96-000879RP Gbs Groves, Inc., And Withers And Harshman, Inc. vs. Department Of Agriculture And Consumer Services Status: Closed DOAH Final Order on Monday, September 23, 1996.

Summary: Petitioners failed to establish sufficient facts to prove that proposed rule was an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GBS GROVES, INC., and )

WITHERS AND HARSHMAN, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 96-0879RP

)

FLORIDA DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

_______________________________________)

FINAL ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of

Administrative Hearings (Division), held a formal hearing in this matter on July

11, 1996, in Lakeland, Florida.

APPEARANCES

For Petitioner: James T. Griffiths

Qualified Representative

2930 Winter Lake Road

Lakeland, Florida 33803

For Respondent: Robert G. Worley, Esquire

Department of Agriculture and

Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

Does the Florida Department of Agriculture and Consumer Services

(Department)'s proposed rule 5E-1.023 constitute an invalid exercise of

delegated legislative authority?

PRELIMINARY STATEMENT

By Petition filed February 21, 1996, Petitioners challenged as an invalid

exercise of delegated legislative authority the Department's proposed rule 5E-1-

023, as published in the Florida Administrative Law Weekly, Volume 22, Number 5,

on February 2, 1996. This matter was initially scheduled to be heard on March

18, 1996, but the hearing was cancelled upon the granting of an unopposed motion

for continuance filed by Petitioners. The matter was rescheduled to be heard on

July 11, 1996.

At the hearing, Petitioners testified on their own behalf and offered the

testimony of Larry R. Gies, Edgar Davis, William G. Roe, II, Dr. H. J. Reitz,

Dr. Robert C. J. Koo, Dr. Ivan Stewart and Dr. Ashok Alva. Petitioners'

exhibits 1 through 35 were received as evidence. The Department offered the

testimony of Richard J. Budell, Kenneth Kuhl and Walt Kender. The Department's

exhibits 1 through 10 were received as evidence. The parties' Joint Prehearing

Stipulation (Joint Exhibit 1) was received as evidence.

Dr. Griffiths was determined to be a qualified representative.

A transcript of the Final Hearing was filed with the Division of

Administrative Hearings (Division) on August 7, 1996. The parties timely filed

their respective Proposed Findings of Fact and Conclusions of Law. A ruling on

each proposed finding of fact submitted by the parties has been made as

reflected in an Appendix to the Final Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant findings are made:

1. On February 2, 1996, the Department published in the Florida

Administrative Weekly, Volume 22, Number 5, the text of proposed rule to be

known as Rule 5ER-1.023, which the Department indicated that it intended to

adopt. The proposed rule reads:

5E-1.023 Fertilizer.

Procedures for Landowners and Leaseholders

to Submit the Notice of Intent to Comply

with Nitrogen Best Management Practices

(BMPs).

(1) Definitions

(a) "Interim Measures" means primarily

horticultural practices consistent with the

fertilizer recommendations published by the

University of Florida or the Florida

Agricultural and Mechanical University, or

modified by the Department, to reflect

public input.

(b) "Notice of Intent to Comply with BMPs"

means a notice of intent to comply with

nitrogen Interim Measures and/or BMPs, or

to no longer apply fertilizers or other

soil-applied nutritional materials

containing nitrogen.

(2) Notice of Intent to Comply with

Nitrogen BMPs and all document requests

made of the department must be submitted

to the Environmental Administrator, Florida

Department of Agriculture and Consumer

Services, Division of Agricultural

Environmental Services, 3125 Conner Blvd.,

Tallahassee, Florida 32399-1650. Proof of

providing Notice of Intent to the Department

must be retained by the submitter.

(3) The Notice must contain the following

information related to the implementation of

the BMPs and Interim Measures: the name of

the BMP or Interim Measures to be followed,

the date of implementation, the name or

other identification of the parcel or land

unit upon which the practices will be

implemented, the county(s) where said

parcels are located, and the signature of

the landowner(s) or leaseholder(s).

(4) The Department will consider requests

to: (a) adopt Best Management Practices and

Interim Measures as defined in this rule,

other than those incorporated herein, in

accordance with Section 576.045(3)(b),

Florida Statutes; and, (b) modify adopted

Best Management Practice and Interim

Measures as defined in this rule based upon

submission of adequate data in accordance

with Section 576.045(3)(b), Florida Statutes.

(5) Approved Nitrogen BMPs

(a) Shadehouse Grown Leatherleaf Ferns.

The BMP for Shadehouse grown leatherleaf

ferns found in the University of Florida,

Cooperative Extension Service, Institute of

Food and Agricultural Sciences Bulletin 300

(published February 1995), Irrigation and

Nutrient Management Practices for Commercial

Leatherleaf Fern Production in Florida" is

hereby adopted. Copies may be obtained from

Central Florida Research and Education Center,

Institute of Food and Agricultural Sciences,

University of Florida, 2807 Binion Road,

Apoka, Florida 32707. The associated record

keeping requirements specified in "Record-

keeping For The Nitrogen Best Management

Practices For Shadehouse Grown Leatherleaf

Ferns" dated 12-01-95 is also adopted.

Copies are available from the Department of

Agriculture and Consumer Services, Division

of Agricultural Environmental Services,

3125 Conner Blvd., Doyle Conner Building,

Tallahassee, Florida 32399-1650.

(6) (a) Approved Nitrogen Interim Measures.

(b) Citrus. [The approved "Nitrogen

Interim Measure For Florida Citrus", dated

12-01-95], and the associated recordkeeping

requirements dated 12-01-95 [are hereby

adopted and incorporated by reference into

this rule]. Copies may be obtained from the

Department of Agriculture and Consumer

Services, Division of Agricultural Environ-

mental Services, 3125 Conner Blvd. Doyle

Conner Building, Tallahassee, Florida

32399-1650. The foregoing documents are

incorporated by reference into this rule.

[Emphasis added]

Specific Authority 576.045 FS. Law

Implemented 576.045. History - New

2. Section 576.011(2), Florida Statutes, provides:

(2) "Best-management practices" means

practices or combinations of practices

determined by research or field testing in

representative sites to be the most

effective and practicable methods of

fertilization designed to meet nitrate

groundwater quality standards, including

economic and technological considerations.

3. Because of the lack of research or field testing with citrus to

determine the most practicable methods of fertilization of citrus in conjunction

with nitrate groundwater quality standards, the Department is proposing the

Nitrogen Interim Measure for Florida Citrus rather than Best-management

practices for citrus. Interim Measures is not defined by statute. However, the

Department has defined Interim Measure in proposed rule 5E-1.023.

4. For 1, 2, and 3 year old citrus groves, the Approved Nitrogen Interim

Measure For Florida Citrus (Nitrogen Interim Measure), dated 12-01-95, provides

for maximum nitrogen (N) rates per calendar year to be determined by set amounts

of N per tree. The range of annual N rates for groves four years old or older is

set out in pounds per acre. For oranges the range is 120 - 240 pounds of N per

acre per year. For grapefruit the range is 120 - 210 pounds N per acre per

year.

5. On February 21, 1996, Petitioners filed a Petition challenging the

Department's proposed rule 5E-1.023 on the basis that the proposed rule was an

invalid exercise of delegated legislative authority. More specifically, the

Petitioners challenges the Nitrogen Interim Measure dated 12-01-95, and more

particularly, that portion of the Nitrogen Interim Measure setting the range of

annual N rates for grapefruit and oranges in groves four years old or older

which Petitioners contend is arbitrary and capricious.

6. GBS Groves, Inc. is a Florida corporation which owns a grapefruit grove

in Polk County, Florida and such corporation is solely owned by James T.

Griffiths and Anita N. Griffiths.

7. Withers and Harshman, Inc. is a Florida corporation owning grapefruit

groves in Polk County and Highlands County, Florida with its principal place of

business located in Sebring, Highlands County, Florida.

8. Petitioners would be substantially affected by the adoption of this

proposed rule and thereby have standing to bring this action.

9. The parties have stipulated that:

(a) on November 5, 1993, the Department

gave notice in the Florida Administrative

Weekly of its intent to adopt proposed rule

5E-1.023; and

(b) proposed rule 5E-1.023 implements

Section 576.045(6), Florida Statutes, by:

(1) establishing procedures for landowners

and leaseholders to submit notice of intent

to comply with nitrogen best management

practices (BMPs) and interim measures; (2)

adopting a specific BMP for shadehouse

grown fern; and (3) adopting an interim

measure for citrus.

10. Petitioners concede that their challenge to the proposed rule is based

solely on Section 120.52(8)(e), Florida Statutes, in that the proposed rule is

arbitrary and capricious.

11. Prior to, and independent of, the Department's work on proposed rule

5E-1.023, the faculty of the University of Florida, Institute of Food and

Agricultural Sciences (IFAS), had begun work on revising IFAS's citrus

fertilization guidelines. This revision eventually became SP 169, Nutrition of

Florida Citrus Trees (SP 169), and supersedes the Agricultural Experiment

Station Bulletin 536 series A through D, Recommended Fertilizers and Nutritional

Sprays for Citrus (Bulletin 536), which had provided guidelines for Florida

citrus fertilization since 1954. SP 169 is the official position of IFAS on the

subject of nutritional requirements for citrus in Florida.

12. Sometime around August 1994, Department met with and requested IFAS to

provide the Department with a interim measure for citrus fertilization which

could be adopted by the Department. The Department reviewed the first draft of

the proposed interim measure for citrus fertilization prepared by IFAS and

concluded that it would not be acceptable to the citrus industry because it was

too detailed. Thereafter, the first draft was revised by IFAS and now appears

as: 6. Fertilizer Guidelines, SP 169, pages 21 through 25.

13. While IFAS's interim measure contains many recommendations, the

recommendation most relevant to this proceeding is the recommended range of the

annual rate of N for groves four years old or older. The recommended rates are

expressed in pounds of N per acre per year. For oranges a range of 120 - 200

pounds of N per acre per year is recommended. For grapefruit a range of 120 -

160 pounds of N per acre per year is recommended. For other varieties a range

of 120 - 200 pounds per acre per year is recommended. SP 169 also provides the

criteria, including, but not limited to, soil load, varieties, leaf and soil

analysis, fertilizer placement and application frequency and timing for

determining a rate within the recommended range and to exceed the upper level of

the range. Using these criteria a range of 120 - 180 pounds of N per acre per

year for grapefruit can be supported and range of 120 - 240 pounds of N per acre

per year for oranges can be supported.

14. SP 169 also recommends that all available sources of N, including, but

not limited to, organic sources and foliar applications, be included in the

calculation of the annual N rate. Also recommended is that while the annual N

rate may be exceeded in any given calendar year, the average annual rate over

three years should not exceed the guidelines.

15. Subsequent to receiving the proposed citrus interim measure from IFAS,

the Department held a series of meetings and public workshops wherein growers

and representatives from the fertilizer industry and grower organizations were

given an opportunity to be heard and to make suggestions.

16. In an effort to make the interim measure more flexible so as to gain

industry acceptance, the Department compromised on several of the citrus

fertilization guidelines set out in SP 169. The comprises were: (a) not to

include any N from foliar application in the calculation of the annual N rate;

(b) to include only fifty percent of the total N content of the source from all

organic sources in the calculation of the annual rate of N; and (c) increase the

recommended range of the annual rate of N for grapefruit and oranges to 120 -

210 pounds per acre and 120 - 240 pounds per acre, respectively, without

considering the criteria set out in SP 169 for determining a rate within the

recommended range or to exceed the upper limits of the range.

17. In deciding not to include any N from foliar application in the

calculation of the annual rate of N, the Department considered: (a) the fact

that N from foliar application would be quickly absorbed through the leaf and

reduce the likelihood of any N leaching into the ground water; (b) that the cost

of foliar application of N would prevent the indiscriminate use of foliar

application of N; and (c) that foliar application would give the grower wishing

to obtain maximum yield a source of N not included in the calculation of the

annual rate. However, the Department did not consider the additional cost of

the N to the grower who heretofore had used sources of N other than foliar

application for obtaining maximum yield.

18. In making the decision to include only 50 percent of the content of

the source of N from all organic sources the Department took into consideration

the public policy of encouraging the use of municipal sludge and other similar

products, and the fact that on an average only fifty percent of the content of

the source of N would be an available source of N. Although IFAS disagreed with

the Department on not counting all the N in organic sources, IFAS did agree that

since it was not known how much of the N in organic sources was immediately

available, the figure of 50 percent of the content of the source was as good a

figure as any.

19. Increasing the range of the annual rate of N per acre from 120 - 160

pounds to 120 - 180 pounds for grapefruit and from 120 - 200 pounds to 120 - 240

pounds for oranges came about as a result of a meeting on April 20, 1995, at

Florida Citrus Mutual. Apparently, the justification for the increase was due

to the recommendations contained in the Criteria for selecting a rate within the

recommended rate set out in SP 169, Fertilizer Guidelines which provides:

Crop load. Nitrogen requirements vary as

crop load changes. Replacement of N lost

by crop removal is the largest requirement

for N. Groves producing low to average

crops do no require high fertilizer rates.

Higher rates may be considered for very

productive groves. Rates for oranges up to

240 lb per acre may be considered for groves

producing over 700 boxes per acre. However,

rates above 200 lb per acre should be used

only if there is a demonstrated need based

on leaf analysis, and if optimal fertilizer

placement, timing, and irrigation scheduling

are employed. For grapefruit producing over

800 boxes per acre, 180 lb N may be considered.

20. The increase in the range of the annual rate per acre of N from 120 -

180 pounds to 120 - 210 pounds for grapefruit came about as result of Dr. Koo's

concern over a potassium deficiency. Most fertilizers are formulated on a 1 to

1 ratio of N and potassium, and the application of only 180 pounds of potassium

could result in a potassium deficiency. The Department did not consider if

citrus trees could absorb N and potassium in a ratio other than a 1 to 1 which

would have allowed the proper application of potassium without increasing the

annual N rate.

21. The following language appears in SP 169, Fertilizer Guidelines, 6.2

Bearing Trees:

Rates of 0.4 lb N per box for oranges land

0.3 lb N per box for grapefruit were

recommended previously. With good manage-

ment, oranges frequently exceed 600 boxes

per acre and grapefruit production is

commonly above 800 boxes per acre. Use of

0.4 lb N per box in groves producing over

500 boxes per acre results in application

of over 200 lb N per acre. The advantage

of rates above 200 lb has not been

demonstrated. Economic benefits are quest-

ionable, and the potential for groundwater

contamination increases. A significant

yield response to rates above 200 lb N per

acre appears unlikely, and other management

practices should be first evaluated if grove

performance at 200 lb N per acre is not

satisfactory.

22. Experts, both growers and researchers, testifying for Petitioners and

previous IFAS Research Bulletins on citrus fertilization, disagree with the

statements: (a) that the advantage of annual rates of N above 200 pounds per

acre has not been demonstrated; (b) that economic benefits of annual rates of N

above 200 pounds per acre are questionable; and (c) that a significant yield

response to annual rates of N above 200 pounds per acre appears unlikely. This

language also appears to be in conflict the language quoted above dealing with

the criteria, "Crop load". Petitioners' experts and previous IFAS Research

Bulletins disagree with the conclusion that there is a basis for a higher annual

rate of N per acre for oranges over grapefruit.

23. On November 14, 1995, the Department presented the citrus Interim

Measure which recommended a range of 120 - 210 pounds N per acre annual rate for

grapefruit and a range of 120 - 240 pounds N per acre annual rate for oranges to

the Fertilizer Technical Council. After hearing testimony on the merits of the

citrus Interim Measure, the Fertilizer Technical Council voted to recommend

changing the citrus Interim Measure to provide that oranges and grapefruit be

treated the same with a range of annual N rate per acre of 120 - 240 pounds for

both. The Commissioner of Agriculture did not accept the recommendation from

the Fertilizer Technical Council.

24. In addition to the Fertilizer Technical Council, a large segment of

the citrus industry, including, but not limited to, growers and grower

organizations, expressed their approval of using the same range of annual rates

of 120 - 240 pounds of N per acre for both oranges and grapefruit. However, the

Department had already compromised by increasing the maximum annual rate of

nitrogen per acre for grapefruit by 30 pounds above the maximum annual rate

suggested by IFAS in SP 169, while leaving the maximum annual rate of nitrogen

per acre for oranges at 240 pounds, the maximum rate suggested by IFAS in SP

169.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, this proceeding pursuant to Sections

120.54(4) and 120.57(1), Florida Statutes.

26. Sections 576.045(1), (4)(a)3., (5)(a)3. and (6), Florida Statutes,

provide in pertinent part:

(1) FINDINGS AND INTENT.--

(a) The Legislature finds that nitrate

residues have been found in groundwater and

drinking water in various areas throughout

the state at levels in excess of established

water quality standards. The Legislature

further finds that some fertilization

practices could be a source of nitrate

contamination.

(b) It is the intent of the Legislature

to improve fertilizer-management practices

as soon as practicable in a way that pro-

tects the state's water resources and pre-

serves a viable agricultural industry.

This goal is to be accomplished through

research concerning best-management prac-

tices and education and incentives for the

agricultural industry and other major

users of fertilizers.

* * *

(4) WAIVER OF LIABILITY.-- Notwith-

standing any provision of law, the Department

of Environmental Protection is not authorized

to institute proceedings against any person

under the provisions of s. 376.307(5) to

recover any costs or damages associated with

nitrate contamination of groundwater, or the

evaluation, assessment, or remediation of

nitrate contamination of groundwater,

including sampling, analysis, and restor-

ation of potable water supplies, where the

nitrate contamination of groundwater is

determined to be the result of the appli-

cation of fertilizers or other soil-applied

nutritional materials containing nitrogen,

provided the property owner or leaseholder:

* * *

3. Implements practicable interim measures

identified and adopted by the department

which can be implemented immediately or

according to rules adopted by the

department. . . .

* * *

(5) COMPLIANCE--If the property owner or

leaseholder implements best-management

practices that have been verified by the

Department of Environmental Protection to

be effective at representative sites and

complies with the following, there is a

presumption of compliance with state nitrate

groundwater quality standards:

* * *

3. Implements practicable interim measures

identified and adopted by the department

which can be implemented immediately or

according to rules adopted by the

department. . . .

* * *

(6) RULEMAKING.--

(a) The department, in consultation with

the Department of Environmental Protection,

Department of Health and Rehabilitative

Services, the water management districts,

environmental groups, the fertilizer

industry, and representatives from the

affected farming groups, shall adopt rules to:

1. Specify the requirements of best-

management practices to be implemented by

property owners and leaseholders.

2. Establish procedures for property

owners and leaseholders to submit the notice

of intent to comply with best-management

practices.

3. Establish schedules for implementation

of best-management practices, and of interim

measures that can be taken prior to adoption

of best-management practices.

4. Establish a system to assure the

implementation of best-management practices,

including recordkeeping requirements.

27. Petitioners contend that proposed rule 5E-1.023 is an invalid exercise

of delegated legislative authority in that the proposed rule is arbitrary and

capricious.

28. The burden is upon the Petitioners to demonstrate, by a preponderance

of the evidence, that the proposed rule is an invalid exercise of delegated

legislative authority. Agrico Chemical Co. v. Department of Environmental

Regulation, 365 So.2d 759 (Fla. 1st DCA. 1978), cert. denied, 376 So.2d 74 (Fla.

1979). An invalid exercise of delegated legislative authority is defined by

Section 150.52(8), Florida Statutes, which in pertinent part provides:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, function, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one

or more of the following apply:

* * *

(e) The rule is arbitrary or capricious.

29. The law is well settled on the definition of the terms arbitrary and

capricious. A rule or proposed rule is arbitrary or capricious if it is not

supported by fact or logic, if it was adopted without thought or reason, or if

it is not otherwise based on competent substantial evidence. Humana, Inc. v.

Department of Health and Rehabilitative Services, 469 So.2d 889 (1st DCA Fla.

1985). Specifically, a "capricious" action is one taken without thought or

reason, or which is taken irrationally. An "arbitrary" action is one taken that

is not supported by facts or logic or is despotic. See, Agrico, 365 So.2d 759.

The burden is placed on the Petitioners to demonstrate that the proposed rule is

arbitrary and capricious. Cataract Surgery Center v. Health Care Cost

Containment Board, 581 So.2d 1359 (Fla. 1st DCA 1991).

30. The Petitioners have failed to show by a preponderance of the evidence

that the proposed rule, specifically the "Approved Nitrogen Interim Measure For

Florida Citrus", is arbitrary or capricious, and thereby an invalid exercise of

delegated legislative authority. The Department did not act without thought or

reason, and its action was supported by facts and logic.

ORDER

Based on the foregoing, it is hereby

ORDERED that Petitioners' challenge to proposed rule 5E-1.023 is dismissed.

DONE AND ENTERED this 23rd day of September, 1996, in Tallahassee, Florida.

___________________________________

WILLIAM R. CAVE, 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 23rd day of September, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 96-1426

The following constitutes my specific rulings, pursuant to Section

120.59(2), Florida Statutes, on all of the proposed findings of fact submitted

by the parties in this case.

Petitioners' Proposed Findings of Fact.

1. Proposed findings of fact 1-6, 9-12, 14, 15, 17, 18, 21, 67 and 76-78,

are adopted in substance as modified in Findings of Fact 1 through 24.

2. Proposed findings of fact 7, 13, 22-66, 68-75, 79-95 are neither

material nor relevant.

3. Proposed finding of fact 8 is adopted except that there was no proposed

interim BMP.

4. Proposed findings of fact 16, 19, 20 are adopted except that the

Department's action was neither arbitrary nor capricious.

Department's Proposed Findings of Fact.

1. Proposed findings of fact 1 - 15 are adopted in substance as modified

in Findings of Fact 1 through 24.

COPIES FURNISHED:

Honorable Bob Crawford

Commissioner of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler

General Counsel

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Dr. James T. Griffiths

2930 Winter Laske Road

Lakeland, Florida 33803

Robert G. Worley, Esquire

Department of Agriculture and

Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO APPEAL

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.