09-002928RX Bernard Montgomery Myers vs. Department Of Environmental Protection And Board Of Trustees Of The Internal Improvement Trust Fund Status: Closed DOAH Final Order on Monday, August 24, 2009.

Summary: Rules for managing state lands were within statutory authority; no agency statements required to be adopted as rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERNARD MONTGOMERY MYERS, )

)

Petitioner, )

)

vs. ) Case No. 09-2928RX

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION and BOARD OF )

TRUSTEES OF THE INTERNAL )

IMPROVEMENT TRUST FUND, )

)

Respondents. )

)

FINAL ORDER

On July 8, 2009, a final administrative hearing in this case

was held in Tallahassee, Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: D. Kent Safriet, Esquire

Miguel Collazo, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

For Respondents: Michele Renee Forte, Esquire

Christopher T. Byrd, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

The issues in this case are the validity of Florida

Administrative Code Rules 18-14.003(4) and 18-21.004(1)(g)-(h)

and (7)(i), 1 and an alleged unadopted rule

prohibiting fish cleaning stations over sovereign submerged land

(SSL); and Petitioner's claim to an award of attorney's fees and

costs under Section 120.595(3)-(4), Florida Statutes. 2

PRELIMINARY STATEMENT

Petitioner, Bernard Montgomery Myers, filed his Petition for

an Administrative Determination Concerning the Validity of

Certain Adopted and Unadopted Rules (Petition) on May 28, 2009,

naming the Department of Environmental Protection (DEP) and the

Board of Trustees of the Internal Improvement Trust Fund (BOT) as

Respondents, and seeking an award of attorney's and costs under

Section 120.595(3)-(4), Florida Statutes. A pre-hearing

conference was held on June 1, and a final hearing was scheduled

for July 8, 2009. An Amended Petition was filed on June 9.

On June 26, 2009, Respondents filed a Motion to Dismiss

Petitioner's Challenge of Departments Alleged Unadopted Rule

Prohibiting Fish Cleaning Stations in the Amended Petition for

Administrative Determination Concerning the Validity of Certain

Adopted and Unadopted Rules (Motion to Dismiss). Among other

things, the Motion to Dismiss contested Petitioner's standing to

challenge the alleged fish cleaning station rule because the

challenge was waived by Petitioner's failure to timely challenge

a condition prohibiting fish cleaning stations in his 2005 joint

permit/authorization.

At the final hearing, the Motion to Dismiss was denied.

Petitioner testified, called Randall L. Armstrong (an expert in

environmental permitting and SSL proprietary authorizations), and

had Petitioner's Exhibits 1, 5, 7, and 8 admitted in evidence.

DEP called James W. (Jim) Stoutamire and had DEP Exhibits 1 and 5

admitted in evidence. Joint Exhibits 1-3 were admitted in

evidence.

After the presentation of evidence, DEP ordered a Transcript

of the final hearing, which was filed on July 22, 2009. The

parties were given ten days from the filing of the Transcript to

file proposed final orders, which have been considered (along

with a memorandum of law filed by Respondents).

FINDINGS OF FACT

1. Petitioner owns land on Lake Talquin. In 2003, he

obtained a joint permit and SSL consent of use to build a

seawall, a boat dock and a covered but not walled boathouse

there. In 2005 he obtained another joint permit and SSL consent

of use to build another boat dock and another covered boathouse

at another location on his property there.

2. Both joint permit/authorizations had general and special

conditions. Both had a general condition that limited the

permit/authorization to "the specific processes and operations

applied for and indicated in the approved drawings or exhibits"

and required Petitioner to operate and maintain the facilities

"to achieve compliance with the conditions of this permit." Both

have a specific condition prohibiting "fish cleaning stations

. . . on any structure that is located over the water." The 2003

joint permit/authorization has a specific condition prohibiting

any walls and doors on the boathouse and another specific

condition prohibiting the installation of water and electric

lines. The 2005 joint permit/authorization omits those specific

conditions.

3. DEP has issued a Notice of Violation (NOV) against

Petitioner for violating the 2005 joint permit/authorization's

specific condition prohibiting water and electric lines, for

exceeding the dimensions of the boathouse authorized by the joint

permit/authorization, for adding a second story structure of

livable space (with a kitchen, bathroom, shower, furnished

seating area, flat-panel television, and window air conditioning

unit) above the boathouse in the space between the roof rafters

and the top of the authorized first story structure.

4. DEP has not issued an NOV as to the 2003 joint

permit/authorization although it also has electric and water

lines.

5. DEP has not issued an NOV as to either joint

permit/authorization for having a fish cleaning station over the

water. An inspector told Petitioner that the fish cleaning

station on the newer facility was a violation of the 2005 permit

but that it was not an issue anymore after a change in the law.

Petitioner attempted but failed to prove that DEP or BOT

prohibits fish cleaning stations over water as a general rule.

It is not clear what change in the law has occurred with respect

to fish cleaning stations. In any event, the evidence was that

these facilities are prohibited when appropriate for protection

of water quality, not as a general rule.

6. Rule 18-14.003 states in pertinent part:

It shall be a violation of this rule for any

person or the agent of any person to

knowingly refuse to comply with any provision

of Chapter 253, F.S., willfully violate any

provision of Chapter 253, F.S., or to

willfully damage state land (the ownership or

boundaries of which have been established by

the state) or products thereof, by doing any

of the following:

* * *

(4) Maintain, place or build permanent or

temporary structures, including, but not

limited to, additions to existing structures;

all structures whose use is not water-

dependent; sanitary septic systems; fences,

docks and pilings; houses; oil rigs; and

utility installations on or over state land

without consent or authority from the Board

or Department.

Petitioner's rule challenge focuses on the part of the rule

specifying: "structures whose use is not water-dependent;

sanitary septic systems; . . . houses; . . . and utility

installations on or over state land without consent or authority

from the Board or Department."

7. Rule 18-21.004 states in pertinent part:

The following management policies, standards,

and criteria shall be used in determining

whether to approve, approve with conditions

or modifications, or deny all requests for

activities on sovereignty submerged lands.

(1) General Proprietary.

* * *

(g) Activities on sovereignty lands shall be

limited to water dependent activities only

unless the board determines that it is in the

public interest to allow an exception as

determined by a case by case evaluation.

Public projects which are primarily intended

to provide access to and use of the

waterfront may be permitted to contain minor

uses which are not water dependent if:

1. Located in areas along seawalls or other

nonnatural shorelines;

2. Located outside of aquatic preserves or

class II waters; and

3. The nonwater dependent uses are

incidental to the basic purpose of the

project, and constitute only minor nearshore

encroachments on sovereign lands.

(h) Stilt house, boathouses with living

quarters, or other such residential

structures shall be prohibited on sovereignty

lands.

* * *

(7) General Conditions for Authorizations.

All authorizations granted by rule or in

writing under Rule 18-21.005, F.A.C., except

those for aquaculture activities and

geophysical testing, shall be subject to the

general conditions as set forth in paragraphs

(a) through (i) below. The general

conditions shall be part of all

authorizations under this chapter, shall be

binding upon the grantee, and shall be

enforceable under Chapter 253 or 258, Part

II, F.S.

* * *

(i) Structures or activities shall be

constructed, operated, and maintained solely

for water dependent purposes, or for non-

water dependent activities authorized under

paragraph 18-21.004(1)(g), F.A.C., or any

other applicable law.

Petitioner's rule challenge focuses on the parts of this rule

prohibiting non-water dependent uses over SSLs, unless in the

public interest as determined by a case-by-case evaluation and

prohibiting stilt houses, boathouses with living quarters, and

other residential structures.

8. Petitioner contends that these rules: exceed their

legislative authority; enlarge, modify, or contravene the laws

they implement; are vague, lack adequate standards for BOT

decisions, and vest unbridled discretion in the BOT (particularly

by use of the terms "structure whose use is not water dependent,"

"utility installations," and "public interest by a case by case

evaluation"); and are arbitrary and capricious (for essentially

the same reasons they allegedly are vague). See § 120.52(8)(b)-

(e), Fla. Stat.

9. The term "structure whose use is not water dependent" is

not defined by rule, but Rule 18-21.003(68) states: "'Water

dependent activity' means an activity which can only be conducted

on, in, over, or adjacent to water areas because the activity

requires direct access to the water body or sovereign submerged

lands for transportation, recreation, energy production or

transmission, or source of water, and where the use of the water

or sovereign submerged lands is an integral part of the

activity."

10. DEP makes determinations of water-dependency on a case-

by-case review of the facts and circumstances presented in each

case. DEP does not have a list of factors used in making this

determination in any rule, non-rule policy, or other document.

11. According to the evidence, DEP considers docks and

boathouses to be water-dependent structures. A roof over a dock

may be considered water-dependent depending on the facts and

circumstances and whether the roof is an integral and required

part of the water-dependent activity. The same is true with

respect to benches that are part of a dock structure. Boating-

related paraphernalia such as boat paddles, life vests, and

similar items can be stored in empty rafters under the roof of a

permitted docking facility, but not rakes and shovels cannot,

because boating-related paraphernalia are associated with

transportation across water, while rakes and shovels are not.

Cans of gasoline are related to transportation on water, but

their storage on the rafters of a boathouse is not necessarily a

water-dependent activity because this is not considered to be

safe. Depending on the circumstances, DEP has authorized the

installation of electrical and water lines and sewage pump-out

systems on boat docking facilities. The installation of

electrical and water lines and sewage pump-out systems can be an

integral or required part of a public or private commercial

marina or docking facility, but generally not a noncommercial

dock. DEP once authorized the use of golf carts in connection

with a long private pier.

12. The evidence proved that reasonable people of common

intelligence can disagree on the interpretation and application

of the "not water-dependent" definition. Even experienced

consultants are required to check with DEP to be sure they are

interpreting and applying the definition correctly. DEP

employees sometimes are required to check with DEP headquarters

in Tallahassee to be sure they are interpreting and applying the

definition correctly. But the evidence did not prove that the

definition is vague, lacks adequate standards for BOT decisions,

or vests unbridled discretion in the BOT.

13. The term "utility installations" is reasonably clear

and is generally understood to mean the installation of water,

sewer, and electricity. The evidence did not prove that the term

is vague, lacks adequate standards for BOT decisions, or vests

unbridled discretion in the BOT.

14. The evidence did not prove that the term "public

interest by a case by case evaluation" is vague, lacks adequate

standards for BOT decisions, or vests unbridled discretion in the

BOT. The evidence was that DEP interprets the definition in the

sentence that immediately follows in Rule 18-21.004(1)(g) to

limit the "public interest" exception to certain "public

projects" (which BOT then broadly interprets to include

privately-owned marinas that are open to the public).

15. The evidence did not prove that the challenged parts of

Rules 18-14.003 and 18-21.004 are unsupported by logic or the

necessary facts, or were adopted without thought or reason or are

irrational.

CONCLUSIONS OF LAW

16. A substantially affected person can challenge a rule or

an unadopted agency statement that is required to be adopted as a

rule under Section 120.54(1)(a), Florida Statutes. See

§ 120.56(1)(a), (3)(a), and (4)(a), Fla. Stat.

17. As stipulated, Petitioner is substantially affected by

the challenged adopted rules. Petitioner has standing to

challenge the adopted rules both as an owner of riparian land and

as the recipient of an NOV for allegedly violating those rules.

18. Violation of the alleged fish cleaning station

unadopted rule was not charged in the NOV against Petitioner.

But if there were such an unadopted rule, Petitioner would not be

required to wait until he is charged with a violation before

challenging it. See Lanoue v. Dep't of Law Enforcement , 751

So. 2d 94, 98 (Fla. 1st DCA 1999). In addition, regardless of

the NOV, the alleged fish cleaning station unadopted rule would

substantially affect Petitioner as a riparian owner.

19. Respondents' Motion to Dismiss contended in part that

Petitioner has no standing to challenge the alleged fish cleaning

station unadopted rule because he did not timely challenge the

condition in his 2005 joint permit/authorization prohibiting fish

cleaning stations. Petitioner has waived challenges to those

conditions, and Petitioner cannot now challenge those conditions

without renouncing the benefits of his joint

permit/authorization. However, regardless of the status of the

2005 joint permit/authorization, Petitioner would have standing

as a riparian owner to challenge the alleged fish cleaning

station unadopted rule.

20. "The petitioner has a burden of proving by a

preponderance of the evidence that the existing rule is an

invalid exercise of delegated legislative authority as to the

rule can be declared invalid. See § 120.56(3)(b), Fla. Stat.

21. Section 120.52, Florida Statutes, provides in pertinent

part:

(8) "Invalid exercise of delegated

legislative authority" means action that goes

beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one of

the following applies:

* * *

(b) The agency has exceeded its grant

of rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(3)(a)1.;

(d) The rule is vague, fails to

establish adequate standards for agency

decisions, or vests unbridled discretion in

the agency;

(e) The rule is arbitrary or

capricious. A rule is arbitrary if it is not

supported by logic or the necessary facts; a

rule is capricious if it is adopted without

thought or reason or is irrational; . . . .

* * *

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by the

enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary and

capricious or is within the agency's class of

powers and duties, nor shall an agency have

the authority to implement statutory

provisions setting forth general legislative

intent or policy. Statutory language

granting rulemaking authority or generally

describing the powers and functions of an

agency shall be construed to extend no

further than implementing or interpreting the

specific powers and duties conferred by the

enabling statute.

The language following the lettered paragraphs of Section

120.52(8), Florida Statutes (sometimes referred to as the "flush

left" language) is reiterated in Section 120.536(1), Florida

Statutes. It is a "set of general standards to be used in

determining the validity of a rule in all cases." Sw. Fla. Water

Mgmt. Dist. v. Save the Manatee Club, Inc. , 773 So. 2d 594, 597-

98 (Fla. 1st DCA 2000). This standard has been held to mean that

Agencies have rulemaking authority only where

the Legislature has enacted a specific

statute, and authorized the agency to

implement it, and then only if the (proposed)

rule implements or interprets specific powers

or duties, as opposed to improvising in an

area that can be said to fall only generally

within some class of powers or duties the

Legislature has conferred on the agency.

Bd. of Trustees of the Internal Improvement Trust Fund v. Day

Cruise Ass'n, Inc. , 794 So. 2d 696, 700 (Fla. 1st DCA 2001),

clarified on reh. , 798 So. 2d 847 (Fla. 1st DCA 2001). See also

Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc. , 773

So. 2d at 599.

22. As to Section 120.52(8)(b), Florida Statutes, Rule 18-

14.003 cites Section 253.04(2), Florida Statutes, and 18-21.004

cites Sections 253.03(7) and 253.73, Florida Statutes, as their

rulemaking authority. Section 253.04(2), Florida Statutes,

actually does not provide for rulemaking authority, but Section

253.03(7) provides rulemaking authority for both rules. Section

253.03(7)(a), Florida Statutes, authorizes and directs the BOT

"to administer all state-owned lands and shall be responsible for

the creation of an overall and comprehensive plan of development

concerning the acquisition, management, and disposition of state-

owned lands so as to ensure maximum benefit and use." It also

authorizes BOT to adopt rules to implement "this act." Id.

Section 253.73, Florida Statutes, authorizes BOT to adopt rules

to implement Sections 253.67-253.75, Florida Statutes (which

include some of the statutes cited as the specific laws

implemented by Rule 18-21.004). Petitioner did not prove that

there is no specific rulemaking authority for the challenged

parts of Rules 18-14.003 and 18-21.004.

23. As to Section 120.52(8)(c), Florida Statutes, Rule 18-

14.003 cites Section 253.04, Florida Statutes, and Rule 18-21.004

cites Sections 253.001, 253.03, 253.141, 253.68, 253.72, 253.74,

253.75, and 253.77, Florida Statutes, as the specific laws they

implement.

24. As to Rule 18-14.003, Subsection (1) of Section 253.04,

Florida Statutes, authorizes BOT to "police; protect; conserve;

improve; and prevent trespass, damage, or depredation upon the

lands and the products thereof, on or under the same, owned by

the state as set forth in s. 253.03." Subsection (2) of Section

253.04, Florida Statutes, authorizes BOT to fine any person who

"knowingly refuses to comply with or willfully violates" the

provisions of Chapter 253, or fails to comply with a BOT order

"to remove or alter any structure or vessel that is not in

compliance with applicable rules or with conditions of

authorization to locate such a structure or vessel on state-owned

land."

25. Rule 18-14.003(1) essentially provides that no

structures can be maintained, placed, or built on or over state-

owned land "without consent or authority" from BOT or DEP. The

syntax of the rule is poor, and specifying "all structures whose

use is not water-dependent; sanitary systems; fences; docks

and pilings; houses; oil rigs; and utility installations" seems

redundant and unnecessary.

26. Petitioner did not prove that the challenged parts of

Rules 18-14.003 (making it a violation to maintain, place or

build sanitary septic systems, houses, and utility installations

on or over state land without consent or authority from BOT)

enlarge, modify, or contravene the cited provisions of law

implemented.

27. As to Rule 18-21.004, Section 253.001, Florida

Statutes, states that all lands held in the name of BOT are "held

in trust for the use and benefit of the people of the state

. . . ." Section 253.03(1), Florida Statutes, charges BOT with

"the acquisition, administration, management, control,

supervision, conservation, protection, and disposition of all

lands owned by . . . the state . . . ." Section 253.03(15),

Florida Statutes, provides that BOT "shall encourage the use of

sovereign submerged lands for water-dependent uses and public

access." Section 253.141(1), Florida Statutes, recognizes

riparian rights that are incident to land bordering on navigable

waters, including the rights of ingress, egress, boating,

bathing, and fishing. Sections 253.68, 253.72, 253.74, and

253.75, Florida Statutes, deal with the lease or authorization to

use SSLs and water column for aquaculture activities, which

include support docking. See § 253.68(1), Fla. Stat. Section

253.77(1), Florida Statutes, prohibits any person from commencing

any activities "involving the use of [SSLs] or other lands of the

state [held by BOT] until the person has received the required

lease, license, easement, or other form of consent authorizing

the proposed use."

28. Petitioner did not prove that the challenged parts of

Rule 18-21.004 (prohibiting non-water dependent uses over SSLs

unless in the public interest as determined by a case-by-case

evaluation and prohibiting stilt houses, boathouses with living

quarters, and other residential structures) enlarge, modify, or

contravene the cited provisions of law implemented. It is

permissible to manage, control, and protect state-owned lands by

prohibiting certain things while allowing others. Specifically,

it is permissible to encourage water-dependent use and public

access by prohibiting most uses that are not water-dependent and

prohibiting stilt houses, boathouses with living quarters, and

other residential structures. Cf. Lost Tree Village Corp. v. Bd.

of Trustees of the Internal Improvement Trust Fund , 698 So. 2d

634 (Fla. 4th DCA 1997)(recognizing BOT's authority to preclude

the use of sovereign submerged land, and upholding BOT's decision

to prohibit the building of a bridge and the installation of

utility lines over its submerged land); Krieter v. Chiles , 595

So. 2d 111 (Fla. 3d DCA 1992)(upholding BOT's authority to

prohibit the building of docks on sovereign submerged land);

Graham v. Edwards , 472 So. 2d 803, 807 (Fla. 3d DCA

1985)(upholding BOT's authority to prohibit the building of

private docks on sovereign submerged land).

29. Petitioner contends that Day Cruise , supra , requires

the conclusion that the challenged rules do not have specific

authority and enlarge, modify, or contravene the cited provisions

of law implemented. However, that case involved a rule

regulating "vessels, floating homes, or any other watercraft"

adopted under the authority of Section 253.03(7)(b), Florida

Statutes, which gives BOT authority to "adopt rules governing all

uses of sovereignty submerged lands by vessels, floating homes,

or any other watercraft, which shall be limited to regulations

for anchoring, mooring, or otherwise attaching to the bottom."

In Day Cruise , the court held that paragraph (b) of the statute

limited BOT's rulemaking authority to adopt rules regulating

"vessels, floating homes, or any other watercraft." Day Cruise

does not limit the authority of BOT to adopt rules to create "an

overall and comprehensive plan of development concerning the

acquisition, management, and disposition of state-owned lands so

as to ensure maximum benefit and use." In addition, the rule

challenged in Day Cruise did not cite Section 253.73 as

rulemaking authority and did not cite Sections 253.67-253.75,

Florida Statutes, as the statutes being implemented.

30. Petitioner also relies on Dep't of Highway Safety and

Motor Vehicles v. JM Auto, Inc. , 977 So. 2d 733 (Fla. 1st DCA

2008), which upheld a determination that a rule was invalid for

not having specific statutory authority. But in that case the

only statutory authority for the challenged rule was a general

rulemaking authorization to adopt rules to implement a chapter of

the Florida Statutes. In this case, the rulemaking authorization

was for implementation of specific powers and duties.

31. Petitioner also relies on Smith v. Dep't of Corr. , 920

So. 2d 638 (Fla. 1st DCA 2005), which invalidated a rule charging

inmates for copying legal documents. In that case, there was a

statute generally authorizing rulemaking and a statute

authorizing the agency to "collect restitution and other monetary

assessments from inmates while they are incarcerated or under

supervision." Id. at 641-642. But there was no specific

statutory authority, as required by Sections 120.52(8)(b)-(c),

Florida Statutes, to make assessments against inmates. This case

is distinguishable in that there is both specific authority under

paragraph (b) and a statute to implement under (c) of Section

120.52(8), Florida Statutes.

32. By way of supplemental authority filed on August 19,

2009, Petitioner also cites to the recent decision in Lamar

Outdoor Advert. - Lakeland v. Fla. Dep't of Transp. , Case 1D08-

5369 (Fla. 1st DCA 2009), rendered August 19, 2009. However,

similar to Day Cruise and Smith , the statutory authority in Lamar

was specific to dimensions other than height, and was held to

exclude height. As a result, the agency rule addressing height

was held not to be authorized by the cited statutes.

33. The case of Frandsen v. Dep't of Envtl. Prot. , 829

So. 2d 267 (Fla. 1st DCA 2002), rev. den. , 845 So. 2d 889 (Fla.

2003), cert. denied , 540 U.S. 948, 124 S. Ct. 400, 157 L. Ed. 2d

279 (2003), is more similar to this case. There, the court

reviewed a challenge to Rule 62D-2.014(18), which pertained to

free speech activities in state parks. The cited authority for

the rule was Section 258.007(2), Florida Statutes, which granted

DEP the authority to adopt rules to carry out its specific

duties, which included the duty under Section 258.004, Florida

Statutes, to "supervise, administer, regulate, and control the

operation of all public parks” and to "preserve, manage,

regulate, and protect all parks and recreational areas held by

the state . . . ." The court held that these statutes provided

specific authority for the rule.

34. Similarly, in Hennessey v. Dep’t of Bus. & Prof. Reg. ,

818 So. 2d 697 (Fla. 1st DCA 2002), the court reviewed a

challenge to the validity of Rule 61D-6.002(1), which made race

animal trainers the absolute insurers of (i.e. , imposed on them

absolute liability for) the condition of the animals entered into

any race. Id. at 698. The cited statutory authority for the

rule included Sections 550.0251(3) and 550.2415(2) and (13),

Florida Statutes. Section 550.0251(3) required the agency to

"adopt reasonable rules for the control, supervision, and

direction of all . . . licensees, and for the holding,

conducting, and operating of all . . . races" and stated that

"the duty of exercising this control and power [over licensees

and races] is made mandatory upon the division." Section

550.2415(2) and (13) provided:

(2) Administrative action may be taken by

the division against an occupational licensee

responsible pursuant to rule of the division

for the condition of an animal that has been

impermissibly medicated or drugged in

violation of this section.

* * *

(13) The division shall adopt rules to

implement this section. The rules may

include a classification system for

prohibited substances and a corresponding

penalty schedule for violations.

The court held that these statutes provided specific authority

for the rule.

35. As to Section 120.52(8)(d), Florida Statutes,

Petitioner did not prove that the challenged parts of Rules 18-

14.003 and 18-21.004 are vague, lack adequate standards for BOT

decisions, or vest unbridled discretion in the BOT. At best,

Petitioner proved that reasonable people of common intelligence

could interpret and apply the rules differently.

36. Petitioner contends that a rule is vague if it

"requires performance of an act in terms that are so vague that

men of common intelligence must guess at its meaning." Sw. Fla.

Water Mgmt. Dist. v. Charlotte County , 774 So. 2d 903, 915 (Fla.

2d DCA 2001). See also Cole Vision Corp. v. Dep't of Bus. &

Prof. Reg. , 688 So. 2d 404 (Fla. 1st DCA 1997). The rules at

issue in this case require an application for a joint

permit/authorization to impact/use SSL. The permit process

specifies what is permitted and authorized. As a result, there

is no need for anyone to guess at what acts are prohibited or

required to be performed.

37. As to Section 120.52(8)(e), Florida Statutes,

Petitioner did not prove that the challenged parts of Rules 18-

14.003 and 18-21.004 are arbitrary or capricious (i.e. , that they

are unsupported by logic or the necessary facts, or are adopted

without thought or reason or are irrational).

38. As for the alleged unadopted fish cleaning station

rule, "[r]ulemaking is not a matter of agency discretion. Each

agency statement defined as a rule by s. 120.52 shall be adopted

by the rulemaking procedure provided by this section as soon as

feasible and practicable." § 120.54(1)(a), Fla. Stat. "'Rule'

means each agency statement of general applicability that

implements, interprets, or prescribes law or policy . . . ."

§ 120.52(16), Fla. Stat.

39. Under Section 120.56(4)(b), Florida Statutes,

Petitioner had the burden to prove the existence of an unadopted

agency statement that is required to be adopted as a rule under

Section 120.54(1)(a), Florida Statutes, but has not been adopted

as a rule. Petitioner failed to prove an "agency statement of

general applicability that implements, interprets, or prescribes

law or policy." Rather, the evidence was that fish cleaning

stations are prohibited when appropriate for protection of water

quality, not as a general rule.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, the Amended Petition to determine the invalidity of adopted

rules and unadopted agency statements (including the request for

an award of attorney's fees and costs) is denied.

DONE AND ORDERED this 24th day of August, 2009, in

Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of August, 2009.

ENDNOTES

1/ All rule references are to the version of the Florida

Administrative Code in effect at the time of the final hearing.

2/ All statutory references are to the 2009 codification of the

Florida Statutes.

COPIES FURNISHED :

D. Kent Safriet, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314-6526

Michele Renee Forte, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

Liz Cloud, Program Administrator

Florida Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Scott Boyd, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

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 agency 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.