07-000369RU Adam M. Harden vs. Tampa Port Authority Status: Closed DOAH Final Order on Monday, July 2, 2007.

Summary: Respondent is not an agency subject to the rulemaking provisions of Chapter 120, Florida Statutes. Thus, the Division of Administrative Hearings is without jurisdiction to hear Petitioner`s challenge to Respondent`s rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADAM M. HARDEN, )

)

Petitioner, )

)

vs. ) Case No. 07-0369RU

)

TAMPA PORT AUTHORITY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to the Pre-hearing Stipulation of the parties

filed on February 19, 2007, this matter was submitted to the

Division of Administrative Hearings and its duly-designated

Administrative Law Judge, Carolyn S. Holifield, on stipulated

facts without an evidentiary hearing.

APPEARANCES

For Petitioner: Adam M. Harden, pro se

1611 1/2 North Howard

Tampa, Florida 33607

For Respondent: Robert M. Birrenkott, Esquire

Douglas P. Manson, Esquire

Carey, O'Malley, Whitaker

& Manson, P.A.

712 South Oregon Avenue

Tampa, Florida 33606

STATEMENT OF THE ISSUES

The issues in this case are: (1) whether the Tampa Port

Authority is an agency subject to the rulemaking requirements of

Chapter 120, Florida Statutes (2006) 1 ; and, if so, (2) whether

Respondent's statements and policies in an e-mail from the Tampa

Port Authority's general counsel constitute an unadopted rule

within the meaning of Section 120.56, Florida Statutes; and

(3) whether specified provisions in the Tampa Port Authority's

"rules" are an invalid exercise of delegated legislative

authority.

PRELIMINARY STATEMENT

On January 19, 2007, Petitioner, Adam M. Harden

(Petitioner), filed a pleading entitled, "Rule Challenge in

Accordance with F.S. 120.56." In that pleading, Petitioner

alleges that the Tampa Port Authority, through its general

counsel, made a written agency statement in an e-mail dated

December 29, 2006, without following the requirements for

rulemaking provided in Chapter 120, Florida Statutes.

Petitioner also challenges specific provisions in existing

written statements that are compiled as the "Tampa Port

Authority Submerged Lands Management Rules," as being invalid

under Section 120.56, Florida Statutes. 2

On January 22, 2007, the case was assigned to the

undersigned. By Notice of Hearing, the final hearing was

scheduled for February 21, 2007.

Prior to the final hearing, on February 19, 2007, the

parties filed a Joint Motion for Cancellation of Hearing and a

Pre-Hearing Stipulation. The Joint Motion for Cancellation of

the Hearing represented that the parties stipulated that

(1) there is no necessity for a hearing because there are no

disputed factual issues; (2) the primary legal issue is whether

the Tampa Port Authority is an "agency" pursuant to Subsection

120.52(1), Florida Statutes, for purposes of rulemaking; and

(3) the issues can be better addressed through the submission of

written briefs and exhibits since there are no witnesses for the

proceeding.

In the Pre-Hearing Stipulation, the parties proposed a

briefing schedule requiring briefs/opening statements to be

served on February 21, 2007, and proposed final orders to be

served on March 1, 2007. In an Order issued February 20, 2007,

the hearing was cancelled, and the briefing schedule, as

proposed by the parties, was established. A subsequent request

for an extension of time to file proposed final orders on

March 5, 2007, was also granted.

The parties timely filed briefs/Opening Statements,

Proposed Final Orders, and exhibits. Petitioner filed six

exhibits 3 and the Tampa Port Authority submitted two exhibits, 4

all of which were received into evidence. The briefs/Opening

Statements, Proposed Final Orders, and exhibits have been

considered in preparation of this Final Order.

FINDINGS OF FACT

1. Petitioner is an applicant for a marine construction

permit from Respondent.

2. Respondent, Tampa Port Authority, is the local

authority empowered to issue permits for marine construction in

areas within its jurisdiction.

Legislative History of Tampa Port Authority

3. The Legislature enacted Chapter 23338, Laws of Florida

(1945) (hereinafter referred to as the "1945 Act" or "Chapter

23338"), which established a Port District in Hillsborough

County, Florida, to be known as the "Hillsborough County Port

District" (hereinafter referred to as "Hillsborough County Port

District" or "Port District").

4. Pursuant to Section 2 of Chapter 23338, the

Hillsborough County Port District comprised and included the

territory within Hillsborough County as described in the 1945

Act. However, the designated territory did not include all of

Hillsborough County.

5. The 1945 Act created and designated the Hillsborough

County Port Authority as the governing body and authority for

the Hillsborough County Port District. Later, the name of the

governing entity for the Port District was changed from the

Hillsborough County Port Authority to the Tampa Port Authority 5

(hereinafter referred to as the "Tampa Port Authority" or "Port

Authority").

6. The Tampa Port Authority is, and has been since its

inception, a political and corporate body whose operation is a

proper governmental function." 6

7. Chapter 23338 was a special act, which, by it own

terms, would become effective "only upon the affirmative vote of

a majority of the votes cast at a special election" called and

conducted by the Hillsborough County Election Board. 7 The 1945

Act further provided that only "duly registered and qualified

voters residing within the territorial boundaries of the

[Hillsborough County Port] District were eligible to vote" in

the special election. See § 23 of Chap. 23338.

8. The referendum passed and, thereupon, the 1945 Act

became effective.

9. In January 1948, the submerged lands located within the

boundaries of the Port District, as described in the 1945 Act

and pursuant to the Certificate of Territorial Designation

No. 19396, were conveyed to the Tampa Port Authority. 8 The

submerged lands conveyed to the Tampa Port Authority were within

the boundaries of Hillsborough County and included in the

Government Channel in Hillsborough Bay and the waters of Tampa

Bay and Old Tampa Bay, all located in Hillsborough County,

Florida.

10. Chapter 70-716, Section 2, Laws of Florida, revised

the Port Authority's enabling act by expanding the territory of

the Hillsborough County Port District to "comprise and include

all the territory within Hillsborough County."

11. In November 1970, in accordance with Chapter 70-716,

Section 2, Laws of Florida, and pursuant to the Certificate of

Territorial Designation No. 25215, all the submerged lands lying

within Hillsborough County were conveyed to the Tampa Port

Authority. 9

12. As a result of the 1970 conveyance, the jurisdiction

of the Tampa Port Authority was extended to include all the

submerged land within the Port District.

13. Since 1970, the Hillsborough County Port District has

comprised and included all of the territory within Hillsborough

County, including all the submerged lands lying within that

county. See Chap. 70-716, § 2; and Chap. 95-488, § 2, Laws of

Florida.

14. In 1984, the Legislature enacted Chapter 84-447, Laws

of Florida, which superseded and repealed Chapter 23338, as

amended. Eleven years later, the Legislature enacted

Chapter 95-488, Laws of Florida, which superseded and repealed

Chapter 84-447, Laws of Florida. The foregoing acts made no

changes affecting the designated geographic territory of the

Hillsborough County Port District. Further, those acts made no

significant or substantive changes regarding the powers and

duties of the Tampa Port Authority. Rather, Chapter 84-447,

Laws of Florida, and later, Chapter 95-488, Laws of Florida,

merely consolidated, compiled, and codified extant laws

pertaining to the Hillsborough County Port District.

15. The legislative intent in enacting Chapter 84-447 and,

subsequently, Chapter 95-488, Laws of Florida, was to "preserve,

confirm, and perpetuate the ratification by referendum of the

Hillsborough County Port District and the Hillsborough County

Port Authority by the electorate of the Port District." See

Chap. 84-447, § 1 and Chap. 95-488, § 1, Laws of Florida.

Jurisdiction, Powers, and Duties of the Tampa Port Authority

16. The Tampa Port Authority has "title to, right of entry

upon, and the right to regulate the improvement of any and all

submerged lands belonging to the State of Florida contained

within the port district," subject to the riparian rights of

respective owners of the uplands adjacent thereto. See Chap.

95-488, § 6, Laws of Florida.

17. The Tampa Port Authority has exclusive jurisdiction,

control, supervision and management over all publicly-owned

docks and wharfs in Hillsborough County Port District.

18. The Tampa Port Authority is required to make or cause

to be made investigations, studies, surveys, plans, drawings,

etc., as are necessary and, thereafter, prepare and adopt a

comprehensive plan for development and improvement of the harbor

and shipping facilities of that port district. See Chap.

95-488, § 5, Laws of Florida.

19. The Tampa Port Authority has "all the powers necessary

to carry out the provisions of the act" which created the

authority. The Tampa Port Authority has the specific

responsibility of planning and of carrying out plans for the

long-range development of the facilities of and traffic "through

the port in the [P]ort [D]istrict." See Chap. 95-488, § 7, Laws

of Florida.

20. In addition to the foregoing, the Tampa Port Authority

is empowered to do the following:

(a) operate, manage, and control all projects

acquired or constructed under this act;

(b) exercise such police powers as it deems

necessary for the effective control and regulation of

all facilities, areas, and districts under its

jurisdiction;

(c) adopt rules and regulations governing the

speed, operation, docking, movement, and stationing of

all watercraft plying waterways in the port district

under the jurisdiction of the Port Authority; and

(d) subject to state and federal law, regulate,

control, license, and establish safety regulations for

any common carrier of passengers by water which common

carrier is operated for compensation in intrastate

commerce over a regular route and which embarks from

and returns to any portion of the waters within the

port district.

See Chap. 95-488, §§ 7(k),(n), (s), and (y), Laws of

Florida.

Marine Construction in the Port District

21. Chapter 95-488, Section 25, Laws of Florida, sets

forth the comprehensive scheme for marine construction in the

Hillsborough County Port District, including the application and

approval process for such construction.

22. Chapter 95-488, Section 25(b), Laws of Florida,

provides that anyone filling or dredging "within the boundaries

of the [P]ort [D]istrict and bordering on or in the waters of

the [P]ort [D]istrict" is required to make application to the

Tampa Port Authority for the appropriate permit authorization.

23. For the purposes of regulation of marine construction,

the term, "waters of the district," is defined as follows:

"Waters of the district" means all waters

lying within the port district which are

affected by the ebb and flow of the tide;

Lake Thonotosassa; Lake Keystone; and those

portions of the Hillsborough River, Alafia

River and Little Manatee River within the

port district upstream from Tampa Bay

to the limits of sovereign submerged land

ownership. " [Emphasis added.]

Chapter 95-488, § 25 (a)(13), Laws of Florida.

24. Based on the definition above, the regulatory

requirements for marine construction are limited to the confines

of the Hillsborough County Port District, which is limited to

the territorial boundaries of Hillsborough County.

25. The Hillsborough County Port Authority is required to

adopt rules and regulations regarding the receipt, form, and

content of the applications for marine construction permits.

See Chap. 95-488, § 25(a)(13)(h), Laws of Florida.

26. Chapter 95-488, Section 25(n), Laws of Florida,

authorizes the Tampa Port Authority to adopt minimum

construction specifications for all marine construction projects

subject to approval under that section.

27. At issue in this proceeding are the Tampa Port

Authority's requirements for marine construction in the

Hillsborough County Port District provided by Chapter 95-488,

Subsection 25(n), Laws of Florida.

28. The Port Authority's special acts have provided for

specific power to adopt rules and regulations under a procedure

that requires notice and a public hearing on the rules being

adopted. The process for adoption of rules and regulations of

the Tampa Port Authority is specifically mandated by the

Legislature in the Port's enacting legislation.

29. The rulemaking procedures specified by Chapter 95-488,

Section 25(n), Laws of Florida, which govern marine construction

in the Port District, state as follows:

Prior to the adoption of such

specifications, the port authority shall

conduct a public hearing to consider the

impact of the proposed specifications.

Notice of such hearing, specifying time and

place shall follow the same notice procedure

as provided in subsection (e).

The referenced subsection (e) requires notice in a newspaper of

general circulation, published in the Hillsborough County Port

District, at least 20 days prior to the hearing. Chap. 95-488,

§ 25(e), Laws of Florida.

30. There are no provisions in either general or special

law or existing judicial decisions that make the Tampa Port

Authority expressly subject to the Administrative Procedures Act

(APA) for rulemaking. 10

Ultimate Findings

31. The Tampa Port Authority was created by a special act

and, as the governing body of the Hillsborough County Port

Authority, operates only within Hillsborough County.

32. The Tampa Port Authority has not been made expressly

subject to the APA for rulemaking procedures.

33. The Tampa Port Authority does not consider itself an

agency subject to Chapter 120, Florida Statutes, rulemaking

requirements. Consequently, the Port Authority has not complied

with any of the Chapter 120, Florida Statutes, requirements for

the adoption of its rules challenged by Petitioner.

34. The Tampa Port Authority admits that the alleged

"rules and agency statements" challenged by Petitioner were not

adopted pursuant to Subsection 120.54(1)(a), Florida Statutes.

Further, the Port Authority stipulates that it would not meet

the requirements of Subsection 120.52(8)(a), Florida Statutes,

since the Tampa Port Authority's rules at issue in this

proceeding were not adopted pursuant to Chapter 120, Florida

Statutes, requirements.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.56, Florida Statutes.

36. There is no dispute as to the material facts in this

case. The preliminary issue which must be determined is whether

the Tampa Port Authority is an agency within the meaning of

Chapter 120, Florida Statutes, and, therefore, subject to the

rulemaking provisions therein.

37. Subsection 120.52(1), Florida Statutes, defines

"agency" as follows:

(1) "Agency" means:

(a) The Governor in the exercise of all

executive powers other than those derived

from the constitution.

(b) Each:

1. State officer and state department, and

each departmental unit described in

s. 20.04.

2. Authority, including a regional water

supply authority.

3. Board.

4. Commission, including the Commission on

Ethics and the Fish and Wildlife

Conservation Commission when acting pursuant

to statutory authority derived from the

Legislature.

5. Regional planning agency.

6. Multicounty special district with a

majority of its governing board comprised of

nonelected persons.

7. Educational units.

8. Entity described in chapters 163, 373,

380, and 582 and s. 186.504.

(c) Each other unit of government in the

state, including counties and

municipalities, to the extent they are

expressly made subject to this act by

general or special law or existing judicial

decision.

This definition does not include any legal

entity or agency created in whole on in part

pursuant to chapter 361, part II, any

metropolitan planning organization created

pursuant to s. 339.175, any separate legal

or administrative entity created pursuant to

s. 339.175 of which a metropolitan planning

organization is a member, an expressway

authority pursuant to chapter 348, any legal

or administrative entity created by an

interlocal agreement pursuant to

s. 163.01(7), unless any party to such

agreement is otherwise an agency as defined

in this subsection, or any multicounty

special district with a majority of its

governing board comprised of elected

persons; however, this definition shall

include a regional water supply authority.

38. The above-quoted definition of "agency" refers to

three types of agencies that are subject to the requirements of

Chapter 120, Florida Statutes. Clearly, two of the three types

do not apply in this case. First, Subsection 120.52(1)(a),

Florida Statutes, which refers to the Governor, is inapplicable

in this case. Second, the category of agencies listed in

Subsection 120.52(1)(c), Florida Statutes, does not apply in

this case. That subsection defines as agencies subject to

Chapter 120, Florida Statutes, units of government that are

expressly made subject thereto by special or general law or

judicial precedent. Here, the Tampa Port Authority has not been

expressly made subject to the provisions of Chapter 120, Florida

Statutes, by special or general law or judicial precedent.

39. Any analysis of whether the Tampa Port Authority is an

"agency" must be considered under Subsection 120.52(1)(b),

Florida Statutes. That section lists several entities,

including "authority," "board," and "commission," as being

agencies within the meaning of Subsection 120.52(1), Florida

Statutes. However, there is no legal precedent to conclude that

the name or label assigned to an entity is dispositive of

whether such entity is an "agency" under Subsection 120.52(1),

Florida Statutes. See Eckert v. Board of Commissioners of the

North Broward Hospital District , 720 So. 2d 1151 (Fla. 4th DCA

1998); Rubinstein v. Sarasota County Public Hospital Board , 498

So. 2d 1012 (Fla. 2nd DCA 1986); Booker Creek Preservation, Inc.

v. Pinellas Planning Council , 433 So. 2d 1306 (Fla. 2nd DCA

1983); Hillsborough County Environmental Protection Commission

v. Williams , 426 So. 2d 1285 (Fla. 2nd DCA 1983); and Amerson v.

Jacksonville Electric Authority , 362 So. 2d 433 (Fla. 1st DCA

1978). In each of the foregoing cases, notwithstanding the

designated name of the public entity (i.e., "board,"

"commission, "district," or "authority"), each was held not to

be "agencies" under Subsection 120.52, Florida Statutes.

40. In considering whether an entity is an "agency"

subject to Chapter 120, Florida Statutes, the Second District

Court of Appeals, the venue of the Tampa Port Authority has

applied the "territorial test." See Rubinstein , 498 So. 2d

1012; Booker Creek , 433 So. 2d 1316; and Williams , 426 So. 2d

1285. The territorial test examines the geographic scope of the

governmental body (i.e., whether the entity has the authority to

operate outside of a single county) to determine if the entity

is more similar to a state agency or a unit of local government.

41. In Rubinstein , 498 So 2d. at 1012, the issue was

whether the Sarasota County Public Hospital Board was a unit of

local government or an agency subject to Chapter 120, Florida

Statutes. For guidance in addressing this issue, the court

considered and cited its opinion in Booker Creek Preservation ,

433 So. 2d at 1307, in which it stated:

[W]e rejected Booker Creek's functional"

argument in favor of an approach geared more

toward the territorial jurisdiction of the

body in question. The planning commission

operated wholly within Pinellas County, with

no authority outside that county, and was

not comparable in jurisdiction to a

statewide agency or even a regional,

intercounty agency. Id.

Rubinstein , 498 So. 2d at 1014.

42. The Court applied the territorial test in Rubinstein

and concluded that the Sarasota County Hospital Board is

"coextensive with the county in which it operates." Id. at

1214. Based on that conclusion and consistent with its position

in Booker Creek , the Court in Rubinstein , 498 So. 2d at 1014,

held that the Sarasota County Hospital Board was not an agency

within the scope of the APA. 11

43. Applying the territorial test to this case, the Tampa

Port Authority is not an agency within the meaning of Subsection

120.52(1), Florida Statutes, and thus, is not subject to the

rulemaking requirements in Chapter 120, Florida Statutes.

44. In the instant case, the Tampa Port Authority was

created by special law and operates wholly within Hillsborough

County. The enabling act defines its jurisdiction to be within

the Hillsborough County Port District, which is limited to a

specific confined territory. Pursuant to Chapter 98-488,

Section 2, Laws of Florida, the Hillsborough County Port

District comprises and includes only "all of the territory

within Hillsborough County," including the water and submerged

lands therein.

45. The Tampa Port Authority's jurisdiction is limited to

the territory that comprises the Hillsborough County Port

District. Chap. 95-488, §§ 5, 6, and 7, Laws of Florida.

46. In light of the foregoing, the Tampa Port Authority is

not an "agency" pursuant to Subsection 120.52(1), Florida

Statutes. Therefore, the Division of Administrative Hearings is

without jurisdiction to address Petitioner's challenge to

"statements" or "rules" of the Tampa Port Authority or any

issues related thereto.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that

1. The Tampa Port Authority is not an agency under

Subsection 120.52, Florida Statutes.

2. The Division of Administrative Hearings does not have

jurisdiction to consider Petitioner's rule challenge filed in

this proceeding.

DONE AND ORDERED this 12th day of July, 2007, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of July, 2007.

ENDNOTES

1/ All citations are to the 2006 Florida Statutes, unless

otherwise indicated.

2/ Petitioner challenges the following Tampa Port Authority

Submerged Land Management Rules at II.D.2.e., V.A.1.b. and g.,

V.A.2.a. and h., V.A.3.h.(2), V.A.3.(i)(1) and V.A.3.k.(1).

Petitioner inadvertently mislabeled the last three challenged

rule provisions in his initial pleading as V.A.2. when, in fact,

the rule sections quoted are contained in the V.A.3. sequence of

rule provisions. These "rules" deal with the placement of or

removal of material or structures in "Waters of the District,"

pursuant to Chapter 95-488, Section 25(13), Laws of Florida.

3/ Petitioner's Exhibit 1--Map 24" x 36", Titled "Tampa Port

Authority Port District and Vicinity"; Petitioner's Exhibit

2--Port Authority, "Comprehensive Annual Financial Report"

Fiscal 2005; Petitioner's Exhibit 3--Port District Territorial

Certificates; Petitioner's Exhibit 4--Tampa Port Authority

Submerged Land Management Rules; Petitioner's Exhibit 5--Current

Navigational Chart of Tampa Bay Estuary based on N.O.A.A.

No. 11416; and Petitioner's Exhibit 6--Tampa Port Authority

Enabling Act, compiled.

4/ Tampa Port Authority's Exhibit 1--the Compilation of the

Special Acts for the Hillsborough County Port District and Tampa

Port Authority; and Tampa Port Authority's Exhibit 2--Florida

Joint Legislative Committee on Governmental Rules and

Regulations Final Bill Analysis No. SB/HB 107 (Senate Bill 107).

5/ Chapter 63-1400, Section 1, Laws of Florida, and subsequent

amendments by Chapter 84-447, Section 2, Laws of Florida, and

Chapter 95-488, Section 3(f), Laws of Florida.

6/ Chapter 23338, Section 4, Laws of Florida; and Chapter

95-488, Section 4, Laws of Florida.

7/ There are several references in acts related to the

Hillsborough County Port District that specify that the 1945 Act

creating that district is a special act. See Chap. 27600,

§ 1(a), Laws of Florida (1951); Chap. 57-1380, § 1, Laws of

Florida; and Chap. 63-1399, § 1, Laws of Florida.

8/ The Port Authority executed the Territorial Designation

No. 19396 on January 9, 1948, and it was recorded in Official

Record Book 2319, pages 189 through 193.

9/ The Port Authority executed the Certificate of Territorial

Designation 25215 on November 19, 1970 and it is recorded in the

Official Record Book, pages 194 through 199.

10/ There is only one provision of Chapter 95-488, Laws of

Florida, as amended, which references Chapter 120, Florida

Statutes, proceedings. Chapter 95-488, Section 7(y), Laws of

Florida, authorizes the Port Authority to impose fines and

penalties against persons operating common carriers in violation

of regulations adopted under that subsection or against common

carriers operated in violation of such regulations, but only

"[a]fter a hearing is conducted by the [P]ort [A]uthority in

accordance with chapter 120, Florida Statutes."

11/ In Eckert v. Board of County Commissioners of North Broward

Hospital , 720 So. 2d 1151, 1153 (Fla. 4th DCA 1998), the fourth

district court provides a precise interpretation of the analysis

in Booker and Rubinstein , stating: "To reach its decision, the

second district relied on decisions in which agencies were found

not to fall within the APA where they were not comparable to

statewide agencies or even regional, intercounty agencies.

Rather, the agencies operated only within a county and were

therefore more like a local or municipal entities rather than

state entities."

COPIES FURNISHED :

Adam M. Harden

1611 1/2 North Howard

Tampa, Florida 33607

Robert M. Birrenkott, Esquire

Carey, O'Malley, Whitaker

& Manson, P.A.

712 South Oregon Avenue

Tampa, Florida 33606

Douglas P. Manson, Esquire

Carey, O'Malley, Whitaker

& Manson, P.A.

712 South Oregon Avenue

Tampa, Florida 33606-2543

Charles E. Klug, Esquire

Tampa Port Authority

1101 Channelside Drive

Tampa, Florida 33602

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator

Bureau of Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399-0250

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 the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a 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.