to burning. The

Division of Forestry may allow open burning at

other times when there is reasonable assurance

that atmospheric and meteorological conditions

in the vicinity of the burning will allow good

and proper diffusion and dispersement of air

pollutants, and ready control of such fires

within the designated boundaries.

(2) The Division of Forestry may suspend

after reasonable notice any such permission

whenever atmospheric or meteorological

conditions change so that there is improper

diffusion and dispersion of air pollutants

which create a condition deleterious to

health, safety, or general welfare, or which

obscure visibility of vehicular or air

traffic.

(3) Fires must be attended at all times.

9. According to the unrebutted testimony of Kennard Kosky, who

participated in the original promulgation of the rule while working with the DPC

in 1971, the DPC developed the 9:00 a.m.-to-one hour before sunset limitation

after determining that daytime hours provide the best atmospheric and

meteorological conditions for agricultural and silvicultural burning. Recent

analysis of atmospheric dispersion modeling performed by Mr. Kosky indicates

that impacts from night burning are approximately two to five times greater than

impacts from open burning during the time periods prescribed in the rule.

10. Because atmospheric and meteorological conditions normally change

after sunset, the rule prohibits night burning unless special authorization is

obtained from the Division of Forestry. Under the terms of the rule, the

Division may allow night burns only "when there is reasonable assurance that

atmospheric and meteorological conditions in the vicinity of the burning will

allow good and proper diffusion and dispersement of air pollutants... ." Rule

5I-2.006(1), F.A.C. The Department has implemented this requirement through the

use of the Nighttime Stagnation Index ( NSI) which measures the potential of

smoke at night to create visibility problems and determines a potential for

mixing of smoke and fog. The index is provided twice a day by the National

Weather Service. The Division of Forestry's Bureau of Fire Control has

developed guidelines for issuing night burning authorizations on the basis of

NSI values.

11. The rule reserves the Division of Forestry's authority to revoke any

previously-granted permission whenever changed atmospheric or meteorological

conditions create "a condition deleterious to health, safety, or general

welfare." Rule 5I-2.006(2), F.A.C. The Department has interpreted this

provision to prohibit open burning whenever the National Weather Service or DER

declares an "air stagnation advisory", or when DER declares an "air pollution

episode" pursuant to DER regulations. An interagency agreement executed in 1981

requires DER promptly to notify the Department of any air pollution episode or

any other circumstances requiring special control of open burning. ( Resp. Exh.

1, paragraph 3).

A halt to daytime burning is rare, in the experience of David Utley, but it has

occurred on notice from DER, and in that instance the Division of Forestry

contacted everyone to let them know there would be no burning allowed that day.

12. Statistics of the Division of Forestry indicate that open burning

related to agricultural, silvicultural, and land clearing activities is

relatively common throughout Florida. On average, agricultural burning of all

types represents approximately 61% of total acreage burned, whereas

silvicultural and land clearing activities represent approximately 22.8% and

15.7%, respectively.

13. In order to meet the administrative burden of authorizing the large

number of burning requests received each year, the Division of Forestry has

developed special authorization procedures for a number of governmental and

commercial interests which conduct open burning on a regular basis, including

cattlemen, the citrus and forest industries, the park services and others.

14. Each year, the Florida sugar industry harvests approximately 430,000

acres of sugar cane in the Everglades Agricultural Area ( EAA) of South Florida.

In preparation for harvest, growers burn cane fields in 30 to 70 acre tracts

between mid-October and mid-March each year. The pre-harvest burning is

necessary to remove thick underbrush and foliage that otherwise would preclude

workers from hand-harvesting the cane. The burning also is necessary to reduce

the amount of non-product material processed by the sugar mills.

15. The Division of Forestry has interpreted and applied Rule 5I-2.006,

F.A.C., to allow the League to obtain, on behalf of its members, a written burn

authorization letter prior to harvest each year. Subject to the Division's

authority to revoke permission based on prevailing atmospheric and

meteorological conditions, the authorization letter allows League members to

burn sugar cane fields in Palm Beach, Hendry, Martin, and Glades Counties from

9:00 a.m. until one hour before sunset. League members must keep records of the

time, location, and wind conditions for each individual burn, and submit the

records to the Division of Forestry. (see e.q., Pet. Exh. 106(B))

16. For night burns, individual League members must notify the League

office of their desire to burn and other pertinent information. The League

office contacts the Division of Forestry by telephone to relay that information,

and to obtain the projected NSI. If the index is below a specified level, the

Division's Duty Officer gives the League office a computer-derived authorization

number for each authorized night burn. The League then notifies individual

members of their ability or inability to burn after hours. The League office

keeps records of each night burn on log sheets provided by the Division of

Forestry.

17. The annual burn authorization letter also places certain site-specific

conditions on the League's annual pre-harvest burn program. For example, this

year's authorization letter divides the EAA into four zones and prescribes site-

specific conditions for each zone. Under certain wind conditions specified for

each zone, the 1991 authorization letter either prohibits burning altogether or

requires use of backfiring techniques to reduce visibility impacts. Backfiring

produces approximately 60% less visible emissions than the ring-fire technique

normally utilized for agricultural field burning.

18. These conditions are applicable to both daytime and nighttime burning.

However, in accordance with the terms of the rule, the 1991 authorization letter

still requires special authorization from the Division of Forestry for night

burns (i.e., after one hour before sunset) and early burns (i.e., between 6:00

a.m. and 9:00 a.m.). The authorization letter specifically requires an NSI of 8

or below for any night burns, and notes that special authorization for early

burns "will be granted on a hardship basis, if burning cannot be reasonably

conducted within other time periods." (Pet. Exh. 15).

19. To reduce the possibility of muck fires, the 1991 burn authorization

letter prohibits trash burning, and requires strict adherence to the Division's

"two-field" policy, which prohibits burning within two fields of an adjacent

wildlife area when the Fire Readiness Level reaches 4 or 5. (Pet. Exh. 15).

The 1991 letter also requires suppression of all muck fires within 48 hours.

(Pet. Exh. 15).

20. The blanket authorization arrangement has existed in various forms

since 1975, the year the Division of Forestry was given the responsibility to

regulate open burning. In 1975, for example, the arrangement required a

representative from the League to contact the local agency dispatcher daily to

confirm authorization for day, as well as nighttime burning.

In 1981 the daytime authorization covered the entire burning season, and

nighttime burning was permitted so long as the NSI was reported at 6 or less.

(Higher NSI values denote greater stagnation).

21. Documents introduced by the Petitioners from the files of the agency

and the League refer to the "issuance of burn permits" by the League. Those

terms were used, however, to describe the conduit and record-keeping functions

of the League under the annual authorizations. The League does not issue

permits.

22. The blanket authorization arrangement provides a convenient

administrative shortcut for League members and for the agency. The agency,

however, still retains and exercises the ultimate authority over the permitting

of individual burns.

No witness, nor, any competent evidence established that the agency's authority

has been delegated to the League.

23. The agency has not adopted a procedural nor substantive rule

describing the blanket authorization arrangement with the League or with any

other industry or group to which it grants such authority. The agency has not

adopted as a rule its guidelines related to the NSI nor related to its reliance

on DER and the National Weather Service for advisories as to meteorological and

atmospheric conditions.

24. Those guidelines have changed over the years and could change again.

For example, the stagnation level required for nighttime burning permission has

fluctuated between 6 and 8, according to the annual authorization letters to the

League. At one point, the annual authorization was amended to allow League

members to begin burning at 8:00 a.m., rather than 9:00 a.m., without the daily

check-in required for nighttime burning. (Pet. Exh. #75).

In 1987 the Division adopted guidelines applicable statewide for its personnel

to follow in issuing burning authorizations. (Pet. Exh. #95) Those guidelines

were transmitted to the League, but were not applied to the League. The

guidelines were not adopted as a rule.

25. The 1991 authorization for pre-harvest burn issued to the League

included the zones discussed in paragraph 17, above, and other conditions

addressed in paragraphs 18 and 19. Those conditions were not adopted as a rule.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has jurisdiction in this

proceeding pursuant to Section 120.56, F.S.

27. The parties have stipulated that Petitioners and Intervenors have

standing to participate in this proceeding.

28. To demonstrate the invalidity of a proposed or adopted rule,

Petitioners have the burden of proving by a preponderance of the evidence that

the rule is an invalid exercise of delegated legislative authority. This is a

stringent burden. Agrico Chemical Co. v. Department of Environmental

Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, Askew v. Agrico

Chemical Co., 376 So.2d 74 (Fla. 1979).

29. Section 120.52(8), Florida Statutes, defines "invalid exercise of

delegated legislative authority" as:

...action which goes beyond the powers, func-

tions and duties delegated by the Legislature.

A proposed or existing rule is an invalid ex-

ercise of delegated legislative authority if

any one or more of the following apply:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

set forth in section 120.54;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by section 120.54(7);

(c) The rule enlarges, modifies, or contra-

venes the specific provisions of law imple-

mented, citation to which is required by

section 120.54(7);

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency; or

(e) The rule is arbitrary or capricious.

30. Agencies are accorded wide discretion in exercise of their lawful

rulemaking authority. Dept. of Natural Resources v. Wingfield Development Co.,

581 So.2d 193 (Fla. 1st DCA 1991). When, as with Rule 5I-2.006, F.A.C., the

agency's interpretation of a statute has been promulgated in rulemaking

proceedings, the rule must be sustained if it does not exceed the agency's

statutory authority and is reasonably related to an appropriate statutory

purpose. Marine Fisheries Comm'n v. Organized Fisherman of Florida, 503 So.2d

935 (Fla. 1st DCA 1987), rev. denied, 511 So.2d 999 (Fla. 1987).

31. This deferential standard, which applies to the rule as well as the

meaning assigned to it by the agency, is particularly strong when, as here, the

challenged rule has been on the books for twenty years without legislative

correction. Department of Administration v. Nelson, 424 So.2d 852, 858 (Fla.

1st DCA 1982); Department of Commerce v. Matthews Corp., 358 So.2d 256, 260

(Fla. 1st DCA 1978).

32. Florida Department of Agriculture and Consumer Services' rule chapter

51-2, F.A.C. comprises the regulatory process transferred in 1975 from the

Department of Pollution Control.

Rule 5I-2.002, F.A.C. provides:

Declaration and Intent. The Department finds

and declares that the open burning of

materials outdoors and the use of outdoor

heating devices result in or contribute to air

pollution. The Department further finds that

regulation of open burning and outdoor heating

devices will reduce air pollution signifi-

cantly.

It is the intent of the Department to require

that open burning be conducted in a manner,

under conditions, and within certain periods

that will reduce or eliminate the deleterious

and noisome effect of air pollution caused by

open burning.

33. This rule renders unnecessary the Petitioners' and Intervenor's debate

as to whether open burning of preharvest sugar cane can or does produce

pollution.

34. The intent of the Department expressed in the second paragraph of this

rule is effectuated in Rule 5I-2.006, F.A.C., the rule at issue here.

35. The Petitioners' amended petition complains that Rule 5I-2.006, F.A.C.

contains no monitoring requirements, no standards, no meaningful restrictions on

pollution emissions, "[ i]n short, the rule contains completely inadequate

standards to guide agency decisions, and vests unbridled discretion in agents of

the Department." (Amended Petition filed 10/18/91, paragraph 1.)

36. Rule 5I-2.006, F.A.C., contains within its four corners the following

standards and criteria for open burning generally:

A. Open burning may be conducted between the

hours of 9:00 a.m. and one hour before sunset;

B. Permission must be secured from the Divi-

sion of Forestry;

C. The burning must not be ignited so as to

cause it to continue spreading after one hour

before sunset;

D. Open burning may be allowed at other times --

i. if the atmospheric and meteorological con-

ditions in the vicinity of the burning will

allow good and proper diffusion and disperse-

ment of air pollutants,

and

ii. there is ready control of such fires

within the designated boundaries.

E. The Division of Forestry may suspend after

reasonable notice any permission whenever --

i. atmospheric or meteorological conditions

change so that there is improper diffusion and

dispersion of air pollutants

a. which create a condition deleterious to

health, safety, or general welfare, or

b. which obscure visibility of vehicular or

air traffic.

F. Fires must be attended at all times.

(see text of rule in Findings of Fact, paragraph #8)

37. In addition to the rule, Section 590.12, F.S., provides the following

standards and criteria:

A. Every person conducting a burning

operation must:

i. First obtain authorization from the

Division of Forestry;

ii. provide adequate fire lines, manpower,

and firefighting equipment for the control of

the fire;

iii. not permit an authorized fire to escape

from the authorized area.

B. Any person violating those standards and

criteria is guilty of a second degree misdemeanor.

38. These standards plainly preclude the agency's exercise of arbitrary

power to determine private rights with an unbridled discretion and thus do not

suffer the defect found in a Game and Fresh Water Fish Commission rule

invalidated in Barrow v. Holland, 125 So.2d 749, (Fla. 1960), a case relied on

by Petitioners and a case predating contemporary Chapter 120, F.S. but

nonetheless authoritative.

39. The offending Commission Rule 6, in contrast to Rule 5I-2.006, F.A.C.

provides only:

The Director may issue permits giving the

right to take or to be in possession of

wildlife or fresh water fish, or their nest

of eggs, for scientific, educational,

exhibition, propagation or management

purposes. Such permits shall be subject to

such terms, conditions, and restrictions as

may be prescribed by the Commission, provided

that no such permits shall be operative, as to

migratory birds unless and until the holder

thereof has a permit from the U.S. Fish and

Wildlife service permitting the taking,

exhibiting, or possession of such birds, their

nests or eggs.

Traveling shows, zoos, or wildlife exhibits,

exhibiting wildlife and/or fresh water fish

native to Florida, shall be required to secure

a permit before entering the State and shall

file with the Director localities over the

State where they expect to operate at such

localities. All such traveling shows, zoos or

wildlife exhibits shall be subject to inspec-

tion at all times by Wildlife Officers of the

Game and Fresh Water Fish Commission and

failure to comply with all requirements set

out by the Commission, including mistreatment

or neglect of such animals, shall be cause for

immediate cancellation of permit issued for

the operation of the show or exhibit.

(Barrow, supra, p. 752,

emphasis added)

40. The standard, "...deleterious to health, safety and welfare" is

essentially the same standard considered in State v. Hamilton, 388 So.2d 561

(Fla. 1980) where the Supreme Court upheld provisions of Chapter 403, F.S. which

make it a crime to cause pollution, "so as to harm or injure human health or

welfare, animal, plant or aquatic life or property."

41. The real problem Petitioners have with the rule is not its text, but

what is not included. That is, it does not go far enough to prevent certain

open burning by the sugar cane industry. The relief in this instance is not in

a Section 120.56, F.S. proceeding, but in a petition for rulemaking, denial of

which is subject to judicial review. See Stephen Krisher v. Department of

Lottery, 10 FALR 2465, 2469 (Final Order by Wm. R. Dorsey, Hearing Officer,

dated 3/31/88)

42. Petitioners also complain of the unpromulgated policies of the agency

reflected in a series of letters, written guidelines and other documents

providing burn authorization to the Sugar Cane League's members and describing

the limits of that authorization. Some of those guidelines, for example the

1987 guidelines discussed in Finding of Fact paragraph #24, have statewide

application; others, such as the League members' annual authorizations, are more

limited. None have been promulgated as rules pursuant to Section 120.54, F.S.

43. Instead, they are subject to the case by case scrutiny of evolving

policy that is, for now, specifically approved in McDonald v. Department of

Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), pursuant to Section

120.57(1), F.S. Whether those policies must be adopted under the new

requirements of Section 120.535, F.S., effective March 1, 1992, remains to be

seen.

44. The requirement of permission or authorization by the Division of

Forestry in Section 590.12, F.S. or in Rule 22I-2.006, F.A.C. does not require

permission for every discrete event as argued by Petitioners.

45. Permission is nonetheless effective if it is granted for a single

burn, for a series of burns in a day or night, or for a season of burns.

46. The blanket authorizations for burning are not, as found in Finding of

Fact paragraph #22, delegations to the Sugar Cane League of the agency's

permitting authority. Instead, they are in the nature of general permits,

issued with conditions, and subject to challenge in Section 120.57(1), F.S.

proceedings by parties with appropriate standing after notice by the agency with

appropriate point of entry. See, McDonald, supra; Friends of the Hatchineha,

580 So.2d 267 (Fla. 1st DCA 1991).

ORDER

Based on the foregoing, it is hereby, ordered the amended Petition for

Determination of Invalidity of Rule 5I-2.006, F.A.C. filed on October 18, 1991,

is DENIED.

DONE AND ORDERED this 31st day of December, 1991, in Tallahassee, Leon

County, Florida.

____________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the Division

of Administrative Hearings this 31st

day of December, 1991.

APPENDIX TO FINAL ORDER, CASE NO. 91- 6391RX

The following constitute specific rulings on the parties' proposed findings

of fact.

Petitioners' Proposed Findings

1.-3. Adopted in paragraph 14.

4.-6. Rejected as unnecessary.

7. Adopted in paragraphs 4. and 5.

8. Rejected as contrary to the evidence. Paragraph 2 of

the rule applies to day and night burning.

9. Adopted in substance in paragraph 9.

10. Rejected as unnecessary.

11. Adopted in paragraph 6.

12. Adopted in paragraph 7.

13. Rejected as an improper conclusion (as to the

implication that a separate permit is required for each

burn).

14.-15. Adopted in substance in paragraph 20.

16. Rejected as contrary to the evidence. The League does

not "issue permits".

17. Adopted in paragraph 10.

18.-19. Rejected as contrary to the evidence. See 16, above.

20. Adopted in substance in paragraph 24.

21. Rejected as unnecessary.

22. Adopted in summary in paragraph 21.

23.-27. Rejected as unnecessary.

28. Adopted in summary in paragraph 24.

29.-33. Rejected as unnecessary.

34. Adopted in summary in paragraph 24.

35.-36. Rejected as unnecessary.

37. Adopted in paragraph 24.

38.-43. Rejected as unnecessary.

44. Adopted in paragraph 24.

45. Rejected as contrary to the evidence. See paragraph 16,

above.

46. Adopted in paragraph 23.

47. Rejected as unnecessary.

48. Adopted in paragraph 23.

49. Rejected as unnecessary.

50. Adopted in paragraph 23.

51.-52. Adopted in paragraph 24.

53.-55. Rejected as unnecessary.

56. Adopted in paragraph 25.

57.-60. Rejected as unnecessary.

Respondent's Proposed Findings

1.-2. Adopted in paragraph 6.

3. (no paragraph 3)

4.-5. Adopted in paragraphs 7. and 8.

6.-7. Rejected as unnecessary.

8.-9. Adopted in paragraph 10.

10. Adopted in substance in paragraph 11.

11. Rejected as unnecessary.

12. Adopted in substance in paragraph 17.

13. Adopted in substance in paragraphs 17.-19.

Intervenor's Proposed Findings

1.-19. Adopted in corresponding numbered paragraphs.

20. Adopted in substance in paragraph 21.

21.-22. Adopted in substance in paragraph 22.

23.-24. Rejected as unnecessary.

25. Adopted in paragraph 22.

26.-30. Rejected as unnecessary.

COPIES FURNISHED:

David G. Guest, Esquire

Kenneth B. Wright, Esquire

Sierra Club Legal Defense Fund

P.O. Box 1329

Tallahassee, FL 32302

Gabriel Mazzeo, Esquire

Richard D. Tritschler, Esquire

Fla. Dept. of Agriculture

and Consumer Services

Mayo Building, Room 512

Tallahassee, FL 32301

Gary P. Sams, Esquire

Gary V. Perko, Esquire

Hopping, Boyd, Green & Sams

P.O. Box 6526

Tallahassee, FL 32314

Hon. Bob Crawford

Commissioner of Agriculture

The Capitol, PL-10

Tallahassee, FL 32399-0810

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, FL 32399-1300

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 RULE 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.

=================================================================

DISTRICT COURT OPINION

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

THE PALM BEACH GARDEN CLUB, NOT FINAL UNTIL TIME EXPIRES TO

INC., et al, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellants,

CASE NO. 92-272

vs. DOAH CASE NO. 91- 6391RX

STATE OF FLORIDA, DEPT. OF

AGRICULTURE, et al.

Appellees.

__________________________/

Opinion filed December 3, 1992.

An appeal from the Division of Administrative Hearings.

David G. Guest, Sierra Club Legal Defense Fund, Tallahassee, for Appellant.

Gary P. Sams, Hopping, Boyd, Green & Sams, Tallahassee, for Appellee Florida

Sugar Cane League, Inc.

Gabriel Mazzeo, Tallahassee, for Appellee State, Dept. of Agriculture and

Consumer Services.

PER CURIAM.

AFFIRMED.

BOOTH, BARFIELD and MINER, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable Mary Clark, Hearing Officer

WHEREAS, in that certain cause filed in this Court styled: Division of

Administrative Hearings

THE PALM BEACH GARDEN CLUB, INC.

THE FLORIDA AUDUBON SOCIETY, INC.

AND THE FLORIDA WILDLIFE

FEDERATION, INC.

vs. Case No. 92-272

Your Case No. 91- 6391RX

STATE OF FLORIDA, DEPARTMENT OF

AGRICULTURE AND CONSUMER SERVICES

and

FLORIDA SUGAR CANE LEAGUE, INC.

_______________________________

The attached opinion was rendered on December 3, 1992.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said

opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable James E. Joanos

Chief Judge of the District Court of Appeal of Florida, First District and

the Seal of said court at Tallahassee, the Capitol, on this 5th day of January,

1993.

___________________________________________

Clerk, District Court of Appeal of Florida,

First District