94-002720RP Gerald A. Robbins vs. Southwest Florida Water Management District Status: Closed DOAH Final Order on Friday, June 30, 1995.

Summary: Agency withdrew proposed amendments making rule challenge moot. Challenge to portion of rule unchanged by amendments should be 120.56 not 120.54.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD A. ROBBINS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2720RP

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

____________________________)

SUMMARY FINAL ORDER

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

designated Hearing Officer, Susan B. Kirkland, held a hearing on Respondent's

Motion to Dismiss by telephonic conference on April 11, 1995.

APPEARANCES

For Petitioner: Gerald Robbins, Pro Se

1026 Biltmore Drive Northwest

Winter Haven, Florida 33881

For Respondent: James A. Robinson

Senior Attorney

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34609-6899

STATEMENT OF THE ISSUES

Whether Respondent's proposed amendments to subsections (1) and (7) of Rule

40D-4.051, Florida Administrative Code are invalid exercises of delegated

legislative authority.

PRELIMINARY STATEMENT

On May 13, 1994, Petitioner, Gerald A. Robbins, filed a Petition to

Challenge Proposed Rule 40D-4.051. On May 20, 1994, Petitioner filed an Amended

Petition to Challenge Proposed Rule 40D-4.051, requesting that subsections (1)

and (7) be declared invalid as an invalid exercise of delegated legislative

authority. Respondent, Southwest Florida Water Management District, filed a

Motion to Dismiss Petition. The parties waived the 30 day requirement set forth

in Section 120.54(4)(c), Florida Statutes. By Order dated June 28, 1994, the

undersigned Hearing Officer dismissed the portion of the rule challenge as it

related to Subsection (7). Petitioner appealed the Order in Gerald Robbins v.

Southwest Florida Water Management District, Case No. 94-1717, 5th District

Court of Appeal. By Order dated October 10, 1994, the court denied Petitioner's

Petition for Review of Non-Final Administrative Action. Petitioner filed a

Motion for Clarification of Order and Petition to Enforce Mandate of This Court.

The court denied the untimely motion by Order dated December 7, 1994.

On February 13, 1995, Respondent filed Respondent's Motion to Dismiss. On

February 21, 1995, the undersigned Hearing Officer entered an Order to Show

Cause, requiring the Petitioner to file a response showing cause why the Motion

to Dismiss should not be granted. On March 9, 1995, Petitioner filed

Petitioner's Response to Respondent's Motion to Dismiss and Petitioner's

Response to Order to Show Cause. On March 27, 1995, Petitioner filed a

Supplement to Petitioner's Response to Show Cause Order.

A hearing was held on the Motion to Dismiss by telephonic conference on

April 11, 1995.

FINDINGS OF FACT

1. On April 22, 1994, Respondent, Southwest Florida Water Management

District (SFWMD), published proposed amendments to Rule 40D-4.051 in the Florida

Administrative Weekly, Volume 20, Number 16, at page 2450. The portions which

are the subject of this proceedings are as follows:

* 40D-4.051 Exemptions

<(1) exemptions="" are="" found="" in="">> [[The following

activities are exempt from permitting under

this chapter:

(1) The activities specified in]] Sections

373.406, Florida Statutes.

(2)-(7) No Change.

* Note: In the above quotation, language added to the statute

is within the <>>; deleted language is within the [[]].

2. On May 13, 1994, Petitioner, Gerald A. Robbins, filed a Petition to

Challenge Proposed Rule 40D-4.051. On May 20, 1994, Petitioner filed an Amended

Petition to Challenge Proposed Rule 40D-4.051.

3. In its rule challenge, Petitioner requests that 40D-4.051(1) be

rewritten as follows: "Exemptions are as found in Sections 373.406 AND 403.927

Florida Statutes."

4. On July 1, 1994, Respondent withdrew its proposed amendment to

Subsection (1) of Rule 40D-4.051. The following Notice of Withdrawal appeared

in Florida Administrative Weekly, Volume 20, No. 26:

Southwest Florida Water Management District

RULE TITLES: RULE NOS.:

Exemptions 40D-4.051(1)

NOTICE OF WITHDRAWAL

Notice is hereby given that the above proposed

rule amendment, published in the Florida

Administrative Weekly, Volume 20, Number 16,

on Page 2450, April 22, 1994, have (sic) been

withdrawn. This is the sole subsection being

withdrawn from rulemaking pursuant to Section

120.54(13)(b), Florida Statutes. The remainder

of the proposed amendments to Section 40D-4.051,

Florida Administrative Code remains subject to

Section 120.54(1), Florida Statutes.

5. By Order dated June 28, 1994, the portion of Petitioner's rule

challenge relating to Rule 40D-4.051(7) was dismissed. Petitioner appealed the

Order to the Fifth District Court of Appeal, Gerald A. Robbins v. Southwest

Florida Water Management District, Case No. 94-1717. The court denied

Petitioner's Petition for Review of Non-Final Administrative Action by Order

dated October 10, 1994.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Section 120.54, Florida

Statutes.

7. Section 120.54(4)(a), Florida Statutes, provides:

Any substantially affected person may seek

an administrative determination of the invalidity

of any proposed rule on the ground that the

proposed rule is an invalid exercise of delegated

legislative authority.

8. Petitioner's request for relief as it relates to proposed Rule 40D-

4.051(1) is essentially a request to amend the subsection to include language

concerning exemptions in Section 404.927, Florida Statutes. This is not a

proper request pursuant to a challenge to a proposed rule. Petitioner's remedy

is set forth in Section 120.54(5) which provides:

Any person regulated by an agency or having a

substantial interest in an agency rule may petition

an agency to adopt, amend, or repeal a rule or

provide the minimum public information required by

s. 120.53. The petition shall specify the proposed

rule and action requested. Not later than 30

calendar days after the date of filing a petition,

the agency shall initiate rulemaking proceedings

under this act, otherwise comply with the requested

action, or deny the petition with a written state-

ment of its reasons for the denial.

9. Additionally, the Respondent's withdrawal of the proposed amendment to

Rule 40D-4.051(1) renders the rule challenge moot. In State of Florida,

Department of Health and Rehabilitative Services v. Alice P., 367 So. 2d 1045,

1053 (Fla. 1st DCA 1979), the court held that an agency's withdrawal of the

proposed rules which were challenged in a Section 120.54(4) proceeding rendered

moot the issue of whether the proposed rules were an invalid exercise of

delegated legislative authority moot.

10. There were no proposed changes to Rule 40D-4.051(7), Florida Statutes,

and the notice of proposed rulemaking so indicated. Petitioner is challenging

the wording of subsection (7) as it exists in the currently adopted rule. A

challenge to the validity of Rule 40D-4.051(7) should be by a Section 120.56

proceeding rather than a Section 120.54(4) proceeding.

On the basis of all of the foregoing Findings of Fact and Conclusions of

Law, Respondent's Motion to Dismiss is GRANTED and it is ORDERED:

That the Amended Petition to Challenge Proposed Rule 40D-4.051 is

DISMISSED.

DONE AND ORDERED this 30th day of June, 1995, in Tallahassee, Leon County,

Florida.

___________________________________

SUSAN B. KIRKLAND

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 30th day of June, 1995.

COPIES FURNISHED:

James A. Robinson, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

Gerald A. Robbins

1026 Biltmore Drive, NW

Winter Haven, Florida 33881

Peter G. Hubbel

Southwest Florida Water Management

Executive Director

2379 Broad Street

Brooksville, Florida 34609-6899

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

The Capitol, Room 1802

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Summary 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

in the appellate district where the agency maintains its headquarters of where

the party resides. The Notice of Appeal must be filed within 30 days of

rendition of the order to be reviewed.